Waivers and Inadmissibility

When a non-citizen is applying for a visa to visit the United States, he/she must be “admissible”. An admissible person has no conditions or characteristics which the U.S. government deems undesirable. Likewise, an “inadmissible” person falls into one of the categories of people that that the U.S. government seeks to exclude from entering the United States. These categories include people with various physical and mental disorders, people who have committed crimes, and people who have participated in activities the government deems subversive.

When a person who is seeking entrance into the United States, either on a permanent or temporary basis, falls into one of the categories of inadmissibility, he/she must either prove that inadmissibility does not apply in his/her case, or he/she must obtain a waiver (which is like a pardon). Waivers are not available for all the grounds of inadmissibility, as discussed below.

For instance, imagine a situation in which a man from Yemen (whose name is Fuad) comes to the United States as a visitor. He overstays his visa and remains in the United States for 2 years. Fuad then returns to Yemen to visit his family. He again wants to return to his second home in California, where he has a job and an apartment. When Fuad applies for a visitor’s visa at the consulate in Sanaa, he is refused. He has broken U.S. immigration laws by overstaying his visa. The consulate will not give Fuad a visa unless Fuad can prove that he is eligible for a waiver (a pardon) for violating U.S. immigration laws. How can he be eligible for a waiver? Unless Fuad has a wife or child in the United States who will suffer extreme hardship should Fuad not be allowed to return to the United States, Fuad will be denied a visa. In addition, since Fuad has been out of status for more than one year, unless he can obtain a waiver, he will be prevented from returning to the United States for 10 years.

The 1996 Immigration Reform law made many changes to the Immigration code. One of these changes is the “summary exclusion” law. This law empowers an immigration inspector at the airport to exclude and deport someone who is seeking admission to the U.S. without allowing the person the right to explain his/her case to an immigration judge. Under this law, if the inspector at the airport thinks a person seeking admission is making a misrepresentation about anything connected to his/her purpose in coming to the U.S., intent to return to his/her home country, or prior immigration history, the officer will exclude that person. Moreover, the person may not request entry for five years, unless a special waiver is granted.

Because of these harsh results, it is very important to understand the terms of your requested status (i.e., understand what you must need for the type of visa you are requesting). Never make any representations or use false documents.

If you are found by the officer to be inadmissible, you may request to withdraw your application to enter the U.S. in order to prevent having the five-year deportation order on your record. The immigration officer may allow you to do this in some cases.

Certain grounds for inadmissible cannot be overcome by a waiver. These grounds include (1) persons who have made false claims to U.S. citizenship, (2) persons who improperly obtain student status to attend a public elementary school or adult education program, or transfer from a private to a public program except as permitted, (3) persons who were previously deported and who subsequently attempt to enter the U.S. without permission, (4) stowaways, (5) draft evaders, (6) drug abusers or addicts, (7) drug traffickers, (8) spies and terrorists, etc.

As you can see, overcoming a ground of inadmissibility can be complicated. You will need to consult an experienced immigration attorney who will be able to analyze both the applicable immigration law and the maze of criminal laws that apply in a given case.

About the author: Kathleen Lord-Black is a U.S. immigration lawyer.  Her offices are located in downtown Vancouver, British Columbia.   She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the  American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada). www.immigration-etats-unis.com

Marriage Bona Fides Checklist

In every marriage-to-foreigner case, the Immigration Service will be closely examining affidavits and other documents that may prove that the marriage was entered into in good faith, and not solely for immigration benefits. The below checklist will be useful in gather such evidence.

Evidence needed to prove good-faith marriage, per Matter of Laureano, 19 I&N Dec. 1 (1983), includes the following which must be in the names of both spouses:

1. insurance policies
2. tax returns
3. bank accounts, lease, utility bills, credit cards
4. correspondence from one spouse to another before marriage
5. photos of the couple before and after marriage, and at marriage ceremony
6. notarized letters or affidavits from family, friends, or acquaintances stating how they know the couple, how long they have known the couple, and whether they believe the marriage is a valid, good-faith marriage (sample letter below)

Name
Address
Phone Number
Date

To Whom it may Concern:

I have known (couples' names) since (date). I saw them as a couple before their marriage (when? where?)and know that they knew each other before their wedding. (If this is the case.) I have visited them at their home (or have been in contact with them since their wedding) and know that they have a home together and are sharing a life together. (State any other reason why you think the marriage is a real one.) I state under penalty of perjury that the above is true and correct.

Signature (notarized)



About the author: Kathleen Lord-Black is a U.S. Immigration Lawywer.  Her offices are located in downtown Vancouver, British Columbia. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada).  www.immigration-etats-unis.com

How to Prepare for Your Marriage Fraud Interview

This article concerns primarily marriage cases, i.e., those cases in which a United States citizen marries a foreign national, files all the necessary papers for sponsoring his/her foreign spouse, and has received an appointment for an interview.

The interview notice is usually sent by mail. Therefore, it is essential that Immigration have your current address. Federal mail is not forwarded, and your appointment notice may be returned to Immigration undelivered, resulting in denial of your application based on abandonment. The interview is called the marriage fraud interview. If the interview date is not convenient, you may write or call the number listed on the form to reschedule the interview.

At the interview, the Immigration officer will ask questions in order to determine whether your marriage appears to be a true marriage, and not for the purposes of obtaining immigration benefits. These questions may include (1) all the questions on the Form I-130 you had previously filed, (2) descriptions of the documentation submitted with the I-130 and other forms, and/or (3) questions about your marriage itself.

Questions about the marriage are designed to determine whether a normal and valid family life exists. The Immigration officer is looking for a traditional marriage, and traditional family values. A prenuptial agreement, for example, shows separateness of assets and separate lives. It may be detrimental to proving a normal and valid family life. The officers are looking for shared risks and responsibilities, not preservation of individual assets at anticipated divorce or separation.

Questions an officer may ask at a marriage fraud interview may include:

What does he/she like for breakfast?
Who makes breakfast in the morning? Who does the dishes?
What does his/her father like to do with his/her spare time?
When is the last time you spoke to your in-laws?
Who knows about your marriage?
Do both families know each other? Were they present at the marriage?
What is his/her favorite food?
When is his/her birthday?

The officer may separate you and ask each of you the same question to see if you both give the same answer. If you each answer the question differently, you should be given a chance to explain the differences in your answers when you are brought back together.

The Immigration officer may videotape or record the interview.

Beware of the penalties of marriage fraud, including prison and fines. Immigration marriage fraud interviewers are skilled at detecting fraud, and it is very difficult to pass the marital interview unless there is a verifiable personal relationship.

Good ways to document and verify the marriage include (1) putting utility bills and property in both your names, (2) keeping a joint bank account and joint credit cards, (2) have both of your names on your lease or mortgage, (3) subscribe to magazines or newspapers in both your names listed above your home address, and (4) have joint insurance policies for health, auto, and life.

In addition, sworn affidavits from friends and family can help prove that you have a valid marriage. These affidavits are simply letters describing your marriage that are signed before a notary and contain a declaration stating under penalty of perjury that the information in the letter is true and correct.

Photographs of you and your spouse together are also very important. You should document your life with your spouse in photographs from the time you first met, through your wedding day, and until your spouse is granted full permanent residency. Whether you have a big wedding or you elope, you must take pictures of your wedding day. Take pictures of you with your spouse, but also take pictures of the friends and family members who attended your wedding. Photographs of you with your spouse in your daily lives together with friends and family in different places at different times show that you have a personal relationship with your spouse and his/her family.

About the author: Kathleen Lord-Black is a U.S. immigration Lawyer.  Her offices are located in Vancouver, British Columbia.   She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada).  www.immigration-etats-unis.com

How and When to Replace a Green Card

In the old days, a green card (also referred to as a Permanent Residency Card or I-551) was actually green, and had no expiration date. Now green cards expire every 10 years and must be replaced. This article will explain why both old and newer green cards that are about to expire should be replaced or renewed as soon as possible.

