Border Security by Stopping People from Leaving the U.S.??

4. October 2011 by admin.

Recently I overheard a group of my immigration attorney colleagues discussing reports that U.S. Customs and Border Protection (CBP) officers are stopping people trying to leave the United States through the Nogales Port of Entry.  Similar reports have come from other crossing points. 

Considering all the recent hue and cry about “too many immigrants in the U.S.,” it seems strange that CBP would actually interfere with people who wanted to leave.  Many of the people stopped were actually going to visa interviews at the U.S. Consulate in

Ciudad Juarez, Mexico, in order to get proper, legal documents and return “the right way.” 
The question was raised, “How does complicating the lives of people attempting to comply with the law by leaving the US enhance our security?”

As strange as it sounds, this ‘new’ policy is probably an off-shoot of one of the better ideas in the “border enforcement” approach to national security.  I don’t mean harassing undocumented workers and others attempting to leave, but rather, trying to prevent the flow of money and guns heading “south.”

 

A couple of recent studies published by the Immigration Policy Center lay this out clearly.**  As far as the border is concerned, the real  threat to national security lies not in the poor migrants themselves, but in the growing wealth and power of organized criminal enterprises created to facilitate illicit entry into the U.S. (or more precisely, created to reap huge profits by facilitating illicit entry into the U.S.).  Stemming the return of profits and the flow of guns to the ‘cartels’ could make a real difference in diminishing the power - and danger - of these organizations. 

 

In comparison, rounding up and deporting a few hundred or a few million undocumented workers is actually counter-productive.  It just increases the demand for, and the profits from, the cartels’ services.  Not to mention shooting our own economy in the foot by depriving it of needed workers, demand for goods and services, tax revenues, etc.

 

Aside from comprehensive immigration reform (which could eliminate the demand for illicit ‘underground’ avenues of entry), cutting off the profits and reducing the firepower of the human- and drug-smuggling cartels would be one of the more effective ways to keep the

U.S. safe from an actual ”threat.”

 

That is why “complicating the lives of persons attempting to comply with the law” [by leaving the U.S.] is actually part of a rational immigration policy. 

 

Unfortunately, CBP’s effectiveness at this “outbound interdiction” role will be significantly diminished, if they don’t learn to do it without terrorizing or alienating the general population of migrants and other travelers (documented or otherwise).  Imagine the impact on true “border security,” if all travelers could look at CBP as “the good guys, working to keep us all safe, from the truly bad guys.”

 

** The referenced articles are at: http://www.immigrationpolicy.org/perspectives/how-fix-broken-border-hit-cartels-where-it-hurts-part-i andhttp://www.immigrationpolicy.org/perspectives/guns-drugs-and-money-tackling-real-threats-border-security 

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Derivative Citizenship: How to prove your U.S. Citizenship through your ancestors

12. July 2011 by admin.

Anthony Price, age 55, was born in Mexico and has lived in the United States almost all his life.  Although Anthony was born outside the U.S., he always believed he was a U.S. citizen because he had lived in the U.S. since his very early childhood.  His parents, spouse and all the other members of his family always assumed that he was a U.S. citizen.  In fact, Anthony registered for the draft when he was of age as all his friends did at the same time.  Later, he took part and voted in local and national elections like any U.S. citizen has the privilege to do.  Anthony and all his friends and family members knew that Anthony was a U.S. citizen.  Anthony never imagined that his U.S. citizenship would one day be challenged by an agency of the U.S government and that he actually would have to provide evidence that he really was a U.S. citizen.

 Anthony’s wife was planning a trip to Europe for their wedding anniversary.  Although he made regular trips to and from Mexico in the past, without difficulty, he had never needed a passport for these trips.  That was before the law changed.  Now, any U.S. citizen leaving the country needed to have a U.S. passport.  So he submitted an application to the U.S. Passport Agency.  The Agency’s response was startling to Anthony—it claimed that he did not provide proper evidence to show that he was a U.S. citizen.  The agency provided Anthony with a list of documents that were acceptable evidence of U.S. citizenship.  Anthony did not have any of the listed documents in his possession.  Anthony wondered how he could prove his citizenship without a U.S. birth certificate.  Unsure about how to approach the situation, he contacted an experienced immigration attorney for legal advice.

