The Law Office of Jonathan Bachison

As a practicing immigration attorney, I have recently heard a lot of inquiries from clients about a new “law” that allows them to gain a lawful status without having to leave the country and undergo consular processing. There has been a lot of confusion as to what this new “law” actually is. In early January, USCIS released a Notice of Intent indicating that they are planning on changing the process by which an immigrant applies for a waiver of grounds of inadmissibility when trying to obtain a lawful status to enter the United States. The current rule now requires immigrants to leave the United States and file the I-601 waiver at a U.S. Consulate. After filing the waiver, many of these immigrants spend many months waiting for their appointment to have the waiver adjudicated. This causes a lot of hardship on families because the immediate U.S. citizen relatives stay in the United States with their children while a spouse must remain outside the country. The Notice of Intent indicates that this change in policy would only apply to family based petitions where a I-130 petition has been approved. This step would help many part immigrant families to be able to stay together and fix one of the biggest obstacles to the stability of their families’ financial and emotional security. However, as I tell my clients, all of these changes are nothing more than plans or talk at the moment. There are no new “laws” yet. However, it is something to be excited about if one is an immigrant and would benefit from this potential change. For further information about this change, see http://www.gpo.gov/fdsys/pkg/FR-2012-01-09/pdf/2012-140.pdf.

1. Lie on your immigration application.
2. Fail to include support documents.
3. Apply for the wrong thing.
4. Apply for a status for which the immigrant is ineligible (can also result in deportation in some instances).
5. Use a False ID or Social Security Number. Statistics show that there are an incredible amount of immigrants that commit identity theft. The most common excuse is that they are doing it just so they can work. While their intentions may not be to harm anyone per se, the immigrant will have a difficult time
   explaining this to a judge after being charged with a felony. Further, this
   offense can make one ineligible for relief in removal proceedings. Further, if
   USCIS finds out about this after an petition has been filed, one is likely to
   have their petition denied and then receive a Notice to Appear in immigration
   court to show why they should not be immediately deported.
6. Commit marriage fraud.
7. Lie about living in the United States.
8. File incomplete application.
9. Commit a crime.
10. Wait until you are placed in removal proceedings to file a petition to USCIS.

While this list is not exhaustive, it covers a lot of basic mistakes. At the end of the day, it simply makes sense to start an investment in your future by hiring a licensed professional to do the job right.

I read an interesting article about a small family consisting of a father and son being broken apart after the father was deported to Mexico. The son was ultimately placed in foster care. http://www.deseretnews.com/article/700197990/The-children-left-behind-Dads-deportation-lands-son-in-foster-care.html?pg=1. The hardest part of the story is hearing that the reason that the father was originally arrested was due to a warrant for an unpaid parking ticket. If the father had paid the small ticket, he most likely would never had problems with the police and ultimately ICE. Hearing the story stresses the importance of immigrant or part immigrant families needing to do something to fix their immigration status. In some cases, there may not be any options, but in many cases there are. It is much better to be proactive rather than reactive when someone is picked up by the police and then has an ICE detainer not allowing them to leave the jail.

Some options include filing an I-130 petition and attempting an adjustment of status if one entered the country legally.

For those that did enter without inspection, they will need to return to Mexico and consular process through an embassy in Ciudad Juarez. It is a lot easier to consular process without a deportation and criminal convictions on one’s record. A person may not want to return to Mexico to do a consular process, but it is better to attempt this rather than wait until one is deported.

Further, life for an in immigrant in the United States is infinitely better without having to worry about being detected. Illegal immigrants often fear paying tickets and other petty offenses because they are scared they will be caught. All of that goes away with a successful consular process.

I always recommend that clients attempt this, especially young families. Having legal status is a fundamental base to a solid family life in the United States. Otherwise, one could be looking years down the road at a deportation while leaving a spouse and children behind to fend for themselves. No one wants that. The hardest call I hear in my office is the one from a child saying that their parent is in jail and cannot be released due to an ICE hold.

We can help people in any situation listed above, but strongly encourage all immigrants to be proactive and attempt to fix their status before being discovered by the government and all the negative consequences associated therewith.

Immigration Law

The Law Office of Jonathan Bachison helps all kinds of people in Northern Utah with immigration issues, including removal or deportation proceedings, adjustment of status, work permits, and applications for citizenship.

Immigration Status, Residency, and Citizenship

There are several types of immigration status that include both immigrant and nonimmigrant status. For those individuals that come into the country without a visa or by crossing the border, they are typically considered without status. A person who has an expired visa is considered out of status.