It is important to note that an expired green card does not mean that permanent residency status has expired. If, for instance, Customs and Border Patrol (CBP) encounters a person who has an expired 10-year green card at the border, they will furnish him/her with information on how to replace the green card, and will take no further action.

A green card is proof of permanent resident status in the United States, serves as valid identification, and serves as proof that an individual is eligible to live and be employed in the U.S. It is important to keep the green card up-to-date because, without a valid card, it may be difficult to prove permanent residency, and it may be affect an individual's ability to travel or prove eligibility to be employed in the U.S.

Green cards should be renewed as soon as possible because of pending rules promulgated by the United States Citizenship and Naturalization Service (USCIS) that are in the comment period until September 21, 2007. USCIS is seeking to require replacement of all of the older green cards that do not have expiration dates with cards that expire within 10 years. This will lead to an avalanche of applications and slower processing times. Those with expired cards (an estimated 750,000 filers) should apply early to beat the rush. USCIS itself, in its proposal, encourages early filing. Form I-90, which is the application to replace permanent resident card, is filed in order to renew or replace a green card. This form can be found on the Internet at www.uscis.gov. In many cases, the I-90 can be filed electronically on the USCIS website.

Be aware of Permanent Residency Cards that are valid for only two years. These are conditional Permanent Residency Cards and cannot be renewed. A conditional green card requires filing a petition to remove the conditions of permanent residency within 90 days of the expiration date of the conditional green card. This scenario occurs most often in marriage-to-foreigner cases in which the couple has been married for less than two years when their application is approved. The foreign spouse is initially given a conditional green card, with the advisement that a petition must be filed one year and nine months after the conditional green card has been issued. This creates a three-month window of time in which to file to remove the conditions of permanent residency. Both the foreign spouse and the sponsoring spouse sign the petition jointly.

In some cases, the parties divorce or the U.S. spouse simply refuses to cooperate. Then the foreign spouse must file for the permanent green card him/herself. However, the foreign spouse must first show one of the following three things:

1. That the couple have divorced, but their marriage was initially entered into in good faith; or
2. The deportation of the foreign spouse will cause the foreign spouse extreme hardship, greater than that suffered by most people who are deported; or
3. The foreign spouse was abused by his/her U.S.-citizen or green card-holding spouse

In addition, if the three-month window of time is missed, the foreign spouse will lose his/her permanent residency status and may find him/herself in front of an Immigration Judge in removal proceedings. Form I-751 is the Petition to Remove Conditions of Residence, and is found on the Internet on the USCIS website, www.uscis.gov.

If permanent residency status was based upon being an investor/entrepreneur, the individual must file Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Residency.

A green card needs to be replaced (not simply renewed) if it is ever lost, stolen, or damaged. Also, if a permanent resident obtained a green card before the age of 14, he/she is required to replace his/her green card after turning 14.

The filing fee for the I-90 (Application to Replace Permanent Residence Card) varies according to the reason for filing the card, and the age of the applicant. In general, the fee is now $290, plus a biometrics (fingerprint) fee of $80. Also be aware that there are a number of service centers where the I-190 can be filed, depending upon the reason for filing. An application sent to the wrong service center will be rejected, and will probably be returned to the sender at a much later date.

About the author: Kathleen Lord-Black is a U.S. immigration lawyer.  Her offices are located in Vancouver, British Columbia. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada). www.immigration-etats-unis.com

Using the Freedom of Information Act

The Freedom of Information Act (also called “FOIA”) is a federal law that was enacted in 1966. It establishes the public’s right to obtain information from federal government files. Any person can file a FOIA request for a copy of a government agency’s file, as long as the files are not classified for secrecy. This means that even non-citizens can make a request for a copy of a government file through FOIA. In 1974, after the Watergate scandal, the Freedom of Information Act was amended to force greater agency compliance with requests for information from federal agencies. FOIA was again amended in 1996 to allow for greater electronic access to information, and to allow the government 20 days in which to respond to a FOIA request for information.

The Freedom of Information Act tries to strike a balance between the need for protection of sensitive government information and the interests of private individuals who have an inherent right to known what the government knows about them. The Privacy Act of 1974 also addresses this issue, as it too tries to balance government and private interests when responding to the requests of individuals who wish to look at their government files.

There are nine exemptions to the Freedom of Information Act. These exemptions forbid private individuals from obtaining certain information that is in the hands of federal government agencies. Most of the problems and discrepancies with FOIA center around these exemptions, as individuals feel these exemptions abridge the personal right to know what is in one’s government file.

FOIA applies only to federal government agencies, such as the Department of Homeland Security (DHS). Every non-citizen and naturalized citizen should make a FOIA request in order to obtain a copy of his or her DHS file. The information in an individual’s file will help in sponsoring relatives from abroad, for instance, and is necessary in defending oneself against deportation, should the need arise.

Federal government agencies are mandated by FOIA to comply with public requests for information. They must make the application procedure both public and accessible, so that the public may petition for the documents they request relatively easily. If the government agency does not make it reasonably easy to obtain information from its files, FOIA imposes penalties on the agency for hindering the process of petitioning for information. FOIA provides for recourse to a Federal court is there is any possibility of tampering or delaying in the sending of requested records.

The government agency, on the other hand, can rely on one of the nine exemptions to a FOIA request. These nine exemptions range from a withholding of information “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy” and “trade secrets” to “clearly unwarranted invasion of personal privacy.” The President of the U.S. has virtually unlimited power in declaring something off-limits and can classify any FOIA request as an unwarranted national safety concern.

In the immigration context, Immigration Attorney Leon Wildes used a FOIA request to help his clients John Lennon and Yoko Ono obtain permanent residence status He used of the new Freedom of Information Act in order to uncover a government plot against John Lennon. Mr. Wildes states:

“By the [deportation] hearing date, I had still received no opposing affidavits from the government. It was strange, because in my affidavit requesting the injunction, I alleged that there was a government conspiracy to remove Lennon for political reasons.

Later, I uncovered documents, under the Freedom of Information Act, that showed that Lennon was being selectively prosecuted for political purposes by the Nixon administration. A memo dated February 4, 1972, was forwarded to former Attorney General John Mitchell and Bill Timmons of the White House by Sen. Strom Thurmond, describing Lennon as a threat to the US government and the reelection campaign of Richard Nixon because of Lennon's affiliations with members of the Radical Left, which was then trying to stimulate voter registration of 18-year-olds. The presidential election in 1972 was the first one in which 18-year-olds could vote, making 18- to 20-year-olds a very important constituency. I also uncovered a memo in which Marks is advised by Washington to deny all applications, to revoke the Lennon’s' voluntary departure privilege, and to schedule the deportation hearing for March 16, 1972--strong evidence of prejudgment of the case for political purposes.”

After a four-year struggle, John Lennon eventually obtained his green card. Cruelly and ironically, however, he was later shot to death in the new country he embraced -- a country that both welcomed and repelled him.

About the author: Kathleen Lord-Black is a U.S. immigration lawyer.  Her offices are located in Vancouver, British Columbia. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada).   www.immigration-etats-unis.com

Your Criminal Record

If you have ever been taken into custody by the police, you have a criminal record. The record begins with the “mug shots” and fingerprints that were taken by the police. The record will also contain other information about you as a person as well as a summary of all your encounters with the justice system. The summary of your encounters with the police and the courts is called a “rap sheet” and contains a summary of your arrests, including the charges and sentences, fingerprint identification number Criminal Identification Information (CII) number, FBI number, Social Security number, and California driver’s license number.

Your record is sent to the state and federal agencies that keep criminal records. All California criminal records are kept by the State Department of Justice. National criminal records are kept by the FBI. You are entitled to have accurate records on file, but the California Department of Justice has been known to be slow to update criminal records to show dismissed charges and correct clerical errors. The FBI is apparently even worse in the area of correcting and updating criminal records.