To his shock, Anthony discovered that much more was at stake here than just getting a passport or a visit to Europe.  Under U.S. immigration law, a person who falsely claimed to be a U.S. citizen – even if he honestly believed himself to be a U.S. citizen – has committed a very serious offense.  Not only could he be deported – but (with one very narrow exception) there is no waiver or other relief for such a transgression.  The penalty is to be permanently barred from entering the United States!

Fortunately, Anthony’s attorney was experienced and knowledgeable.  The attorney explained to him that, under specific circumstances, U.S. citizenship could be obtained through one’s parents or ancestors’ citizenship and residential status in the United States.  To find out whether this applied to Anthony, the attorneys helped Anthony gather relevant information and documentary evidence (including pictures, genealogy documents, ancestors’ correspondence, school diplomas, etc.) relating to his family.  They had to gather information starting with Anthony’s grandparents in order to obtain the necessary evidence that proved that Anthony was actually a U.S citizen at the time of his birth.

Anthony’s parents were also both born in Mexico and did not have U.S. birth certificates to prove that they were U.S. citizen at birth.  They were both deceased at the time Anthony was applying for his U.S. passport and neither of them had ever applied for a U.S. passport or any other proof of U.S. citizenship (i.e. a certificate of citizenship for example) while they were alive because they never needed any.

Although he was born in Mexico, Anthony’s father lived in the United States for most of his life and for some time before Anthony’s birth.  The attorney learned through family tree records that the father’s parents (Anthony’s paternal grandparents) were both born in the U.S. and resided here before his father was born, which by law made his father a U.S. citizen at birth.

Anthony’s mother was also born in Mexico to a U.S.-born mother (Anthony’s maternal grandmother), but her father was born in England.  However, because of the laws in effect at the time of Anthony’s mother’s birth, her birth from one U.S. citizen parent was enough for her to be a U.S. citizen at the time she was born.

     Thus, both of Anthony’s parents were U.S. citizens at the time of his birth. More importantly, because they had resided in the U.S. for a sufficient amount of time before he was born, they legally transmited their U.S. citizenship to Anthony – even though he was born outside the U.S.

     Anthony’s immigration attorney sent a very detailed and well-documented letter to the U.S. Passport Agency showing that Anthony was, in fact, a U.S. citizen based on his ancestry.  The letter included a carefully written explanation, showing how each item of documentary evidence supported Anthony’s claim to U.S. citizenship, and citing the old laws and statutes that were in effect when each of his parents and grandparents were born.  As a result, the Agency granted Anthony’s request just in time for him to travel abroad to enjoy his well-deserved vacation.

*   *   *

Does Anthony’s story sound like fun?  It is not!  But if many current U.S. legislators have their way, we could all end up being required to document our ancestry, in order to claim our U.S. citizenship! A small but very vocal minority of anti-immigrant activists seek to overturn our long-established and Constitutionally-based law of citizenship through birth on U.S. soil.  Citing emotionally weighty but logically light arguments about “anchor babies,” they would have us abandon a system which is simple, efficient and effective in favor of one that would not only be cumbersome and expensive to administer, but would also lead to a growing population of “stateless” persons, unable to claim a home in any country.

Fortunately, efforts to rescind or drastically undercut the 14^th Amendment to the United States Constitution have abated, for now.  But it is doubtful that the proponents have actually gone away.  More likely they are merely licking their wounds while planning a new assault.  Who knows, they may eventually succeed.

If that happens, your U.S. birth certificate may become only “circumstantial” evidence towards your claim to be a true American – despite the fact you were “born in the USA!”

The attorneys at Gunderson, Denton & Peterson, P.C. are qualified to assist you or to answer any immigration related questions you may have.< –>

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What is Arizona’s employer-sanction law? Is it valid?

9. July 2011 by admin.

How the U.S. Supreme Court’s decision regarding the employer-sanction law affects business owners.In 2007, the Arizona State Legislature passed the Legal Arizona Workers Act (“LAWA”), also known as the Arizona employer-sanctions law.  On May 26, 2011, the Supreme Court of the United States upheld the Arizona employer-sanctions law in Chamber of Commerce of the U.S. vs. Whiting, with 5 Justices voting to uphold the law and 3 Justices dissenting.  The Supreme Court’s approval of the law means that the law is here to stay.  How does this affect Arizona business owners? 