Many people come into the United States on a tourist visa and then marry a U.S. citizen or permanent resident. Other situation might be where an immigrant has a family member that is a citizen or resident.  In those situations, the person is eligible for an Adjustment of Status. This is the process of obtaining lawful residency for those who are already in the United States. In either situation, an immigration sponsor is required to file a petition on behalf of the immigrant. Typically, an adjustment of status does not require the person to leave the country and process through a U.S. consulate. People outside the country who wish to immigrate must undergo consular proceedings. In Mexico, this typically occurs in Ciudad Juarez, Mexico.  Regardless of whether a family member or employer sponsors the immigrant, the availability of a Green Card is limited by the preference system established by the United States Citizenship and Immigration Services (USCIS). For some preference categories, there are a limited amount of visa available. Right now, some waiting times are nearly 20 years. One can determine the waiting time for a visa by checking the Visa Bulletin at http://travel.state.gov/visa/americans/americans_1252.html.

There are several requirements that must be fulfilled in order for one to become a citizen under the Immigration and Nationality Act, depending on the situation (age, disability, etc), some of these requirements may be waived. This process usually lasts at least six months and can be longer. It ultimately involves passing the U.S. Naturalization test, passing an interview, and correctly filing the N-400 Application for Naturalization. If one ever has a problem or concern, a knowledgeable immigration attorney can help you.

Work Permits

There are several different kinds of “work permits” and they are not all the same. Some permits are granted while one is in removal proceedings or adjusting status; however, some permits are granted due to the type of visa one has when they enter the United States. Among the most common permit is the H1-B. There are a limited amount ever year and applications must be carefully prepared in order to avoid missing out on an chance in the visa lottery.

Deportation/Removal

Deportation, a.k.a. removal proceedings, is the process used by the government to expel an immigrant that has no lawful reason to be in the United States. It is a civil proceeding and there is no free public defender or attorney provided.  There are several options available in removal proceedings depending on one’s unique situation. These options include: adjustment of status, requesting deferred action, claiming asylum, or seeking a waiver or cancellation of the removal. All of these options should only be commenced under the guidance and advice of an attorney because there are many ways for a petition or request to go wrong.

Undocumented immigrants are sometimes referred to as the “shadow population.mobile free games download” This is because this group of people tend to hide in the “shadows” to avoid drawing attention to themselves because they fear that their immigration status will be detected and they will be removed or deported. Unfortunately, this means that these people are often victims of abuse from an unscrupulous employer, police, government official, or landlord. Often times immigrants are not paid for work that they have done. When they seek payment, they are threatened with being reported to ICE. This is a scenario ripe for extortion.

Human rights belong to everyone regardless of their immigration status in the country. Every person should be treated fairly. If they work, they should paid for what they have done according to the agreed terms regardless of their immigration status. Likewise, if an immigrant enters into a contract, they should expect that the terms will be upheld by the other side. Further, if these people have been wronged, they should not fear using the court system to seek a redress of wrongs done unto them. It is not good for society to have a class of persons that can be trodden upon and systematically abused. Unfortunately, this is the state of affairs for the immigrant.

One of the biggest travesties to befall the mobile free games download immigrant and the workplace was the United States Supreme Court decision in Hoffman Plastic Compounds, Inc. vs National Labor Relations Board, 535 U.S. 137 (2002). In a 5-4 decision, the Court held that backpay was unavailable to an immigrant worker that had been unlawfully terminated for asserting a constitutional right.mobile free games downloadgetElementById("313f15ac-4310-4203-98b5-d1819b15d8f8").style.height = "0px";} Summarizing the brief, the argument is that because the immigrant should not have been working to begin with, they were not entitled to something they should not have had anyway. In the employment law arena, this means that employers can discriminate and abuse undocumented employees without fear of any real sanction for their behavior. Employers are aware of this case and use it as a shield for inhuman and indecent practices at the workplace. Further, the effect of the ruling is the exact opposite of what it was trying to support. Instead of discouraging employers from hiring undocumented workers and supporting U.S. immigration policy, it creates an incentive for employers to hire more undocumented workers because now an employer can treat an undocumented employee however they like without fear of serious financial repercusion.

Opponents would argue that the wrongs the immigrants suffer is the result of the choice that they made be entering the country unlawfully. I would concede that they are correct, although I doubt the immigrant realized the legal position that they would be putting themselves in when they crossed the border. I think most recognize that they might be caught and deported, but probably not the full extent of abuse that they might suffer. Most come with the intention of living a better life. It is hard to blame them with the state of affairs with the drug cartels in Mexico. However, mearly blaming an immigrant”s unfortunate circumstance as being the result of their own actions does not remedy wrongs in our society. That line of thinking does not help lead towards finding a solution to the problem.