Because of the likelihood that your criminal record may not be accurate, you should know (1) what your criminal record looks like, (2) where it is kept, and (3) who has authority to look at your criminal record.

You can get a copy of your criminal record in order to see what is on it and to check for errors. You can request your record from the FBI by sending them a letter asking for it, along with a copy of your fingerprints and a fee. California criminal records can be obtained from the California Department of Justice by filling out a form and returning it with a fee.

Your criminal records are not public record. They can only be released to a restricted group of individuals or agencies. For instance, if you are applying for a job, your potential employer cannot require you to get a copy of your criminal record as a condition of employment. However, if you are applying for a job as a policeman, in the courts, as a prosecutor, or in the probation and parole departments, these agencies are tied into the criminal justice system and can obtain access to your criminal record. Likewise, if you are applying for a job where you will been taking care of children or for certain security-related jobs, your potential employer may obtain your records from the California Department of Justice.

If you were convicted of crimes as a juvenile, the privacy of your juvenile court records is somewhat more protected than the records of adult offenders. However, if a juvenile court concludes that you have committed a felony, the judge in your case will report your felony conviction to the California Department of Justice, which will make it available for inspection, as it would with any adult record. The court will also notify the sheriff in the county where the crime occurred and also in the county where you now life, and the sheriff can notify other law enforcement agencies. Minors 14 years old or older who have committed serious felonies may have their name and crimes disclosed by law enforcement upon request to any “interested persons” (i.e., anyone in the public who has some legitimate interest in knowing your criminal record).

It is important to note that the California Department of Justice has an ongoing program of destroying records after from 2 to 10 years, depending on the offense. Therefore, when you request your record, you may receive a response that no record exists. This does not mean that you no longer have a criminal record. You should seek the advice of an experienced attorney to try to obtain the record, and have the record sealed, expunged or destroyed.


About the author: Kathleen Lord-Black is a U.S. immigration lawyer.  Her offices are located in Vancouver, British Columbia. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada). www.immigration-etats-unis.com

Origins of U.S. Immigration

The United States is a country of immigrants. Very few people in the United States can trace their ancestry to a Native American source. Over the last 200 years, the regulations concerning who can come to the United States, and who can stay, have become more and more complex. In general, the regulation of immigration has been solely a function of the federal government, and reflects the times in which the regulations were passed.

During the first 100 years (from 1776 to 1875), there was very little regulation of immigration in the United States. From 1776 until 1790, there was an “open door” policy in which virtually anyone could come to the United States and become a citizen. Congress even passed legislation encouraging immigration. The first immigration restrictions appeared in 1875, when Congress passed statutes excluding convicts and prostitutes from immigration to the U.S. A few years later, the first general federal immigration law was passed. It included a tax of 50 cents per immigrant, and excluded “idiots, lunatics, convicts, and persons likely to become public charges.”

American Immigration laws reflect the fears and changes in American society of the time. The Gold Rush of the 1850’s happened at a time of political turmoil and poverty in China, as the old empire collapsed in that country. Chinese flocked to American in search of opportunities. In California, the Chinese newcomers soon became an exploited work force; but their wages in California were still higher than what they could earn in China. Many Chinese became miners and worked on the railroads; and some developed the laundry business, which was very much in demand in the overpopulated San Francisco of the Gold Rush era.

Resentment against the Chinese grew for over thirty years. The Chinese faced discrimination from many groups, including American miners, who felt that the hard-working and low-paid Chinese were reducing their wages and taking their jobs. White miners and prospectors imposed taxes and laws to inhibit the Chinese from success in their business ventures. By 1882, the Chinese were hated enough to be banned from immigrating to the United States, and the Chinese Exclusion Act, initially to last only10 years, was extended indefinitely. It was not repealed until 1943. The Chinese Exclusion Act was the first immigration law passed in the U.S. that targeted a specific ethnic group.

Over the years, the list of excludable aliens grew. In 1885, laws were passed to exclude cheap foreign labor. In 1891, aliens with contagious diseases, criminals, polygamists, and paupers were excluded. In 1903, the fear of anarchists (the terrorists of the early 1900’s) led to their exclusion, along with “epileptics, insane persons, and professional beggars.”

Anti-Chinese sentiment in the U.S. was still strong in 1917 when the Asiatic Barred Zone Act was passed. This law was passed over President Wilson’s veto and barred all Asians except the Japanese from entering the United States. As times and fortunes changed, the Chinese became allies of the U.S. during World War II, and the Japanese who had immigrated to the United States and their U.S. citizen families were subjected to internment in relocation camps throughout the United States.

The large-scale immigration of persons from Southern and Eastern Europe led to the establishment of a national origin quota system. The fear was that Southern and Eastern Europeans would inundate the United States and take over the country. Only 3% of the number of foreign-born persons from certain countries could immigrate under the new laws. This quota did not include persons from the Western Hemisphere, and continued to completely bar the Chinese from immigrating to the U.S. The quota system still remains, but in 1965 it was modified to no longer base quotas on racial or national origins. Quotas were changed to be by hemisphere. Discrimination due to race and national origin is unconstitutional, and denied of the right to equal protection under the law.

About the author: Kathleen Lord-Black is a U.S. immigration lawyer.  Her offices are located in Vancouver, British Columbia. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada) . www.immigration-etats-unis.com

Myths About Immigrant Crime

Contrary to popular myth, increased immigration does not lead to increased crime, even if the immigration is illegal. Census and other sources show that, for every ethnic group, incarceration rates among young men are lowest for immigrants. This pattern has been observed consistently over the last three decennial censuses, which cover an era of mass immigration to the U.S. Even among high-school dropouts, immigrants have lower incarceration rates than does the native-born population. However, the children of these immigrants often do not fare as well as their recently-immigrated parents. The maladjustment of the children of immigrants (i.e., second-generation immigrants) is primarily an issue of assimilation.

Typically, when a family of immigrants enters the United States, the adults are still firmly entrenched in their native cultures. They struggle with the challenges of obtaining English-language proficiency, higher levels of education, and new job skills. The children and grandchildren of these immigrants are often left without the direct supervision of their hard-working parents, caught between the old world of their parents and the pressures of new social forces in their new country. The members of the immigrant family then begin to lose touch with each other, becoming increasingly isolated from each other and disconnected from the society around them. Studies have shown that this disintegration of the family unit often leads to gang activity, drug and alcohol addiction, and an increased likelihood of criminal activity. Adult immigrants also face an increased rate of incarceration, divorce, and substance abuse; and the risk increases the longer they reside in the United States.

The increasing instances of criminal activity in Koreans who have been in the U.S. for 16 years or more, for instance, is 5 times greater than for new Korean immigrants. I use Korea as an example, as we grapple to understand the mass killings committed by a Korean-born student at Virginia Tech University in April, 2007.

Seung-Hui Cho killed 32 people and wounded 25 others before committing suicide during a shooting rampage at Virginia Tech University. He was a South Korean who had moved to the U.S. at age eight, and was a lawful permanent resident. Cho’s father struggled as a self-employed bookstore owner in South Korea. He moved his wife and two children to the United States in 1992, in search of economic opportunity. Cho’s relatives in Korea were concerned about his behavior during his early childhood, apparently seeing signs of aberrant behavior Cho’s busy parents missed or overlooked. Although he appeared well-behaved, Cho would not talk or make eye contact with others. As a middle school and high school student in the U.S., Cho led an isolated existence and was tormented by fellow students because of his strangeness. Cho’s parents were unfamiliar with Western medicine and psychiatry, and Cho received only minimum psychiatric assessment. Following the ways of their native land, and believing Chos’ problems need to be solved by spiritual power, Cho’s parents took him to church, seeking deliverance for him from the demonic powers they believed possessed their son. However, before the church could start its work, Cho returned to Virginia Tech and focused his attention on preparations for the massacre.

