The Asylum Process

There has been a lot in the news lately regarding the refugee program of the United States, especially in light of the current controversy of President Trump’s Executive Orders on Immigration. This blog sets out to provide some background information on the Asylum process.

Applying for Asylum in New York and New Jersey

Even though the Department of Homeland security reports that in 2015 there were 26,124 individuals who were granted asylum, obtaining asylum can still be a particularly difficult process. A talented asylum attorney like Robert Maher, P.C. knows how to best help individuals involved in these types of situations. In addition to obtaining the services of a talented attorney, it is often a wise idea for an individual applying for asylum to understand some important details.

Why Asylum Is Desired

Individuals who are classified as refugees are likely to qualify for asylum. Refugees include any individual who is outside their country of residence and unable or unwilling to return to that country due to a well-founded fear of persecution. This persecution can be due to the individual’s nationality, membership in a particular social group, political opinion, race, or religion. Individuals must be aware that there are a number of reasons why asylum can be rejected including: assisting in genocide, having a record of persecuting another, being convicted of a serious crime and representing a danger to the United States, having committed a serious nonpolitical crime outside of the United States, and representing a danger to the security of the United States.

How Asylum Affects Work and Families

There are two particularly important daily elements that individuals applying for asylum are often curious about:

·  Family. Individuals are often curious as to whether an individual’s family can also be granted asylum. An individual can include their spouse and unmarried children under the age of twenty years old. If individuals do not include family in an initial asylum application, an individual can petition to bring these family members to the United states once asylum has been granted through a Form I-730, which is also called a Refugee/Asylee Relative Petition.

·  Work. Individuals will be eligible to work immediately after being granted asylum. Individuals might wish to obtain an Employment Authorization Document, which can help for identification purposes.

The Asylum Process

Applying for asylum is a particular difficult process for individuals, which involves filing a Form I-589, which is also known as an Application to Extend/Change Nonimmigrant Status. The location where an individual submits the Form I-589 however, depends upon a variety of circumstances including:

·  Individuals Applying for Asylum for the First Time Who Are Not Involved in Removal Proceedings. Individuals in this type of situation should apply at the U.S. Citizenship and Immigration Service Center that has jurisdiction over the individual’s place of residence.

·  Individuals Applying for Asylum Who Were Previously Denied Asylum. For individuals who are involved in this type of situation, the individual must apply at the asylum office that has jurisdiction over the individual’s place of residence.

·  Individuals Engaged in Removal Proceedings. Individuals engaged in this type of situation should apply at the immigration court that jurisdiction over the individual’s place of residence.

·  Individuals Who Are Part of A Group or who Entered the United States Pursuant to the Visa Waiver Program. This category of individuals should apply at the U.S. Citizenship and Immigration Service Center that has jurisdiction over the individual’s place of residence.

Obtain the Services of a Skilled NYC Immigration Attorney

Asylum applicants can expect to receive a decision within six months of their application. Individuals seeking asylum frequently wonder when it is essential to bring an attorney to the immigration process. It is critical to understand that while it is not required, applicants who bring a talented immigration attorney like Robert J. Maher, P.C. are much more likely to succeed with asylum applications. If you are seeking asylum, do not hesitate to contact Robert Maher Law by either contacting us online or by phone at(212) 939-7548.

Shoplifting and Immigration

Shoplifting and Deportation in NYC

Drug offenses and violent crimes are not the only types of criminal charges that can have profoundly negative impacts on an individual’s immigrant status. Shoplifting is another particularly serious charge that can have substantial repercussions. The National Association for Shoplifting Prevention reports that more than 10 million people have been caught shoplifting in the last five years. Because an individual’s ability to legally remain in the United States might be shaped by a shoplifting charge, individuals faced with a shoplifting conviction frequently find it essential to retain the services of a skilled immigration attorney like Robert J. Maher, P.C.

The Definition of Shoplifting

Many individuals are unaware that shoplifting can include many more types of activities that merely taking something from a store without first paying for the item. Shoplifting charges can also involve acting as a lookout as well as other frauds including manipulating price tags or returning items to a store that were not initially purchased at the store.

