“Nicholson, 59, won’t join his competitors in hiring illegals. His Bruce Co. (bruceco.com) employs about 600 workers (including 65 from Mexico) and generates $45 million in annual revenues. Each year Nicholson spends more than $25,000 to satisfy immigration authorities that he can’t find legal U.S. residents to fill all his job openings. He places want ads, submits interview records, and fills out reams of paperwork. Only then can he receive an allotment of H-2B work visas from the U.S. Customs and Immigration Service.”

Put simply, following the immigration rules is much more time-consuming and expensive for business owners, a reality that must be addressed before real immigration reform can take effect.  Regardless, if you have an immigration law issue before you, contact the Houston immigration lawyers at Smith & Garg today to schedule an initial consultation. 

Earlier this year, Arizona passed what’s known as an “employer sanction law” that penalizes companies that hire illegal immigrants severely.  It is a very controversial measure, and became more controversial when, according to an article in the Arizona Capitol Times, Hispanic groups filed a lawsuit to challenge the law.

“Two Hispanic advocacy groups have filed a federal lawsuit targeting Arizona’s recently passed employer sanctions law on the grounds it unfairly impacts legal workers.

Chicanos por la Causa and Somos America argue that the legislation infringes upon federal authority and violates constitutional due process protections. The organizations are represented by attorneys from the Mexican American Legal Defense and Education Fund, the National Immigration Law Center and the Arizona chapter of the American Civil Liberties Union.”

This is going to be a hot issue before it’s resolved.  If you are facing an immigration issue, you need to contact a Houston immigration attorney at Smith & Garg today to schedule an initial consultation. 

In Philadelphia, people are still reeling and reacting to the terrible story from earlier this summer regarding the murder of three students in Newark.  The prime suspect for these murders turned out to be someone who is in the United States illegally.  As a result, according to a story published recently by the Philadelphia Inquirer, a local City Council member is proposing a new ordinance that will require the police to check the immigration status of all felony suspects.

“City Councilman Brian J. O’Neill said yesterday that he would introduce an ordinance to require Philadelphia police to check the immigration status of all felony suspects and notify federal immigration authorities and the District Attorney’s Office when a suspect is undocumented. A similar rule was announced last month by New Jersey’s attorney general.

In a heads-up letter to Police Commissioner Sylvester M. Johnson, O’Neill wrote: “In light of the recent murder of three college students in the city of Newark – where one of the suspects is an illegal alien previously charged with three felonies, including child rape and aggravated assault – I want to ensure that the Philadelphia Police Department requires arresting officers to check the immigrant status of arrested suspects.”

The biggest problem in the past has been lack of communication between enforcement entities, and it’s looking like some are making the effort to improve those lines of communication.  Therefore, if you have potentially lingering immigration issues, you need to contact the Houston immigration attorneys at Smith & Garg today to schedule an initial consultation. 

Immigration is an issue that’s being debated in every context in our society, and one of the most prevalent areas in which immigration issues are raised occurs when analyzing hiring practices of employers around the country.  This point was reinforced by an article that ran recently in the USA Today. 

“Scores of men barely out of their teens and others nearing retirement age cluster by trucks slowly cruising two blocks of a bustling immigrant neighborhood.

The jornaleros, or day laborers, hold up fingers and negotiate in scant English for a day or more of work.

But spots like this one have become a target nationwide for anti-immigration activists who see the day-labor sites as an example of illegal immigration running out of control.

Often armed, Texas Minuteman members started recording and photographing contractors and laborers in the Dallas and Forth Worth area this summer.”

This issue is only going to become more intense until a workable solution to the immigration issue is attained.  If you have immigration concerns, please contact the immigration lawyers at Smith & Garg today to schedule a consultation. 

As everyone understands, immigration is one of the hot-button issues facing our society today.  Politicians at every level are feeling the heat from their constituents on both sides of the issue, and many are reacting to demands for tougher immigration standards by passing local laws and ordinances that attempt to regulate immigrants and their status in one way or another.