Cho is an extreme example of failed assimilation. His story is a combination of tragic circumstances and numerous failures, including gaps in the mental health system and gun laws. In a last, albeit post-mortem, effort to be understood, Cho sent a package containing a CD to the New York headquarters of NBC News containing video clips, photographs, and a manifesto explaining the reasons for his actions.

Studies have shown that second-generation immigrant youth (i.e., those whose parents were born abroad) are significantly more prone to engage in delinquency, violence, and substance abuse than their first-generation immigrant parents are. Elaborate governmental procedures and safeguards are in place ostensibly to make sure that the right kinds of immigrants enter the country, but much less effort is expended to help the children of these immigrants successfully transition into American life.

About the author: Kathleen Lord-Black is a U.S. immigration lawyer.  Her offices are located in Vancouver, British Columbia. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada). Her web address is www.kathleenlord.com.

What is a "sanctuary city"?

The term “sanctuary city” refers to U.S. cities that instruct city employees not to notify the federal government of the presence of illegal aliens who may be living in their communities. Typically, a sanctuary city will direct its police not to look for violations of immigration law, although some sanctuary cities allow their employees to question a detainee’s immigration status for whose who are booked on a felony charge.

The term “sanctuary” is not entirely accurate in describing these types of cities. Sanctuary cities do not protect foreign-born people from deportation. They merely direct city employees (in particular, the police) to adopt a “don't ask, don’t tell” position regarding suspected illegal immigrants.

A city becomes a sanctuary city either formally or informally. To formally designate itself as a sanctuary city, a city may pass a written policy in the form of a resolution, ordinance, or administrative action. Formal sanctuary cities are the easiest to identify since the actions they take to become a sanctuary city are public record.

An informal sanctuary policy may also create a sanctuary city. Even if a policy does not exist on paper, if may nevertheless be carried out by government workers in the administrative, service or safety sectors. An informal sanctuary policy is more difficult to document, since no formal public record exists. The status of a city as a sanctuary city can be nevertheless detected from the statements and actions of the city’s public officials, especially the mayor of the sanctuary city.

In the summer of 2007, for instance, the Mayor of San Francisco reaffirmed the city’s commitment to be a sanctuary city. Federal agents had raided the Eagle Bag Corporation in Oakland, California earlier in the year, and arrested 13 foreign nationals who were undocumented aliens. In response, Mayor Newson of San Francisco condemned the raid and reaffirmed San Francisco as a city that would not aid federal agents in their round-ups of suspected illegal aliens. The rationale for the city’s policy is that immigration is, by the terms of the U.S. Constitution, a federal function, and not a state or local concern.

San Francisco has called itself a sanctuary city since 1989. Several other Bay Area cities have also either formally or informally declared themselves to be sanctuary cities, including Oakland, Santa Cruz, San Jose, and Watsonville. There are dozens of cities across the U.S. that have policies directing local police or officials to stay out of immigration matters.

Opinions regarding sanctuary cities are sharply divided. Some believe the police are shirking their duty to uphold the law when they do not report illegal aliens. For example, one Florida congresswoman introduced a bill last September that would withhold some federal funds to sanctuary cities. Also, Republican presidential contender Mitt Romney has been criticizing rival Rudolph Giuliani for the former mayor’s sanctuary policy in New York City, while others praise New York’s sanctuary status.

Police who patrol neighborhoods that have a large immigrant population are among those who praise sanctuary cities, believing a sanctuary policy allows members of immigrant communities the ability to talk to the police without being afraid. This leads to a safer community, according to police sources, because predators know when potential victims or witnesses are unlikely to go to the police, and find easy victims in an atmosphere of fear of the police.

In Austin, Texas, for example, immigrants saw the police as immigration enforcement officers and were afraid to talk to them. Like many immigrants, these immigrants typically carried their available cash on their persons because they did no have the documentation necessary to open a banking account. The result was a scourge of violence against immigrants and others in the community. Addressing the problem, the city of Austin offered identification cards for immigrants, enabling them to open bank accounts. Austin city officials also informally spread the word that the police were not interested in immigration status. Witnesses then began to speak up and report crimes to the police, and the incidents of violent crime in Austin dropped.

The sanctuary movement is actually a community-policing strategy, advocates say, as well as a way to help ensure children get vaccines and adults seek healthcare in an environment free of fear.


About the author: Kathleen Lord-Black is a U.S. immigration lawyer.  Her offices are located in Vancouver, British Columbia. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada). www.immigration-etats-unis.com

What is "secondary immigration"?

The Migration Policy Institute has recently published a study of "secondary immigration", which is also known as "two-step migration" or "re-migration." In secondary immigration, immigrants will become legal residents or citizens of one country (the "primary" country) and then use their status as a stepping-stone in order to migrate to another country (the "secondary" country).

For instance, there has been much research regarding the secondary immigration of Jamaicans who migrate to the U.K. and then to Canada; of Iranian refugees who first migrate to Sweden and then migrate to the U.S.; and of Chinese immigrants who immigrate to Japan and then to the U.S. In general, affluent countries such as the U.K., Germany, Canada, Australia, Sweden and Japan, are increasingly serving as intermediate, stepping-stone countries.

Increasingly, secondary immigrants are using more than one country as stepping-stones to their final destination. As such, the routes and patterns of migration are becoming increasing more complex.

The final destination of secondary immigrants is usually a wealthy, immigrant-friendly country. For the most part, the country of origin is a poorer country, and the intermediate country is often also poor. However, this general observation varies based on the type of migration, e.g., whether it is refugee or the migration of highly-trained business professionals.

Refugees fleeing persecution who re-migrate as secondary immigrants tend to come from Eastern Europe, Africa, and the Middle East. On the other hand, business professional secondary immigrants tend to come from South Asia, East Asia, and Western Europe. As a whole, secondary immigrants tend to be more educated and skilled in professional jobs than one-time migrants.

According to a 2000 report of the U.S. Citizenship and Immigration Service, 12.5 per cent of all immigrants who obtained lawful permanent residence that year had resided in third ("intermediate") countries immediately before coming to the U.S. This number has increased substantially since then.

Statistics show that India is the leading country of origin for those immigrants who then go to an intermediary country. Indian-born, highly-skilled workers, for instance, will often first move to the U.K. before migrating to the U.S. India is followed by China and the Philippines as a major source of secondary immigrants. These immigrants then move on to one of the major intermediary countries, such as Canada, the U.K., Germany, and Israel.

Secondary immigrants who originate from Eastern Europe tend to migrate to another country in the same region before migrating to their ultimate destination. For instance, secondary immigrants from Bosnia will first move to Germany before moving to the U.S. Some Somalis will initially migrate to Kenya, a neighboring country, before migrating to their ultimate destination. Latin Americans, also, tend to stay in Latin America before migrating again.

The pattern in Central and South Asia, however, is different. Secondary immigrants from East Asia tend to first move to Western Europe, North American, the Middle East, or to another country in East Asia before migrating to their final country of destination. In general, refugees tend to choose a country within their same region as their intermediate destination.

It is difficult to make general assumptions regarding secondary immigrants, since they are not at all homogenous. However, statistics can give us some guideposts. For instance, and not surprisingly, skill-based immigrants tend to be more highly mobile geographically. All-in-all, secondary immigrants tend to be more highly educated than primary immigrants probably because of the high global mobility of skill-based secondary business immigrants. In general, secondary immigrants are more likely to have completed graduate studies than have primary immigrants.

Statistics show that secondary immigrants tend to be somewhat older than primary immigrants, and are more likely to be married, with spouses immigrating with them. There are slightly more male secondary immigrants than female.

Secondary immigration is growing in complexity and frequency, largely due to global immigrant networks and the changing immigration policies of countries the secondary immigrants ultimately make their homes.