The Consequences of Shoplifting on your Immigration Status

Shoplifting is often classified as “a crime of moral turpitude”, which is considered by government to violate the standards of morality that are expected by individuals in a community.Not only can a charge of shoplifting have negative implications for travel or visa applications to the United States, for immigrants currently living in the United States there are also other significant consequences including the following risks:In some situations, individuals can even be deported for shoplifting. There are many factors that will influence whether an individual will be deported from the United States including:

·  Crimes Committed Within Five Years. Individual who committed the crime of shoplifting five years after being admitted to the United States are at particular risk of deportation.

·  Aggravated Felonies. Some shoplifting convictions are considered serious enough to be classified as aggravated felonies for immigration purposes, which will likely mean that an individual will have no relief from deportation and likely will never be able to return to the United States.

·  Illegal or Out of Status Individuals. For individuals who entered the United States illegally or are out of status, an arrest for shoplifting will likely bring the individual before the Immigration and Customs Enforcement who can deport an individual in this type of situation even if the individual is not convicted of shoplifting.

Advice for Immigrants Charged with Shoplifting

There are several important pieces of advice that individuals who are charged with shoplifting should remember:

·  Understand Plea Agreement Consequences. A skilled immigration attorney can help individuals understand the consequences of a plea agreement before deciding whether to accept a plea or proceed to trial.

·  Contact A Talented Immigration Lawyer. Individuals should also try to consult with a knowledgeable immigration attorney as soon as possible. During a first meeting with an experienced immigration attorney, individuals should make sure to bring all important paperwork regarding the offense.

Obtain the Services of a Skilled New York and New Jersey Immigration Attorney

If you have been charged with shoplifting and are an immigrant, it is an extremely wise idea to obtain a seasoned and knowledgeable immigration attorney today like Robert J. Maher, PC. The legal team at Robert Maher Law understands the exact implications that a shoplifting charge can have on an individual’s immigration status. Contact hesitate to contact attorney Robert Maher today either online or by calling (212) 939-7548.

Trump's Executive Order

On Friday, January 27, 2017, President Trump signed an executive order titled “Protecting the Nation from Foreign Terrorist Entry into the United States.” The order was directed at seven countries: Iran, Iraq, Libya, Syria, Somalia, Sudan and Yemen.  President Trump determined that each of the above countries had foreign nationals that posed a threat to the safety and security of the American people. In addition, President Trump’s order suspends the Refugee Resettlement Program for 120 days.     Parts of the order have been stayed by a federal judge, but the order itself has not yet been found to be unconstitutional.  In the meantime, dealing with the effects of the Executive Order are ongoing.

 Below are answers to several questions you might have in light of the Executive Order: 

 I am from one of the target countries, but have a valid visa, am I banned?

The short answer is yes. The Order as it is written applies to holders of valid visas.  This means that if you are a student with a valid F-1 visa, for instance, and are a citizen of one of the affected countries, you will not be granted entry to the United States. 

 I am from one of the target countries. I am a green card holder. Does the ban apply to me?

No. There is a lot of confusion over which was created by the manner in which the Executive Order was implemented. Initially, green card holders were denied entry. This was improper and unlawful.  Green card holders, legally known as Lawful Permanent Residents (“LPRs”), have due process rights that the Customs and Border Patrol do not have the right to revoke.  A person may only be stripped of the status as a Lawful Permanent Resident by an immigration judge. 

On Saturday, there were reports that green card holders were turned back and also asked to sign Form I-407 (Record of Abandonment of Lawful Permanent Resident Status).  On Sunday, the Trump Administration clarified that the Order does not apply to green card holders. 

How can I protect my rights if I am a green card holder?

As stated above, LPRs have due process rights that cannot be summarily taken away without an order from a judge.  Therefore, it is imperative that you do not sign any documents that are unfamiliar or seem to not be in your best interest.  Ask to contact your attorney.  You may be detained longer as a result, but your rights will be protected. 

