Seguritan US Immigration Articles

Deportation Rescinded Due to Lack of Notice

Deportation or removal is a harsh punishment because it expels an alien from the U.S. even if his/her family and business are left behind. But aliens under removal proceedings have rights and one of them is the right to receive a hearing notice.

Removal may be ordered in absentia. This means that if the alien who has been notified of the hearing does not attend such hearing, an immigration judge may order removal in his/her absence.

What kind of notice is required for a removal in absentia to be valid? Does the alien have to be notified personally? If he/she moves and the notice was sent to an old address, is there a valid notification? What if the address given was incorrect? If the alien has an attorney, does the attorney have to be notified?

In a recent case before the Court of Appeals for the Ninth Circuit located in San Francisco, California, the removal order against an alien was rescinded because the alien did not receive the notice of hearing and his attorney was not notified of the time and place of the hearing.

The alien in this case had been detained after he attempted to enter the U.S. with a valid foreign passport but with an altered visa. While he was detained, he was personally served with a notice to appear (NTA) and the immigration court personally served him with a hearing notice.

The hearing notice specifically stated that he had the right to hire an attorney and that his failure to appear at the scheduled hearing could lead to his removal in absentia.

After the NTA and the notice of hearing were received by him and before the scheduled hearing, he retained an attorney to represent him. The attorney immediately notified the immigration court of his representation and filed a notice of appearance. The attorney succeeded in his motion to change the hearing venue from San Pedro to Los Angeles where the alien’s grandparents lived.

Prior to his release from detention upon posting a bond, the alien completed three forms that required him to give his address where he could be reached. He provided the court the street address of his grandparents in all the three forms but in two of the forms, he did not indicate an apartment number and the third form indicated an incorrect apartment number.

The immigration court later sent a hearing notice to the address that did not include an apartment number. The alien did not receive the hearing notice and in fact the notice was returned to the court 8 days after the scheduled hearing date. The hearing notice was never sent to his attorney.

Because the alien failed to appear at the hearing, the immigration judge ordered his removal in absentia. His attorney received a copy of the removal order.

The attorney immediately moved to reopen the removal order on the ground that he never received notice of the hearing and therefore he did not have the opportunity to present an asylum case for his client.

The immigration judge denied the motion on the ground that notice had been sent to the alien but to the address without the apartment number. The Board of Immigration Appeals reaffirmed the denial of the motion so the attorney petitioned the Court of Appeals for review.

The Court of Appeals held that the in absentia removal order must be rescinded because the alien’s attorney was not served with the hearing notice.

March for Immigration Reforms

Over 200,000 people marched in Washington DC last March 21 to urge Congress and the President to overhaul America’s broken immigration system.

The marchers who traveled from around the country were joined by members of the labor and business sectors, faith and community leaders and civil rights advocates.

Although the rally was overshadowed by the health care debate held in the halls of Congress, it was attended by several lawmakers including Senator Robert Menendez and Representatives Luis Gutierrez, Michael Honda, Nydia Velasquez, Yvette Clark, Joe Crowley, Xavier Becerra, Lincoln Diaz-Balart, Raul Grijalva and Judy Chu.

Their message was loud and clear. America needs an immigration policy now that would legalize the 11 million undocumented immigrants, reduce if not eliminate the huge backlogs in family and employment immigration, provide much needed temporary workers to help grow our economy, and restore the fundamental principles of fairness and due process while protecting our national security.

Representative Luis Gutierrez, the principal sponsor of the comprehensive immigration bill now pending in the House told the crowd, “We have waited too long. We have been patient long enough. It is time to let the immigrants come out of the shadows.”

Notable was the presence of leaders from organizations that had not been fully supportive of immigration reform such as some African American groups, labor organizations and gay and lesbian groups.

Rev. Jesse Jackson and NAACP President Benjamin Jealous and National Urban League President Marc Morial expressed the support of their groups. Labor leaders such as SEIU International President Andy Stern and religious leaders such as Cardinal Roger Mahoney of Los Angeles and Rev. Sam Rodriguez, president of the National Hispanic Christian Leadership Conference also spoke to underscore the urgent need for reforms.

The Filipino American community was represented in great numbers. Among the leaders were Ernie Gange of the Fil-Am Reform Immigration for America Task Force and Ben de Guzman, Jelly Carandang and Jerry Clarito of NAFFAA.