However, a question that’s perhaps more poignant is coming to the forefront in regards to these local laws, which was pointed out recently in a Washington Post column that was reprinted in the San Francisco Chronicle – are these local laws legal? 

“The validity of the measures, designed to regulate an area long considered part of the federal domain, is among the murkiest territories in the already-byzantine field of immigration law, they say, largely because local leaders have never before felt impelled to act, and so there are few specific court rulings to offer clarity.

“You have this complex overlay of statutes and regulations and court cases, and you’ve got this federalism question of … what has traditionally been federal power and what the states can do,” said Jan Ting, a Temple University law professor. “There could not be an area of law that is less clear than this, I think.”

Among the many likely results of congressional inaction on immigration, experts say, will be a flood of litigation over local laws. Ordinances in Farmers Branch, Texas, and Valley Park, Mo., are facing court challenges, and activists in Prince William County, Va., have threatened to file a lawsuit over the county’s resolution to crack down on undocumented immigrants, including limiting access to public benefits.”

This issue is likely to reach high levels of the government before it’s resolved with any clarity.  However, you should not wait to see what happens.  If you have an immigration problem, contact the immigration lawyers at Smith & Garg today to schedule a consultation. 

I entered the U.S. illegally October last year.  I am from Oaxaca Mexico.  Ethnically, I am a descendent of Mixtec Indians.  Although I left Oaxaca to come to the U.S. for a new opportunity, I also left because the Mexican Federal Police was destroying my village.  Many people were arrested as part of the government’s operations and beaten up and their fields were burned.  Although I was not beaten up, my field was also burned because the fire was out of control.  I was fearful that I might also be targeted next and so I left in the middle of one night. When I came to the U.S., my church helped me file an Asylum application with the Immigration services. 

Last month, the application was denied.  I am facing a deportation hearing.  What can I expect?  If I lose, can I appeal? How?  Please help!

Dear Antonio:

First, I am sorry to hear what happened to you and your village and also for the unfortunate USCIS’ decision in denying your Asylum application.  When you said that you are facing deportation hearing, I am presuming that you have received a Notice to Appear letter from USCIS that you will be require to appear in an Immigration Court in the near future.   Whether an actual allegation has been filed with the court is not known.  I will explain the removal process and reliefs you may have based upon the facts provided.

A Notice to Appear is a document notice from USCIS that they will file a charging document against you in Immigration Court, alleging that you are a removable (deportable alien).  Whether the actual charging document has been file is a matter unknown; but if it has not been filed, USCIS will file the charging document sometimes in the near future.  The document will allege that you are a National of Mexico, that you entered the country as an undocumented alien in October of 2006, and that you are a removable/inadmissible alien.

The court will schedule a day for your appearance, which you MUST appear or face an order of removal filed against in “in absentia.”  That is, the court will enter an order against you even though you were not present in court.  When you and your attorney appear in an Immigration Court (IC) for the first time, it is called a “Master Hearing” or also referred as a “Master Calendar Hearing.”  At the Master Hearing, the court will ask whether you and your attorney are ready to make your plea.  If you are not ready, such as the attorney has only been recently obtained, the attorney can ask the Court to reschedule the Master Hearing at a later time until the attorney has the opportunity to review the case and find reliefs for you, if any.

If you and your attorney is ready to answer the Court, the Court ask how do you plea to the charging document? Most of the time, the charging document is correct on the facts, and so there is really not much to argue.  Your attorney will then concede (or stipulate) to the charges.  The court would then ask if you and your attorney have identify any reliefs.  Again, if you still have not had the opportunity to identify the reliefs, the court will also allow you more time and reschedule the hearing.  Whether the court allows the reschedule is in the Judge’s discretion; and most of the time, if the circumstances are reasonable, then the Judge would allow a reschedule.