The employer-sanctions law has been in effect in

Arizona since January 1, 2008.  The Supreme Court’s decision simply allows the law to continue to be enforced; it does not change how it is enforced.  According to the law, an employer shall not knowingly hire an undocumented worker.  If an Arizona court finds that a business knowingly hired an undocumented worker, the first offense can result in a suspension of the business license for up to ten days.  If a business is found to violate the law a second time, the employer’s business license will be permanently revoked.  Factors that are considered when the court is making its decision are:

·         The number of undocumented workers employed

·         Any prior misconduct by the employer

·         The degree of harm resulting from the violation

·         The efforts made by the employer to comply with the applicable requirements

·         The duration of the violation

·         The role of the directors or officers in the violation

If the offense results in a business license being suspended, it will apply only to the licenses at the location of the infraction. 

A business does not violate the employer-sanctions law based solely on the fact that it hired an undocumented worker.  In order for sanctions to be imposed, the state must show that the business knowingly hired the undocumented worker.  The Supreme Court found that “an employer acting in good faith need have no fear of the sanctions.”  One way for a business to show that it did not knowingly hire an undocumented worker is to use the federal E-Verify system, which is actually now mandatory under LAWA (despite the fact that it was intended as a “voluntary” program, and  that participating employers must waive significant legal rights in order to participate).  If a business uses the E-Verify system, the state will have an even greater challenge of showing that the employer knew that it was hiring undocumented workers. 

According to the Supreme Court’s majority’s opinion, “for companies that are playing by the rules and using E-Verify in good faith, there’s virtually no risk that they will be captured by the

Arizona employer-sanctions law.”  [Note, however, that the Justice writing that opinion did not offer to provide free legal counsel, in the event some unlucky employer does get bitten by LAWA, despite their subjective “good faith”! ]

 

With the E-Verify system, it might take as little as a couple of minutes to check the status of each newly-hired employee.   The time spent using the system may prevent future problems with the employer-sanction law.  But keep in mind that most employers are only authorized to use E-Verify to confirm employment eligibility of new hires.  The E-Verify rules specifically prohibit use of the system to check the immigration status of existing employees or others.  Unfortunately, the system is far from fool-proof.  It basically checks the information input by the employer against the Social Security Administration’s database.  An example of where problems may arise is when a new employee has just arrived in the U.S. on a valid, employment-authorized visa.  It may be many days before SSA’s records accurately reflect the status of newly-arrived workers – and if the U.S. employer runs an E-Verify check right away (as required under E-Verify), it is unlikely that employment authorization will be “Confirmed.”

Under the employer-sanctions law, an action against an employer is brought by the county attorney.  Each county attorney can have a different standard for bringing a claim under the law.  For example, a county attorney in

Maricopa County may bring a claim against a business while a county attorney in

Pima County may find that same claim to be frivolous and do nothing about it.  The strength with which the law is enforced will depend on the counties in which a business does its business.

In

Arizona, immigration has become a topic of great interest to the state legislators and new immigration legislation is constantly being considered.  At times it may be difficult for a business owner to understand and implement the requirements of the employer-sanction law or other laws imposed by the state or federal government.  An immigration attorney can advise you regarding your business’ employment and immigration issues to ensure that your business complies with the necessary laws.

 

How the U.S. Supreme Court’s decision regarding the employer-sanction law affects business owners.

In 2007, the Arizona State Legislature passed the Legal Arizona Workers Act (“LAWA”), also known as the Arizona employer-sanctions law.  On May 26, 2011, the Supreme Court of the United States upheld the Arizona employer-sanctions law in Chamber of Commerce of the U.S. vs. Whiting, with 5 Justices voting to uphold the law and 3 Justices dissenting.  The Supreme Court’s approval of the law means that the law is here to stay.  How does this affect Arizona business owners? 