In the U.S., immigration law is at a crossroads, balancing the need for national security and the need for an orderly and humane assimilation of multiple cultures into a strong and diverse "melting pot".

About the author: Kathleen Lord-Black is a U.S. immigration lawyer.  Her offices are located in Vancouver, British Columbia. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada). Her web address is www.kathleenlord.com.

Paths to Citizenship

The usual way to a foreign-born citizen to become a citizen of the United States is through the process known as naturalization. The Immigration and Naturalization Act sets out the requirements for naturalization. These requirements include:

- being over the age of 18
- having been lawfully admitted as a permanent resident
- having been physically present in the United States for at least half that time
- having resided continuously in the United States from the date of application up to the citizenship ceremony
- having resided for at least three months in the district of the Immigration Office where the application is being filed
- being a person of good moral character
- having basic knowledge of the English language
- having basic knowledge of American civics and history
- taking an oath of allegiance to the United States

In addition to the usual procedure described above, there are also special procedures that permit certain special classes of people to obtain citizenship. These are streamlined citizenship procedures, some of which do not require permanent residency or physical presence in the United States. These streamlined procedures apply to the following classes of persons:

1. Spouses and ex-spouses of United States citizens who obtain lawful permanent residency because they were battered spouses. People in this category can apply for United States citizenship after three years of permanent resident status.
2. Spouses of U.S. citizens stationed abroad if the U.S. citizen-spouse is an employee of the U.S., government or certain other organizations. No residence in the U.S. and no physical presence are required.
3. Lawful permanent residents who have a total of three years’ honorable service at any time in the U.S. military. No residence in the U.S. and no physical presence are required, and the application may be filed with any Immigration office.
4. Persons serving on active duty in the U.S. military during war or in other periods of military hostilities. This special provision does not require permanent residency status or physical presence in the United States.

What about children who are born outside of the United States, but whose parents are U.S. citizens? There are some special, and somewhat complicated, rules that cover this situation.

Under the Immigration and Nationality Act, the child in this case may apply for a Certificate of Citizenship (Form N-600) if he or she meets the following requirements:
- is under 18 years of age
- is residing outside the U.S. with one parent
- the other parent has been physically present in the U.S. for at least five years
- the parent who resides in the U.S. has spent at least two of the five years in the U.S. after the age of 14.

What if the parent who is in the U.S. does not have at least five years’ physical presence? Or what if two of those five years are not after the parent turned 14? The child may still apply for a Certificate of Citizenship if he or she can meet the following requirements:
- is under 18
- is lawfully present in the U.S
- has a grandparent in the United States
- the grandparent is a United States citizen
- the grandparent is the parent of the U.S. citizen parent that lives in the United States
- the grandparent has been present in the United States for five years. Two of those five years must be after the grandparent’s 14th birthday.

Another unusual path to citizenship is the special provision for children who fall under the provisions of the Child Citizen Act of 2001. Under this law, a child can derive citizenship if he or she:
- is under 18
- is a lawful permanent resident of the U.S.
- has one parent who is a U.S. citizen by birth or naturalization
- resides in the U.S. in the legal and physical custody of the U.S. citizen parent

Finally, there is the very special class of people who have the right to claim United States citizenship, but may not know it. These people have relatives or ancestors who have been United States citizens or who had been eligible for citizenship, but the relatives or ancestors made no application for citizenship when it was possible for them to apply for citizenship. The process through which this class of people obtains citizenship is called “acquired citizenship” and also “derived citizenship”. An immigration attorney may be able to determine whether an individual falls within this special class of people, and can help them on their way to obtaining citizenship.

In this era of limited rights for noncitizens, it is recommended that noncitizens apply for citizenship. As discussed above, there is a traditional path to citizenship. There are also more unusual paths for people in special and specific situations. Therefore, it is best to see an immigration lawyer for an evaluation of the citizenship possibilities for you and your family.

About the author: Kathleen Lord-Black is a U.S. immigration lawyer.  Her offices are located in Vancouver, British Columbia. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada). www.immigration-etats-unis.com

Misrepresentation and Waivers

There are severe penalties for misrepresentation under the current immigration law. Misrepresentation can be a lie, half-truth, or other fabrication that is made to an immigration officer, immigration judge, or on an immigration application or form. Even a minor falsehood, under current immigration law, can lead to loss of reputation, loss of employment, destruction of personal relationships, and, in the most extreme cases, loss of freedom.

Misrepresentation can be in the form of direct statements to an immigration official, or in the presentation of fraudulent documents to an immigration official such as a border inspector or an immigration judge. Actions, as well as words, can be interpreted as a misrepresentation if done for the purpose of misleading the government into issuing a visa.

For instance, if a foreign visitor wishes to live in the United States, he/she should not apply for a visitor's visa. The visitor's visa is only a temporary visa and does not allow for the visa holder to live in the United States. To apply for a visitor's visa when one does not intend to depart the United States once the visa expires, is an action that can be interpreted as misleading the government into issuing a visa. Therefore, the government may deem that the action of applying for a visitor's visa in this case was a misrepresentation.

In the immigration context, the words "fraud" and "misrepresentation" basically mean the same thing. For the purposes of this article, the word "representation" will cover both offenses. Broken down into its basic elements, misrepresentation consists of:

1. A false statement or document
2. Regarding a material (important) fact
3. The speaker (for example, the visa applicant) did not believe the fact to be true
4. With the intent that it should be acted upon (that is, the false statement was for the purpose of obtaining an immigration benefit)
5. By an individual (such as, an immigration official) who believes the false statement or document to be true, and
6. Was misled by it (for example, the immigration officer believed the false statement or document), and
7. To that person's detriment (for example, the immigration officer actually issued the visa based upon the false statement or document),

Material Fact

In order for misrepresentation to exist, all of the above 7 elements must be present. For instance, element number 2 is missing if the document or statement is not "material". A material fact is one that influences the outcome of the visa application. For instance, a fact is not material if an individual would have still received the desired benefit even if he or she had told the truth about a particular fact. A fact is material, however, if the benefit would not have been granted if the applicant had told the truth about a particular fact.

A recent case involves a young couple (Harry and Manal) who met and fell in love in Berkeley. She was from Yemen, and he was a United States citizen. After Manal returned to Yemen, Harry traveled to Yemen to visit Manal and her family. There he proposed marriage, and returned to the United States and immediately applied for a fiancee visa for Manal. Several months passed and no approval notice was received. Manal became impatient and decided to travel to the United States with her father in order to visit Harry and make the wedding plans. Manal went to the American Embassy in order to obtain a visitors visa. At the interview, an immigration agent asked her if any petitions had been filed on her behalf. Manal knew that a fiancee visa had been filed on her behalf, but she told the officer that no petitions had been filed. Manal and her father were given visitors visas. After visiting Harry for a month, they returned to Yemen. In the mail, was the approval notice for the fiancee visa. Manal and her father returned to the United States, and Manal and Harry were married soon afterward.

Harry then applied for a green card for Manal. They were given an interview at the immigration office. The officer told Manal that she had made a misrepresentation to the visa officer at the American Embassy in Yemen because she did not tell him that a fiancee visa had been filed on her behalf. The officer told Manal that she would have to return to Yemen and wait for her green card, unless she could obtain a waiver.

Waivers

A waiver is basically forgiveness for a misrepresentation. If a noncitizen obtained a visa through the use of fraud or misrepresentation, the government gives the applicant a chance to show that he or she deserves to be forgiven for this offense. Basically, the waiver application must show (1) that the noncitizen has a specific family relationship, and (2) that his/her family would experience extreme hardship if the noncitizen were to be deported.

The waiver application itself is a relatively simple form. However, the difficulty in applying for a waiver is in putting together the documentation that must necessarily be attached to the waiver application. This is an area where an immigration attorney can provide advice on how to assemble a waiver application packet that will clearly prove that the applicant deserves a waiver.