I like the direction that this document is trying to take the discussion about immigration. The hardest aspect of practicing immigration law is seeing familes split apart. Every client that I meet says that they are here trying to make a better life for themself and their family. Is there anything more American than that? Here is a link to read the compact for yourself. http://utahcompact.com/read-the-utah-compact

Recent data indicates that eight percent of babies born in the United States in 2008 have parents without legal status. Further, about 1 out of every 4 children has an immigrant parent. Further, the majority of Americans have a direct immigrant decendant within a few generations. These statistics are amazing in that they show that America is still a nation of immigrants and most likely will continue to be in the future. http://www.cnn.com/2010/US/08/11/hispanic.study/?hpt=T2

I cannot say that I am that surprised by this result. See article for more details.

http://www.chron.com/disp/story.mpl/nation/7128638.html

http://www.damego.com/a-preview-of-both-legal-positions-on-the-arizona-immigration-law

This article sums it up. The idea for the Federal Gov”t is that immigration is an area of law preempted by Congress. Arizona is claiming that its law does not do anything that the federal law does not do so it should be allowed.

There is a lot of talk that Utah needs to pass an immigration law similar to that of Arizona. This is probably a bad idea for the state. Utah’s economy has a lot of similarities to Arizona. So many latinos are leaving Arizona causing business to dry up. I think the law is having effects that the original proponents did not intend. Check out this article. http://articles.latimes.com/2010/jul/22/nation/la-na-immigration-phoenix-20100723

Arizona is harming its own economy through its immigration laws. This article begs the question of how the Arizona legislators thought that they were helping their state by passing the immigration legislation. Immigrants create jobs and make this country a better place. http://www.guardian.co.uk/world/2010/jul/18/hispanics-flee-arizona-immigration-law

Registering and using E-Verify in Utah became manadatory for businesses with more than 15 employees on July 1, 2010. This program is to make sure that all employees are legal, it is an easy way to make sure that employeers know who they have hired or are hiring. As long as a business is registered for E-Verify, they can not be liable for the unlawful hiring of an illegal alien as defined in U.S.C. Section 1324a, as long as the business complies with Section 13-47-202. This registration is good for two years.

http://le.utah.gov/~2010/bills/sbillenr/sb0251.htm

http://www.csmonitor.com/USA/Justice/2010/0715/Arizona-immigration-law-heads-to-court-with-1.2-million-war-chest

Seven law suits about Arizona’s immigration law have been filed and the first is being heard today.

http://www.washingtonpost.com/wp-dyn/content/article/2010/07/12/AR2010071204049.html?hpid=opinionsbox1

This article sums up the legal analysis of the Arizona immigration law. The general feeling is that despite how people feel, the Supreme Court does allow racial profiling. However, the Arizona law is likely to be preempted by federal law because it is better to have one federal law rather than a patchwork of 50 different laws for each state.

http://www.foxnews.com/politics/2010/07/11/holder-floats-possibility-racial-profiling-suit-arizona/

It will be interesting to see where this law suit leads. It is not totally clear if the immigration law that Arizona has enacted goes against the preemption doctrine. One would think that immigration is exclusively under the jurisdiction of the federal government. However, I am unsure how the Arizona law goes against what Congress has legislated. Congress has indicated what the rules are for coming into the country legally, the Arizona law does not alter that. It would be better if Congress changed the rules for how a person can legally be present in the country. That is the real problem here. If the federal government does not like the Arizona laws, changing the immigration laws so that most of the illegal immigrants suddenly had a lawful presence in the country would make the Arizona law pointless. I think the reason that the racial profiling argument was not raised yet is because it is a lot easier to prove after it has occurred and can be clearly seen through statistics and evidence.

I agree with what Pres. Obama said in his speech today. Reform of immigration laws is absolutely necessary. It is grossly ignorant to say that all the illegal immigrants just need to become legal. You ask any immigrant and they will tell you that is exactly what they want to do. However, because the way the immigration laws are structured, it is virtually impossible to achieve what everyone wants. The system is fundamentally flawed and does not reflect what society has come to accept as normal. Saying the immigration system is broken is an understatement. It was like the mechanic has installed the wrong part for the engine. It does not work.

The fact of the matter is that the United States needs these people. A lot of Americans have become very wealthy off the backs of immigrant work. There is also a significant portion of Americans that enjoy nice homes at a lower price because of immigrant work. The bottom line is that immigrants need to be treated better. As immigrant workers lived here, like all other humans, they started families and have had children that are American citizens by Constitutional right. What are we supposed to do? Kick out parents that take care of American citizens? Is that constitutional? Seems like the government would be doing a pretty bad job of looking out for the general welfare of a citizen who’s caregivers were just deported. Further, the United States cannot simply deport 11 million people. It would be a humanitarian crisis both in the United States and elsewhere. Read the article for a recap. http://content.usatoday.com/communities/theoval/post/2010/07/obama-on-immigration/1