The employer-sanctions law has been in effect in Arizona since January 1, 2008.  The Supreme Court’s decision simply allows the law to continue to be enforced; it does not change how it is enforced.  According to the law, an employer shall not knowingly hire an undocumented worker.  If an Arizona court finds that a business knowingly hired an undocumented worker, the first offense can result in a suspension of the business license for up to ten days.  If a business is found to violate the law a second time, the employer’s business license will be permanently revoked.  Factors that are considered when the court is making its decision are:

·         - The number of undocumented workers employed

·         - Any prior misconduct by the employer

·         - The degree of harm resulting from the violation

·         - The efforts made by the employer to comply with the applicable requirements

·         - The duration of the violation

·         - The role of the directors or officers in the violation

If the offense results in a business license being suspended, it will apply only to the licenses at the location of the infraction. 

A business does not violate the employer-sanctions law based solely on the fact that it hired an undocumented worker.  In order for sanctions to be imposed, the state must show that the business knowingly hired the undocumented worker.  The Supreme Court found that “an employer acting in good faith need have no fear of the sanctions.”  One way for a business to show that it did not knowingly hire an undocumented worker is to use the federal E-Verify system, which is actually now mandatory under LAWA (despite the fact that it was intended as a “voluntary” program, and  that participating employers must waive significant legal rights in order to participate).  If a business uses the E-Verify system, the state will have an even greater challenge of showing that the employer knew that it was hiring undocumented workers. 

According to the Supreme Court’s majority’s opinion, “for companies that are playing by the rules and using E-Verify in good faith, there’s virtually no risk that they will be captured by the Arizona employer-sanctions law.”  [Note, however, that the Justice writing that opinion did not offer to provide free legal counsel, in the event some unlucky employer does get bitten by LAWA, despite their subjective “good faith”! ]

 With the E-Verify system, it might take as little as a couple of minutes to check the status of each newly-hired employee.   The time spent using the system may prevent future problems with the employer-sanction law.  But keep in mind that most employers are only authorized to use E-Verify to confirm employment eligibility of new hires.  The E-Verify rules specifically prohibit use of the system to check the immigration status of existing employees or others. 

Unfortunately, the system is far from fool-proof.  It basically checks the information input by the employer against the Social Security Administration’s database.  An example of where problems may arise is when a new employee has just arrived in the U.S. on a valid, employment-authorized visa.  It may be many days before SSA’s records accurately reflect the status of newly-arrived workers – and if the U.S. employer runs an E-Verify check right away (as required under E-Verify), it is unlikely that employment authorization will be “Confirmed.”

Under the employer-sanctions law, an action against an employer is brought by the county attorney.  Each county attorney can have a different standard for bringing a claim under the law.  For example, a county attorney in Maricopa County may bring a claim against a business while a county attorney in Pima County may find that same claim to be frivolous and do nothing about it.  The strength with which the law is enforced will depend on the counties in which a business does its business.

In Arizona, immigration has become a topic of great interest to the state legislators and new immigration legislation is constantly being considered.  At times it may be difficult for a business owner to understand and implement the requirements of the employer-sanction law or other laws imposed by the state or federal government.  An immigration attorney can advise you regarding your business’ employment and immigration issues to ensure that your business complies with the necessary laws.

 

This blog article was written by Mark Egan, an immigration attorney at Gunderson, Denton & Peterson, P.C.   If you have any questions, or would like to speak to an immigration attorney, feel free to contact us.

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Arizona Restaurant Chain Executives Indicted on Federal Immigration & Tax Charges

21. April 2011 by admin.

According to a recent news release, the owners of an Arizona-based Mexican restaurant chain have been arrested and will be arraigned in federal court in Tucson for Immigration compliance issues and tax fraud.  According to court documents, Mark Evenson and Christopher Evenson hired undocumented workers to staff their restaurant and paid them under the table, failing to pay at least $400,000 in taxes.  If convicted, the two owners  could face over 80 years in prison and over $5 million in fines.  Their accountant is being arraigned as well and could face up to 40 years in prison with possible fines up to $2 million.

For more information, see the article in the Arizona Republic.

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New USCIS Attestation Requirements for Companies Employing Foreign Workers in the U.S.

5. April 2011 by admin.

      U.S. employer’s who hire foreign professionals, managers and executives have a new headache to worry about!