Once the government receives the waiver and its supporting documentation, it must then begin to do a balancing test called "balancing the equities". Using an imaginary scale, the government will place all the factors favorable to the applicant on one side, and all the negative factors on the other side. Hopefully, the scale will tip to the side of the positive factors, giving the applicant a better chance of obtaining a waiver. The positive factors include the degree of hardship to the family and whether or not the applicant is now a person of good moral character. The negative factors include the seriousness of the misrepresentation, and whether or not the applicant takes responsibility for the misrepresentation and apologizes for it.

In prior days, the INS (now called USCIS) regularly granted waivers in cases of misrepresentation or fraud if the positive factors outweighed the negative factors in the balancing test. For instance, if it appeared that a family would be separated or the applicant might lose his/her job or educational opportunities, waivers were usually granted. However, today it is much less likely that a waiver will be granted to a noncitizen who has been found to have made a misrepresentation to the government. In this unforgiving atmosphere, it is best to obtain professional help to structure a strong and well-documented application for a waiver. An experienced immigration lawyer will carefully build a case for avoiding a charge of misrepresentation and for a waiver should misrepresentation be found.

About the author: Kathleen Lord-Black is a U.S. immigration lawyer.  Her offices are located in Vancouver, British Columbia. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada) . www.immigration-etats-unis.com

Challenges for Foreign Students

Foreign students are of great value to the US economy and academia. For example, in 2003, foreign students spent $13 billion in the United States, making education the fifth largest US export. Foreign students and, professors, and researchers bring special expertise and insight, enriching the American academic community, and American culture as a whole.

However, in the last three years, several high barriers have been placed to stop the flow of top-level foreign students and scientists from other countries. In the name of national security, those who are not a threat to national security or the US economy and culture itself, have been singled out as scapegoats. Those in the current US government who wish to restrict the flow of ideas and technology cause great harm to American colleges and universities, as well as the US economy. These “restrictionists” have put in place unreasonable barriers to the global “marketplace of ideas”.

One such barrier is the array of clearance checks known as Visas MANTIS and Visas CONDOR, and the Technology Alert List (TAL). These clearance checks have caused increased and unnecessary consular security and delays. The number of visa denials for students, academics, and researchers has also increased as a result of these additional clearance checks. For example, approximately 20 percent of those accepted into masters and PhD physics programs have been delayed or denied entry. Also, several US universities have reported trouble filling resident advisor and teaching assistant positions, that were previously filled by noncitizen graduate students. Growing dissatisfaction with American entry constraints has given incentives to European, Australian, and Canadian universities to actively and aggressively court foreign students to studying their countries instead of the United States. As a result, the United States is becoming increasingly isolated and cut-off from the best and the brightest minds in the world.

On unnecessarily burdensome clearance check is the Technology Alert List (TAL). TAL was created in 2000. Its purpose was to provide a guideline for consular officials to use in reviewing visa applications. The stated purpose of this guideline is to prevent the export of “goods, technology, or sensitive information” by students and researches. This list encompasses a large number of fields, including chemical and biotechnology, engineering, materials technology, information security, and robotics. TAL, along with another clearance check known as Export Administration Regulations (EAR) add yet another level of security clearance to an already over-burdened system. This causes delay and denials, and does nothing to increase security.

The most discouraged students are those from Arab countries and other countries that the US has targeted for special registration (known as National Security entry/Exit Registration Systems – NSEERS). Student applications from these countries have declined the most during the past years. These students have found that their applications for student visas (F-1) and exchange visitor visas (J-1) have been unreasonably denied.

Foreign students generally pursue their degrees as either F-1 or J-1 visa holders. These are short-term nonimmigrant visas. They are only granted if the consular or border officials are convinced that the student or exchange visitor has strong ties to his/her home country. They want to be assured that the student or visitor will return to his/her home country once the visa has expired. As such, the applicant can be refused admission if there is any sign that they he/she may intend to remain in the US. Therefore, it is extremely important for students and visitors to be honest to the consular and border officials and to make it clear that they intend to leave the US once their studies have concluded.

Students and visitors, nevertheless, have the option of extending or changing their student or visitor status. They can also adjust to become permanent residents in certain cases. However, they must not intend to extend or change their status at the time they first enter the United States. When interviewed at the border, they must state honestly that they have this intention when entering the United States. To state that they have the intention of changing status or applying for permanent residence would result in a denial of their student visa.

In general, a student visa is for student status only. Foreign students and exchange visitor are generally not permitted to work. However, under certain conditions they may work, foreign students may work part-time on campus. In addition, they can work off-campus if it is part of their education. This program is called Curricular Practical Training. After graduation, they can work off-campus full-time for up to a year. This is the Optional Practical Training Program (OPT). OPT is a good introduction to the work force, and can often lead to a work visa (such as an H-1B work visa).

H-1B visas are three-year work visas. They are renewable for up to six years. Students who graduate with four-year degrees can obtain H-1B visas once they are offered employment by an American company. With luck, the company will sponsor the foreign worker for permanent residency. This is a long and involved process, and is the subject of another essay.

In conclusion, as foreign students and exchange visitors face increased scrutiny in their applications, the need for expert immigration assistance continues to grow. Attorneys need to understand the applicable laws and regulations, and also the hopes and needs of their clients. Careful visa preparation can save many days of waiting and possible denial. Therefore, foreign nationals must be sure to seek expert legal advise in preparing to study and do research in the United States.

About the author: Kathleen Lord-Black is a U.S. immigration lawyer.  Her offices are located in Vancouver, British Columbia. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada) . www.immigration-etats-unis.com

Temporary Work Visas

This article will discuss temporary employment in the U.S., briefly listing the privileges and limitations of some of the more common types of temporary work visas.

Temporary Employment

There are several temporary work visas for employment. Each visa is for a limited time (usually one to six years), and allows a foreign worker to work for only one employer at a time. Each visa is also for a specific job and in a specific geographical area.

The first requirement for a temporary work visa is a job offer from a US employer. For a temporary work visa, the US employer need not prove to the government that there are no willing and qualified US workers who can do the job. This is not the case with permanent immigration through employment, where the employer must go through an elaborate process to show there are no US workers available for the job. Permanent immigration will be discussed in another article.

Some of the more common temporary work visas are:

H-1B visas. These visas allow foreign workers to work legally in the US for a U.S. employer. H-1B’s can usually be issued quickly. They allow the visa-holder to travel in and out of the U.S. or remain in the U.S. continuously until the H-1B visa status expires. Visas are also available for accompanying relatives.

As an H-1B holder, a foreign worker is restricted to working only for the employer who acted as his/her H-1B sponsor. If the worker wishes to change jobs, he or she must get another H-1B visa. Employers who sponsor H-1B workers must file an attestation (or promise) with the U.S. Department of Labor before they can sponsor a H-1B worker. H-1B status can be held for no more than six years. After the 6th year, the worker must return to his/her home country, unless he/she is eligible to change to another nonimmigrant category or apply for permanent residence (as described below). Accompanying relatives may stay in the U.S. with the H-1B worker, but they cannot work, unless they qualify for a work visa in their own right.

H-2B visas. These visas are for temporary, nonagricultural workers. Like the H-1B visa, the H-2B visa allows the foreign worker to work legally in the U.S. for the U.S. employer who sponsors him/her. The H-2B worker may travel in and out of the U.S. or remain in the U.S. continuously until the H-2B visas status expires. Visas are available for accompanying relatives.

Some of the limitations of H-2B visas are also similar to the limitations on H-1B visas. The worker is restricted to working only for the U.S. employer who acted as the H-2B visas sponsor. If the worker wishes to change jobs, he/she must get a new H-2B visa. H-2B visas can initially be approved for up to only one year. Additional one-year extensions are allowed. After a maximum of three years, the worker must return home and wait at least 12 months before applying for another H-2B visa, unless the worker qualifies for another visa status. Accompanying relatives may stay in the US. with the H-2B worker, but they may not work.