President Obama who had promised immigration reforms during his election campaign addressed the gathering via a videotaped message, “I have always pledged to be your partner as we work to fix our immigration system, and that’s a commitment that I reaffirm today,” he said.

The President acknowledged that passing immigration reform this year would not be easy but he said that if we “work together across ethnic, state and party lines” it could happen.

The organizers of the March 21 rally said that more gatherings are being planned to continue raising public awareness on the issue. Indeed sustained action is needed to push Congress to act. We must play an active role because we need immigration reform now.

Accrual of Unlawful Presence

Unlawful presence in the U.S. may have horrible consequences to an alien who is applying for a green card. If he/she is required to go abroad to process his/her visa, he/she may not be able to return for years.

What constitutes unlawful presence and when does it accrue? Are all aliens who are out of status considered to be unlawfully present?

A comprehensive guidance memo released by the United States Citizenship and Immigration Services (USCIS) provides some answers to the above questions.

Unlawful presence generally starts accruing when a person overstays his/her authorized stay in the U.S. as indicated on the date stamped on the I-94 card. The I-94 is the arrival/departure record issued to the individual at the port of entry based on the underlying non-immigrant visa. But there are instances when unlawful presence does not begin to accrue until a determination is made by the USCIS.

An F-1 student whose I-94 card is marked D/S or duration of status does not begin to accrue unlawful presence even if the student failed to maintain F-1 status, either by dropping out of school or enrolling in less than the required credits, until the USCIS makes an adverse determination on his/her status. This may happen if the F-1 holder later applies for a change of status or for an employment authorization but is denied. An overstaying Canadian TN visa holder will also not start accruing unlawful presence until there is an adverse determination on his/her status by the government.

Also, unlawful presence does not accrue while a timely and non-frivolous application for change of nonimmigrant status or extension of status is still pending, provided that the applicant did not engage in unauthorized employment.

An H-1B holder who was terminated from the job but remains in the U.S. within the date stamped on the I-94 while considered out of status still has not accrued unlawful presence until after the expiration date on the I-94.

There are persons who are in unlawful status but do not accrue unlawful presence. They include minors under 18; asylees with a bona fide application for asylum unless they are employed without authorization; certain battered spouses, parents and children and victims of severe trafficking.

If a person is unlawfully present for more than 180 days but less than one year, he/she would be barred from re-entering the U.S. for three (3) years. If the unlawful presence is for one year or more, he/she would be barred for ten (10) years.

If a person is unlawfully present for an aggregate period of more than one (1) year and he/she re-enters or attempts to re-enter without being admitted, he/she would be barred permanently.

For the three-year bar to take effect, a person must have voluntarily left the U.S. prior to the commencement of removal proceedings and sought admission within three years from such departure. If his/her departure from the U.S. occurs after removal proceedings are commenced, he/she would not be subject to the bar.

The three-year period could refer to stays outside or inside the U.S. In one case, an applicant for adjustment of status who departed the U.S. and then came back with an advanced parole was no longer inadmissible at the time of the adjudication of his/her adjustment of status application because three years had already passed since his last departure.

In the case of the ten-year bar due to unlawful presence of one year or more, the inadmissibility requirements are different. The bar applies even if the person leaves the U.S. after the commencement of removal proceedings. His/her departure from the U.S. does not have to be voluntary and it could be the result of a removal order.

Both the 3-year and 10-year bars to inadmissibility may be waived. A person who is permanently barred may also seek consent to reapply for admission after having been outside the U.S. for at least ten years.

New Changes Affecting H-1B Petitions

 April 1, the first day for filing H-1B petitions for Fiscal Year 2011 that starts on October 1, 2010, is fast approaching. By now, employers that wish to hire highly skilled workers in specialty occupations should have gathered all their required documents.

There is a yearly cap of 65,000 and another 20,000 for those with master’s degrees from U.S. universities. Although the demand for H-1B visas last year was not as high as in the prior years, early filing is recommended. Last year was not a good year for businesses that hired H-1B workers and this was one of the reasons why the cap was not reached until December 21, 2009. This year, the economic situation has improved so that the cap is expected to be reached early.