In an event that you and your attorney already identified the reliefs, you can apply for such relief with the Immigration Court.  In some instances, an alien may has a pending case with USCIS that would provide a relief, such as an I-130 petition by a spouse or parent that is a U.S. citizen.  If so, the Court will “continue” the case until a later time until USCIS has made their decision.

With respect to your specific case, you can file an Asylum application, as well as Withholding of Removal Application, and an Application under the UN Convention Against Torture (CAT), with the Immigration Court, even your Asylum with USCIS was denied.  The Immigration Court must act as a fair adjudicator based on the facts and law.  Thus, the denial by USCIS will not affect your chance of obtaining an approval from the court.  The facts of this case seem to indicate that you have a meritorious application for Asylum.  You are a member of a targeted group based on race (a Mixtec Indian).  You have been in the U.S. for less than 1 year when you first filed for Asylum.  You have credible fear of future persecution and that you cannot safely be removed to another country or to return to Mexico.  You have not committed any crime against Humanity; and based on the facts, it does not seem like you have committed any crime or fraud upon the U.S. government.  Thus, you have a good chance to show that you are qualified for Asylum and CAT.

In the event that the Immigration Judge denies your Asylum application, you can still ask the judge for reliefs.  In this case, you can ask the judge for Voluntary Departure. Voluntary Departure will allow you to leave the U.S. within 90 (sometimes 120 days) from the merit hearing with the Immigration Court.  Although you have to leave the country, there would be no “order of removal” filed against you.  This would allow you to come back to the U.S. at a later time if you are qualified under any other category.  At the same time, your attorney should reserve your rights to appeal and appeal to the Board of Immigration Appeals (BIA).  If the government’s attorney oppose and the Judge does not allow Voluntary departure if you desire to reserve your right to appeal, then it is up to you and your attorney to decide.  If you think that you have a meritorious claim but that the judge abused his discretion, then you should reserve your appeal.  A Notice of Appeal must be filed with the BIA within 30 days and provide the reasons for your appeal.  If you choose to file an appeal motion to the Court, then you must draft the appeal Motion and can either file it concurrently to the notice or do so at a later time.  If the BIA denies your appeal, then you can still appeal to the Circuit Court of Appeals (federal court) within your jurisdiction. Removal is a very complicated area of immigration law. 

An alien should never attempt to appear “Pro Se” or “Pro Per.”  This is the same reason why the Immigration Judge usually allows a Respondent, such as yourself, to reschedule at a later time if you do not appear with an attorney.  Please contact our immigration attorneys at Smith & Garg, LLC. for a more detailed consultation and representation. 

Dear Mr. Rodriguez:

As a U.S. citizen, you have several options to sponsor your fiance to come to the United States.  However, you are interested in the best way, as well as the fastest way, to sponsor your fiance.  Those two may not be the same.  I will explain further.

The first option is that you can sponsor your wife under a nonimmigrant visa for fiances, a K-1 Nonimmigrant Visa Petition.  Under K-1, your fiance (and dependent is applicable) may enter the country as a nonimmigrant.  Within 90 days upon entering, you and your fiance must get marry in the U.S.  If for some reason that your fiance and you do not get marry within 90 days or that she decides to marry someone else, then her I-130 Petition for Alien Relative and Ajustment of Status application will not be approved.  In addition, within that 90 days, she may not leave the U.S.  Once you are married, you can then sponsor for her and adjust her status to a U.S permanent resident (a Green Card holder).  This may be the fastest way to bring your Fiance to the U.S., but it is not the safest way because the U.S Consular officers are very suspicious of Fiance petitions due to frauds.  You will need heavy documentations to support your petition.