L-1 visas. These are called Intracompany Transfer visas for Manager, Executives, and Workers with Specialized Knowledge. This visa requires at least two related companies, one inside the U.S. and one outside the U.S. that is a branch, subsidiary, affiliate or joint venture partner of the U.S. Company. The foreign company must already employ the worker outside of the U.S. in order for the worker to be eligible to be transferred to the U.S. company as a L-visa-holder. Like H visas, the L visa can be issued relatively quickly. The worker may travel in and out of the U.S. or remain in the U.S. continuously until the L-1 status expires. Visas are available for accompanying relatives. One great advantage to the L-1 visa is that an executive or manager with an L-1 visa can obtain a green card through employment through a more streamlined process than most workers.

Some of the limitations of the L-1 visa are similar to the limitations on the H-1B visa. The L-1 worker is restricted to working only for the U.S. employer who acted as the L-1 visa sponsor, and the U.S. company must be a branch, subsidiary, affiliate or joint venture partner of the company that currently employs the worker outside the U.S. L-1 visas can initially be approved for only up to three years. Extensions of two years at a time may be allowed until the worker has been in the U.S. for a total of seven years if the worker is a Manager or Executive. Persons with specialized knowledge can get extensions totaling only five years. Accompanying relatives may stay in the U.S. with the worker, and some may obtain authorization to work.

J-1 visas. These are called Exchange Visitors’ visas. An exchange visitor may come to the U.S. to participate in a specific exchange visitor program approved by the U.S. government. There are a large number of such special programs sponsored by school, businesses, and a variety of organizations and institutions. The exchange program is meant to foster international cooperation through exchange of information. The programs are intended for students, scholars, trainees in business and industry, teachers, research assistants, and international visitors on cultural missions. J-! visas can be issued quickly. There are no quota restrictions for J-1 visas. They allow the visa-holder to work legally in the U.S. if work is part of the approved program of if the worker receives permission to work from the official program sponsor. The J-1 visa-holder may travel in and out of the U.S. or remain in the U.S. until the completion of the exchange visitor program. Visas are available for accompanying relati8ves.

As with the other temporary visas described above, the J-1 visa has restrictions. The visa-holder’s activities are restricted to studying, working, or otherwise participating in the specific exchange visitor programs for which the visa has been approved. Also, exchange visitors participating in certain types of programs may be required to return to their home countries for at least two years before they are permitted to get a green card or change to another nonimmigrant status or to have an “L” or “H” visa petition approved on their behalf.

O visas. These are one-year visas for aliens of “exceptional ability” in the sciences, arts, education, business or athletics. To be considered a person of extraordinary ability, the worker must have sustained national or international acclaim; or, if the worker is in the motion picture or television industry, he/she must have a demonstrated record of extraordinary achievement. O visas can be issued quickly. They allow the worker to travel in and out of the U.s. as long as the visa stamp and status are valid. The worker may remain in the U.S. only as long as the O status remains valid. Visas are available for accompanying relatives.

Limitations on the O visa include the restriction to working only for the employer who acted as the visa sponsor. If the worker changes jobs, he/she must get a new visa. Accompanying relatives may stay in the U.s. with the O visa-holder, but they may not work.


Important caveat regarding Visitors Visas:

It is important to remember that a visitor’s visa (B-1/B-2 visa) is only to be used for visits to the US for pleasure or business, but not for employment. It is best to consult an attorney before applying for a visa, to be sure you are applying for the correct visa, and that you are applying in the correct manner.


About the author: Kathleen Lord-Black is a U.S. immigration lawyer.  Her offices are located in Vancouver, British Columbia. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada). www.immigration-etats-unis.com

How to Sponsor a Fiance(e)

If you are a U.S. citizen who is engaged to a foreign national who lives overseas, you must file a petition for alien fiancé (Form I-129F), and meet certain requirements. Below is a document checklist for this type of case:

CHECKLIST FOR FIANCE(E) VISA

1. Copy of face page of Sponsor’s US passport and certified copy of US birth certificate (copy both front and back of birth certificate)
2. Evidence that you and your fiancé(e) have met personally within the past two years, e.g.,
- photos of the two of you together
- copies of passport pages that show the identification page and admission stamps
- airline ticket stubs and receipts (that indicate month, day, and year of travel)
- ATM and credit card transactions, flight itinerary on airline/travel agency letterhead
- affidavits from persons who have personal knowledge that you have met*
3. Statements from each of you regarding your plans to marry within 90 days of your fiancé(e)’s entry into the United States
4. Statement regarding how and when you first met
5. Evidence of termination of prior marriages, if any
6. one passport photo of your fiancé(e), and one of you
7. a completed Biographical Information Form (G-325A) for both you and your fiancé(e)- foreign spouse must also sign in his/her native language
8. filing fee – check or money order payable to “US Department of Homeland Security”
9. certified copy of all conviction records, if sponsoring spouse has ever been convicted of a crime in the U.S. or abroad



Among the requirements for a successful fiancé petition is proof that you and your fiancé have met at least once during the two years preceding the filing of the fiancé petition. For example, if you filed a petition for your alien fiancé on June 11, 2003, then you and your fiancé are required to have met during the period that began on June 11, 2001 and ended on June 11, 2003.

There are two exceptions to this rule, but they are difficult to prove. Pursuant to the Code of Federal Regulations, a petitioner may be exempted from the requirement for a pre-engagement meeting if it is established that compliance with the requirement for the meeting would:

(1) Result in extreme hardship to the petitioner, or
(2) Compliance with the requirement for a meeting would violate strict and long-established customs of the beneficiary's foreign culture or social practice, as where marriages are traditionally arranged by the parents of the contracting parties and the prospective bride and groom are prohibited from meeting subsequent to the arrangement and prior to the wedding day. In addition to establishing that the required meeting would be a violation of custom or practice, the petitioner must also establish that any and all other aspects of the traditional arrangements have been or will be met in accordance with the custom or practice.

The regulations do not define what may constitute extreme hardship to the petitioner. Therefore, each claim of extreme hardship must be judged on a case-by-case basis, taking into account all of the petitioner's circumstances. Generally, the immigration service will look at whether the petitioner can demonstrate the existence of circumstances that are (1) not within the power of the petitioner to control or change, and (2) likely to last for a considerable duration, or the duration cannot be determined with any degree of certainty.

In one recent case, a petitioner submitted a letter from a priest at his mosque stating that, according to the Islamic faith, the parties to be engaged are not allowed to meet without a chaperone. He also submitted a letter from another religious expert that stated that the petitioner was a member of his (the expert’s) mosque, and that engaged couples did not meet until the day they are married. The letters, however, did not state that a meeting between the petitioner and the beneficiary is prohibited. Therefore, the petition did not meet the requirements for the second (“long-established customs”) waiver.

The immigration service has experience with applications similar to the above example, and relies on information provided by the Imam Islamic Foundation of North America. According to the Islamic Foundation of North America, Islamic Law and practices provide that adult Muslim men and women are not allowed to date or meet their future spouses before marriage. However, for finalizing the decision to marry, it is permissible for both to see each other in the presence of their families. It appears, therefore, that it is not specifically prohibited for the future spouses to meet before their marriage. A skillful immigration attorney would have pointed out this flaw before the application was filed. Luckily, however, the immigration service allowed another petition to be filed which contained sufficient evidence for an exemption to the prior-meeting requirement.