The U.S. Citizenship and Immigration Service (USCIS) recently changed the I 129 “Petition for Nonimmigrant Worker” form, which is used to request authorization to temporarily employ foreign nationals in the United States.  The change also affects applications for “aliens of extraordinary ability” having national or international acclaim in the sciences, arts, education, business or athletics – or in motions pictures or television.

Due to concerns about potential deemed export* of sensitive or restricted technologies and materials, employers of foreign nationals in H-1B, L-1 or O-1 visa status now must sign a statement, attesting:

1)   that they have reviewed the U.S. Export Administration Regulations (EAR) and the U.S. International Traffic in Arms Regulations (ITAR);

2)   that they have determined whether or not a license is required to release any controlled technology or technical data to the foreign employee who will be visiting the U.S.; and

3)   that if such a license is required, the foreign employee will not be given access to any controlled technology or technical data, until the appropriate export license has been obtained.

The wording of the new attestation requirement may create significant burdens for many employers. Even if certain that their companies do not handle any materials that require export licensure, the form still requires a declaration, under penalty of perjury, that the employer has reviewed the EAR and ITAR, and determined that no license is required.

You can find these regulations on-line at:
EAR – http://www.access.gpo.gov/bis/ear/ear_data.html#ccl
ITAR – http://www.pmddtc.state.gov/regulations_laws/itar.html

The export classification system and licensing determinations are complicated.  If you have any difficulty determining whether or not any of these regulations apply to your situation, consultation with a U.S. export control law expert is recommended.

*Certain materials, technologies and technical data cannot be exported from the United States without an export license.  A “deemed export” occurs if someone from another country is given access to such items while in the U.S.  Even though no tangible goods leave U.S. territory, the mere exposure to them by a foreign national is deemed to be an “export” of the technology, and requires licensure.

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L-1 Intracompany Transferee Visa Question

5. March 2011 by admin.

We received the following inquiry about L-1 work visas:

The owner of our company wants to get an L-1 visa for her nephew to come work with us (as we are in need of her bilingual-Italian abilities).  How difficult is this to obtain, and how long would it take?

Response:

The L-1 visa is for “intra-company transferees” and is subdivided into two varieties:  L-1A for managerial and executive transferees, and L-1B for employees with “specialized knowledge” of the company.

Over the past few years, L-1A and L-1B visas have gotten more difficult to obtain, largely due to abuses of the L-1 visa category by large, international ’job shop’ companies.  In response, the US Congress has passed tougher laws and the U.S. Citizenship and Immigration Service (USCIS) has developed more stringent and restrictive guidelines for approval of L-1 cases. 

Just having “some connection” between the U.S. and foreign companies is no longer the “E-ticket” that it once seemed to be.  Nevertheless, if the owner’s nephew and his job position both meet the legal requirements, we should be able to help you.
 
Threshold Requirements:

- -  Affiliated Companies

The L-1 visa category is for “intra-company transferees” who have been employed, full-time, for at least 1 year by a foreign company that is properly affiliated to the US company.  “Properly affiliated” usually means that one is owned by the other (parent-subsidiary), or both are owned by a third company, or by a group of owners (where each individual owner holds about the same share of ownership in both companies).

- -  L-1A Multinational Manager or Executive
 
If the person is in a truly executive or managerial role (supervising other supervisors or managers), the L-1A category may be most appropriate. This category has several advantages, particularly as it may offer a faster pathway to future permanent resident (”green card” or “LPR”) status. 

- -  L-1B Specialized Knowledge employee

If the foreign national transferee has been working in a position that requires specialized knowledge of the company, its processes, procedures and products, and such knowledge has been acquired through working with the company over the course of a year or more, he may be a good candidate for the L-1B category.
 
Processing times
 
The amount of time to prepare such a request depends on a number of variables.  Usually the biggest factor is whether you are able to provide ample evidence of the qualifications of the applicant (the owner’s nephew), a solid description of the job duties for both the US and the foreign positions, and documentation showing a qualifying relationship between the US and the foreign companies.
 
Once all the documentation is assembled and filed, the time for USCIS to process the petition should be about 1 month.  That’s their official estimate, anyway.  Although ‘required’ by law to process an L-1 visa petition within 30 days, USCIS makes no actual guarantees.  Sometimes they meet it, sometimes they don’t. 