H-1B is a non-immigrant visa category for temporary workers in specialty occupations such as accountants, architects, engineers, computer and information technology specialists and teachers. It requires as a minimum a bachelor’s degree or its equivalent.

There are several recent changes that employers should be aware of when filing H-1B petitions. The required Labor Condition Application (LCA) approval can no longer be obtained in one day. LCAs are now filed through the newly established iCert online system of the U.S. Department of Labor. Under the iCert, it takes at least seven (7) days to get it approved.

The LCA contains attestations by the employer regarding the proposed employment such as work location, period of employment and rate of payment which must be the prevailing wage or actual wage, whichever is higher. The LCA can be filed no earlier than six (6) months before the date of the intended employment.

Since there may be delays in the processing of the LCAs, it is advisable to submit the application early. It is important that all entries in the form are correct, particularly the Federal Employer ID Number (FEIN) of the petitioning employer. Inaccurate completion may result in outright rejection or denial.

Another recent change stems from a new United States Citizenship and Immigration Services (USCIS) memo that makes it harder to secure H-1B for staffing firms such as healthcare and computer consulting firms that hire professionals to work at third-party sites. The memo requires the employers to show that they have control over the day-to-day tasks of the employees.

Corporations substantially owned by a prospective H-B beneficiary would be restricted to petition for an H-1B on behalf of its owner-beneficiary because presumably, the beneficiary and not the corporation would have control over his/her own work.

If the numerical cap is met during the first five business days of the H-1B filing period, the USCIS resorts to a random lottery of qualified petitions; otherwise, it will continue to accept petitions until the H-1B caps are met.

Exempted from the H-1B cap are petitions filed by institutions of higher education or related or affiliated non-profit entities or non-profit research organizations or governmental research organizations. Also exempted are petitions for extensions of stay, change in terms of employment for current H-1B workers and concurrent employment in a second H-1B position.

Using A False Identity To Enter the U.S.

Obtaining a U.S. visa can be a challenging experience. Due to stringent requirements, not every visa applicant is approved. In fact, the percentage of denial is high. 

Some previously denied applicants have resorted to desperate measures in order to enter the U.S. They apply again using a false name, or assuming the name of another person. Some use fake visas and passports. 

Examples of these desperate measures are using a B-2 visa stamped on a photo substituted passport and using the green card of another such as a brother or sister who looks like them.

 If these persons succeed in getting admitted to the U.S. and they later apply for a green card on the basis of a family-based petition or an employment-based petition, they will be considered as inadmissible because of their fraudulent entry. 

The Immigration and Nationality Act states that any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation or admission into the U.S. or other immigration benefit, is inadmissible. 

This means that they cannot obtain their green card and may be subject to removal. Is there a remedy? 

A discretionary waiver is available to them but this requires a qualifying relative and proof that the removal of the alien will cause extreme hardship to the relative if the waiver is denied. A qualifying relative may be a U.S. citizen or lawful permanent resident spouse or parent. A child of said alien is not a qualifying relative. 

There is no exact definition of extreme hardship. Immigration judges and the Board of Immigration Appeals determine the presence of extreme hardship on a case by case basis after a consideration of many factors. 

These factors include ties of the qualifying family member to the U.S. and outside the U.S.; conditions in the country to which the qualifying family member will be relocated; financial impact of his/her departure from this country; and health conditions of the family member and the alien applicant and the availability of suitable medical care in the country of relocation. 

In a leading case, extreme hardship was not established because the alien and his wife did not have strong financial ties to the U.S.; the U.S. citizen knew that her husband was in deportation proceedings when she married him, and she had many relatives in the country where they would be forced to relocate and would not have difficulty making the adjustment there. 

But in another case, waiver was granted upon a finding of extreme hardship. In that case, the alien’s wife suffered from severe depression and could not stay alone in their house. She was also concerned about the health of her son who suffered from asthma and required frequent medical attention. Moreover, the country where they would be forced to relocate was in dire economic condition. 

An applicant for waiver of inadmissibility due to fraud or misrepresentation should submit Form I-601 and supporting documents. The documents should include an affidavit from the qualifying relative describing in detail the hardship that he/she would face in the U.S. in the event the applicant is removed from the U.S. and also the hardship that he/she will encounter if he/she were to relocate to the country where his/her spouse will return.

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