The second way of sponsoring your fiance is one that you also brought up.  You can get marry with your fiance in Costa Rica and then file an I-130 petition for Alien Relative on her behalf.  Because you are a U.S. citizen, and visa will be immediately available for her to come to the U.S.  However, because she would get a green card within 3-4 weeks upon entry, the U.S. consular will subject her to background checks, which can take up to 1-2 years.  Thus, although an I-130 petition would be the safest way to apply for your wife, it may take sometime.

The third option is  for you to get marry with your spouse in Costa Rica.  However, in conjunction with the I-130 petition, we will also file a K-3 Nonimmigrant Visa for your spouse.  Under K-3, your spouse will be able to join you in the U.S. while waiting for the background check.  Thus, she will be able to come to the U.S. once the I-130 petition is approved, but before the background check is done.  The result is that she will be able to join you in the U.S. within 6-9 months upon filing, and yet, it is safer than to apply through a K-1 fiance visa. 

For more details of each of these visa categories, please contact one of our attorneys. Because you are in San Antonio, you can obtain a telephonic consultation with one of our immigration attorneys.  You will be able to pay for the consultation fee either over the phone or through the web, using Paypal.   Thank you for your inquiry.  We look forward to assist you in your application. 

Dear Emanuel:

Cuban nationals fall under two special categories.  The first of which is that a Cuban national who is admitted or paroled into the United States (documented aliens) after January 1, 1959 may apply for adjustment of status to obtain a green card after being in the U.S. for at least one year, has not committed fraud upon the U.S. government, and is not a removable or an inadmissible alien.  Their dependents and spouses can also adjust their status under this category.

The second category, which would apply in your case, is under The Nicaraguan Adjustment and Central American Relief Act (NICARA).  NICARA allows certain aliens from Cuba and Central America an opportunity to adjust his/her status to be permanent residents, even though the alien may have entered the U.S. without inspection (undocumented).  Special rules apply to each varying country.  However,  if the alien is a Nicaraguan or a Cuban national, the person must show that he/she has been continuously resided in the U.S before December 31, 1995.   Additionally, just as in any other applicant, the alien must show that he/she has not committed an aggravated felony or a crime of moral turpitude.  In addition, the alien must prove that he/she is not a public charge and has not depended on public assistance. 

Please contact one of our immigration attorneys for consulations with respect to NICARA and Adjustment of status.

 Dear Ahmet:

I will answer your questions in 2 folds.  First, I will answer your H-1B question.  Second, I will go into some details about your DWI arrest.

As an H-1B visa holder, you are authorized to stay in the U.S. under this category at the maximum of 6 years.  After the 6 years, you will have to return to your home country for at least 1 year before being able to return to the U.S.  However, because you have been here for 4 years, which means you are currently in your 5th year, your employer must immediately begin sponsoring you under an employment based petition. To begin the sponsorship application, your employer must file a Labor Certification for you through an electronic process called “PERM.” Once the PERM has been filed more than 365 days, you can request for extensions of your H-1B beyond the 6 years limit, waiting for a visa to be available based on your priority date, which in this case would be the date of your Labor Certification receipt.  If you are an executive manager, and that your your current employer is a sister of (or co-owned by) an alien company, you will not be required to file a PERM.  Instead, you can file for employment based petition as a Multinational Executive Transferee under Employment Based Category 1, subcatrgory (c).  If a visa is available, you can file the the I-140 and the adjustment of status application all at once.

To adjust your status under EB-3, as a professional or skilled worker, your employer must file an I-140 Immigrant Petition for Alien Worker under employment based petition on your behalf.  Once you have an approved I-140 petition or when a visa is available for you based on your priority date, whichever is sooner, you can file for an adjustment of status application to become a U.S. permanent resident (a green card holder).   Once you became a permanent resident for at least 5 years, or if you are married to a U.S. citizen for at least 3 years, you may apply for naturalization and become a U.S. citizen.