If time is of the essence, however, USCIS does offer to expedite processing and provides a limited guarantee to adjudicate within 15 days . . . if we pay them an additional $1,000 ‘premium processing service’ fee.  (Can you say, ‘mordita’?)

[Note, too, that if the ‘transferee’ is coming from Canada, the process is greatly streamlined.  Special rules and procedures apply, and we have had Canadian L-1 applications processed – and the worker admitted to the U.S. – in hours, rather than weeks or months!]

Summary

L-1 visas were once a fairly simple, straight-forward way for foreign employees and managers of multi-national companies to transfer to a U.S. office.  The laws and rules have changed (and are continuing to change!), and determining eligibility gets more complicated all the time.

But despite the increased obstacles and shifting requirements, the L-1A and L-1B are still valid, viable and very useful visa categories.  They are successfully utilized by thousands of companies and personnel each year.

While not everyone will qualify, the L-1 is still a ‘perfect fit’ for many.  We would be happy to assist you in determining whether L-1 is the best match for you.

Posted in Employment Based Immigration | 1 Comment »

Family Based Immigration

22. February 2011 by admin.

How can my friend become a U.S. citizen?

A reader recently submitted the following question through our website:

“My friend was here on a professional ‘work permit’ — but it expired so she and her family had to go back home.  How can she become a U.S. citizen and get a green card?”

Someone once said, there’s no such thing as a “simple” immigration question!  And this one is no exception.  In hopes the answer will be helpful to a broader audience, I’m posting it here on our GDP blog.

There are several avenues by which people are able to immigrate to the United States.  The two broadest categories are: (1) family-based immigration and (2) employment-based immigration.

I will cover family-based immigration first.  I will discuss employment-based immigration in a later post.

Family-Based Immigration

Determining the possible immigration options depends on all the circumstances.  Generally, before someone can become a US citizen, they must first become a Permanent Resident (i.e., get a “green card”).  Citizenship is a whole different subject – so I will save that, too, for a later post.  First things first!

To become a Permanent Resident of the US, there must be a US citizen sponsor who is the person’s spouse, parent, adult child or sibling.  A Permanent Resident (a “green card” holder) may also be the sponsor, but only for the Permanent Resident’s spouse or unmarried child.

If the person seeking Permanent Residency (a green card) is the spouse, parent or minor child of a U.S. citizen, they are categorized as “Immediate Relatives.”  That can be a big plus.  For Immediate Relatives, the process can be much faster:  4 to 6 months, in some cases (of course much depends on their specific circumstances).

If the person seeking to immigrate is not an “Immediate Relative” the process takes much longer.  For these people there are a limited number of immigrant visas available each year.  This limited number is further ‘rationed’ to a given number for each country, and for each different visa category.

Every year, many more people apply than the number of available visas.  So there are backlogs.  The length of the backlog depends on the specific relationship to the person’s sponsor, and also depends on the country they were born in.  Depending on those factors, the backlog may be anywhere from 8 months to almost 20 years!

These are just the threshold issues.  There are many other considerations that may affect the options available. As you can see, the process can become quite complicated!

Years of experience have taught me that few immigration situations are as simple as they seem.  Small variations in each person’s circumstances may make their case more difficult - or (sometimes) more simple and easy to move forward.

If you would like to pursue the process of helping your friend return to the U.S. and obtain Permanent Resident status, a more formal Consultation would probably be worthwhile.  I have three main goals for each Consultation:

1 - to provide a verbal ‘roadmap’ so you will understands the options, obstacles and possibilities associated with your particular immigration situation

2 - to give sufficient information for you to make an informed decision about the best path to reach your immigration goals

3 - to help you understand what needs to be done next, in order to follow that path and reach the goal successfully.  That normally includes an estimate of what it would cost to hire our firm to help with that immigration process.

To schedule a Consultation, please contact my paralegal, Debbi Mitchell, or our receptionist, Janet Daoud, at 480-655-7440 (or you can reach Debbi by e-mail at debbi@gundersondenton.com).

Thanks for your interest!  I look forward to helping ensure your experience with the immigration process is a smooth and successful one.

Sincerely,

Mark Egan

Posted in Family Based | 1 Comment »