In another recent case, a petitioner never met her fiancé because he lived in Lebanon. She provided evidence that Lebanon was an unsafe place, and that she was therefore unable to travel there to meet her fiancé. However, her argument failed because she could have met her fiancé in a neutral country, but chose not to do so. Regulations do not require that the petitioner travel to the beneficiary’s home country; but the petitioner must demonstrate that he/she and the beneficiary explored options for a meeting beyond the petitioner traveling to the beneficiary’s home country. These options may include the beneficiary traveling to meet the petitioner in the United States or a bordering country. The petitioner in the Lebanese case also argued that traveling to meet her finance is prohibitively time-consuming and expensive, and is therefore an “extreme hardship”. However, the position of the immigration service is that the financial and time commitments required for travel to a foreign country are not “extreme hardship” such as to support a waiver of the prior-meeting requirement.

Petitions for fiancés whom the petitioners have never met have been approved, but the law is complicated and the services of a competent immigration specialist should be sought as early as possible in these cases.

About the author: Kathleen Lord-Black is a U.S. immigration lawyer.  Her offices are located in Vancouver, British Columbia. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (604) 605-7012 and (604) 352-2006. www.immigration-etats-unis.com

How to Deal with Immigration Delays

By Kathleen Lord-Black, U.S. Immigration Lawyer

The public and attorneys alike have found that the Immigration Service often takes longer than it should to decide cases. For many years, these problems were solved by having an immigration attorney contact Immigration to alert them to the problem. If that did not work, then a letter to a Congressman or Senator would often bring results. The ultimate tool for dealing with Immigration delays is to file a lawsuit against the agency. This is called a “writ of mandamus”. This tool is coming into more frequent use as Immigration delays persist and grow worse.

A writ of mandamus is a form of lawsuit that is designed to compel a government agency to perform its duty. A writ of mandamus cannot be used to force Immigration to grant a benefit, it only forces the agency to make a decision. Therefore, a mandamus action can possibly result in the denial of a petition or application. The assistance of an experienced immigration attorney is needed in order to evaluate whether or not a mandamus action will be appropriate in a given case, and to craft the mandamus complaint itself.

The attorney will first research whether the processing of a particular case has gone beyond the time limits stated by the Immigration Service itself. If so, inquires should be made with Immigration. If no results come within a reasonable time, the next step is to contact a Congressman or Senator, or proceed directly to a mandamus lawsuit.

The suit will be filed in federal court. Usually, simply filing the lawsuit brings the case to the attention of the Immigration Service, and they will then take action on the case. If not, the federal court to make a decision on your lawsuit.

Recently, a federal court in San Francisco ordered the Immigration Service to make a decision on an application for permanent residency that had been pending since June of 1998. The applicant was a Palestinian refugee who had been brought to the U.S. by the U.S. government under a special program for “Persian Gulf Evacuees” in 1990, at the time of the first Gulf war. The man was then instructed to file for political asylum, which he did in 1990. After waiting more than six years for his asylum application to be processed, he was granted political asylum in 1997. A year later, the man filed an application for a green card (i.e., to adjust his status to permanent residency status). Then followed years of waiting.

The man made many inquiries that led nowhere. He was told each time that his application was “pending a security clearance from the FBI.” The man finally filed sued the Director of the FBI, the Attorney General of the United States, and several Immigration Service officials, in San Francisco federal court. The mandamus complaint asked the court to compel the government to immediately process the necessary background checks and make a decision on the man’s application for permanent residency. Eight months later, in October of 2006, the federal court ordered the government to do its duty “forthwith”.

Federal courts require the Immigration Service to explain why it has delayed approval of a case within sixty days of the complaint being filed, and often these cases are decided within 30-60 days. In the example above, the Immigration Service responded immediately to the court order and granted the man’s application for a green card.

If your case has been delayed for one year or more, you should consider filing a Writ of Mandamus complaint with the federal court. As a general rule, you do not have to appear personally in court when you file a writ of mandamus.

If you are applying for citizenship, you have an even stronger option than filing a writ of mandamus. You can file a “petition for declaratory judgment” (PDJ). Unlike a mandamus action, which calls for a decision (good or bad), a petition for declaratory judgment is a lawsuit that calls for flat-out approval of your citizenship application. File a mandamus action after a one or two-year delay in most cases; file for a PDJ after 120 days in citizenship cases.


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About the author: Kathleen Lord-Black is a U.S. immigration lawyer.  Her offices are located in Vancouver, British Columbia. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada). www.immigration-etats-unis.com

Aggravated Felonies and Due Process

By Kathleen Lord-Black, U.S. Immigration Lawyer

“Due process” is a phrase found in the Fifth Amendment to the United States Constitution, and applies to actions of the federal government, including the treatment of aliens. In United States law, “due process” was adopted from the English Law concept of due process (also known as “due process of law”). It is the principle that requires a government to respect all of a person's legal rights when the government deprives the person of life, liberty, or property. Due process has also been frequently interpreted as a guarantee of fundamental fairness, justice, and liberty.

In the context of American immigration, immigration matters frequently involve issues of life and liberty. However, our immigration system lacks some of the most basic due process protections. Due process means that individuals are presumed innocent until proven guilty; that there is a right to a hearing before a judge; that there is right to counsel and to examine adverse evidence; that there is a right to appeal; and that there is right to seek release on bond. It means judges should be allowed to use discretion in considering cases on a case-by-case basis, and not be bound to mandatory results in every case.

Many of the basic elements of due process and fundamental fairness were abridged by our immigration laws in 1996. Laws ostensibly intended to preserve our way of life have resulted in the mandatory detention of many long-term permanent residents. Under these new laws, lawful permanent residents are being deported for offenses that were not deportable when committed. When Congress created an expanded definition of "aggravated felony," this made felons out of immigrants who had committed relatively minor nonviolent offenses, such as writing bad checks or shoplifting.

The history of the term “aggravated felony” as used in U.S. immigration law is a study of the decline of due process in our immigration laws.

The ADDA. The term "aggravated felony" first appeared in immigration law in 1988 under the piece of legislation known as the Anti-Drug Abuse Act of 1988 (ADAA). At that time, it simply created a separate ground of deportation for serious crimes such as murder, drug trafficking or illegal trafficking of firearms or destructive devices. ADAA did not impose any limitation on relief for aliens convicted of aggravated felonies.

IMMACT 90 . The passage of the Immigration Act of 1990 (IMMACT 90) had a profound effect on aliens convicted of aggravated felonies. IMMACT 90 limited the available discretionary relief from deportation/removal (e.g., the 212(c) waiver, suspension of deportation, voluntary departure, asylum, and withholding of deportation) for aliens convicted of aggravated felonies. Moreover, under IMMACT 90, the number of years of the sentence were factored into the definition of an aggravated felony, thereby lengthening the list of aggravated felonies.

INTCA. Four years later, the definition of “aggravated felony” was again revised with the advent of Immigration and Nationality Technical Correction Act of 1994 (INTCA). INTCA expanded aggravated felonies to include common, less serious crimes such as fraud, burglary, theft, and other nonviolent crimes.

IIRAIRA and AEDPA. In 1996, dramatic and sweeping changes to immigration law were ushered onto the scene by two acts of legislation known as the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996, "IIRAIRA" and the Anti-Terrorism and Effective Death Penalty Act of 1996, "AEDPA."

Under these two new laws, people convicted of minor offenses, which are now defined as aggravated felonies under immigration law, face mandatory detention; removal from the U.S. without a hearing before an immigration judge; or the inability to offer any mitigating factors in their defense.

When an alien is deemed an aggravated felon, he/she is barred from the U.S. for twenty years and is ineligible for virtually any form of relief. Therefore, it is very important, when a defense attorney is determining an appropriate criminal plea or defending a criminal alien in removal proceedings, to be on guard for the term “aggravated felony”.

The price of this abridgment to due process is paid for by the lawful permanent residents, their U.S. citizen children, and their spouses and parents whose families are split apart, whose homes are broken, and whose lives are forever altered.

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About the author: Kathleen Lord-Black is a U.S. immigration lawyer.  Her offices are located in Vancouver, British Columbia. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada). www.immigration-etats-unis.com