This brings us to your second concern.  To be naturalized, as part of the requirements, the applicant must show that he/she is not an inadmissible or removable alien (there are distinctions and carry different meanings between these two categories).  Based on IIRIRA, a removable alien is one that committed an aggravated felony or committed a crime of moral turpitude.  A DWI conviction is not a crime of moral turpitude unless the arrest incident involves serious bodily injury or death to the victim.  Thus, generally speaking, 1 single conviction without further incident is not a crime of moral turpitude and the alien is not removable.  However, DWI convictions could be interpreted that the alien has bad moral character, especially within the 5 years within the statutory period (a period in which an alien is qualified to apply for Naturalization).  As such, USCIS may deny the alien’s naturalization application.  In this case, you were arrested only 1 time.  In addition, you did not indicate that it was the result of a major accident in which serious bodily injury may have occurred. Finally, you are currently an H-1B visa holder, and thus the conviction most likely would fall outside of the 5 years statutory period once you are qualified to apply for naturalization.  Conclusively, the recent arrest or conviction, based on the facts provided, would not harm your chance of obtaining a green card and/or naturalization at a later time; though, the USCIS may review your background beyond the 5-years statutory period and look at the context of the application as a whole to determine if you have good moral character.  Thus, it is always very important to retain the services of an immigration attorney in filing for your Naturalization application.

I hope my response is helpful to you.  Please contact our office for a more detailed consultation and to assist you in your immigration matters. 

Jun 28, 2:24 AM — What can I do to open a business in the US and work here? I am from England.

Dear Boris: Depending on your background, you may have several options to come to the U.S.  to work and/or open a business.  First, because you a U.K national (assuming this is what you meant “from England”), you can come to the U.S. under Visa Waiver (i.e. you do not need a visa to come to the U.S. for a period of 90 days).  However, if you intended to change your status to a different category upon your arrival, then you should not come to the U.S. under Visa Waiver; but instead, you should apply for a B-1 Visa (Visitor for Business) at the U.S. Consular Office. Your U.S. immigration attorney can assist you in this process. Because you a national of the United Kingdom, you can apply for a variety of visas at the U.S. Consular in England (or if in the U.S., you can change your status with USCIS).  For example, because the U.K and the U.S have signed Commerce and Navigation Treaty, you can apply to enter the U.s. to invest as an E-1 Treaty Trader or an E-2 Treaty Investor.  If you have a foreign company, or working for an international company, under L-1 Intra Company Transferee Visa, you can be transfer to the U.S. to work in the U.S. sister/subsidiary/or parents company, or can start-up a new company on behalf of the foreign organization.  If you are a “professional”, such as an engineer, and teacher, a registered nurse, and accountant, etc., you can also apply for a professional worker visa, H-1B.  Alternatively, if an employer in the U.S. apply for your immigrant petition, based on 1 of the 5 employment based petition categories, you can also come to the United States to work permanently.  For more information, please contact Smith & Garg, LLC.

Dear Ian:

F-1 Student Visa is a nonimmigrant visa that would allow aliens to enter the U.S to study.  Student visas are not limited to undergraduate and graduate programs, it is oftn the case, as it is in your situation (i.e. F-1 students visas can be applied to highschool and grade school students).  Subsequent to your undergraduate degree, you have several options.  First, you can maintain your F-1 by entering a graduate degree.  Alternatively, you can obtain employment authorization to work for one year after graduation under “Optional Practical Training,” (OPT).  Finally, an employer can also hires you, if you are qualified as an H-1B professional worker.  In which case, you will apply for a “change of status;” from an F-1 Student to an H-1B profesional worker. 

In your case, an employer is willing to sponsor you.  However, you must be working in your specialized field, and such field must be one of the categories in which USCIS determined that your job qualified as a “professional.”  You might want to talk to an immigration attorney to determine if you may be qualified for other visas, such as L-1 Intracompany Transferee, E-2 Treat Investor,  or an employer may even be able sponsor for your immigrant visa and to file for your green card if a visa is available.  Please contact us so that we can assist you in your immigration matter.