 Customs and Border Patrol (“CBP”) Agents have a lot of discretion to take travelers into Secondary Screening.  Some circumstance where this applies are if you have traveled abroad many times or if you have certain convictions that the Agent deems render you inadmissible. 

 I have an arrest record. I am not a citizen. Is it safe to travel abroad?

The answer is “it depends.”  Convictions for certain crimes can render a person inadmissible under the Immigration and Nationality Act (INA).  If you are an LPR, have been convicted of a crime and are a national of one of the seven countries effected by the Order, you should seek the advice of an attorney before you make any travel plans. 

The above also applies to citizens of countries not subject to the Executive Order, and for green card holders in general.  There are reports that CBP has asked LPRs from countries that are not affected by the ban to sign documents relinquishing their status as a Lawful Permanent Residents.  The level of scrutiny placed on all visa holders, immigrant and otherwise, has increased dramatically in a short time.   If you have an arrest or a conviction and are not a citizen, seek the advice of counsel prior to traveling abroad. 

 I am a student in one of the effected countries. I was told I cannot re-enter the United States.  Isn’t this illegal?

It is not clear which, if any of the provisions of the Executive Order, will be upheld, but in the meantime, news reports suggest that CBP and the Department of Homeland Security (“DHS”) will continue to deny people entry at ports of entry and will, though airline abroad, prevent people from embarking on trips to the United States if they are citizens of the affected countries.  Visas are issued by the United States State Department and do not confer the right of automatic entry into the United States.  The CBP permits entry.  Although, the granting of a visa usually means that the holder of a visa will be permitted to enter the United States that is not always the case.  Two examples of when a visa holder may denied entry are if the person is believed to be a threat to the security of the United States and if the visa holder is a suspected drug trafficker. 

Is there anything I can do to lessen the impact on my situation? 

If you are an LPR, and meet the requirements for citizenship, you can apply for naturalization.   This takes time, but if you are approved will provide you a level of protection LPR status does not. 

Whatever direction you choose, consult with an experienced immigration attorney first.  United States immigration law is very complex and confusing.  There are a lot of potential pitfalls, and you should have as many facts at your disposal as possible prior to making any decisions.

If you are here on a student visa, visitor visa or some other type of visa do not leave.  If you do, you face the prospect of not being allowed to re-enter.  

There are numerous potential issues that arise from this Executive Order.  This blog is informational in nature and NOT legal advice.  Consult an experienced attorney if you have further questions related to this topic.  

                

The Election of Donald Trump and its impact on Immigration

The election of Donald Trump has sent shock waves throughout the United States and across the world.  As a candidate, President-elect Trump ran on a platform that included building a wall across the border between the United States and Mexico. Then he promised to enacted rules that affect the entry of both Muslims and refugees from the Middle East.  He also vowed to undo all of the executive orders signed by President Obama.  Many people are concerned about the effect his election will have on immigration and immigration reform.  The short answer is that no one really knows the initial priorities of the Trump administration.  As for the Trump administration's approach to immigration, there are a few things to keep in mind.

First, mass deportations are not very likely. People placed in removal proceedings have due process rights. The extents to which they slow or prevent removal (deportation) vary depending upon the situation, but there are protections for people whom the government decides it wants to remove.  It is important to remember that there has not been an "amnesty" under the Obama administration.  Although, the number of people in removal proceedings may have recently decreased, the number of people removed during his administration is larger than that of his Republican predecessor, George Bush.

Second, House Republicans have expressed interest in immigration reform, although it is not clear the shape it would take.  The Obama Administration called for comprehensive immigration reform. House Speaker and former vice-presidential candidate Paul Ryan has called for piecemeal changes to the current system.  We will probably have a better sense of the Trump's ideas and policies as his inauguration grows nearer.

Finally, much depends upon on how Trump emerges as President.  His rhetoric during the campaign was inflammatory, yet he struck a conciliatory note during his victory speech. During the campaign he promised to undo all of Obama's executive orders.  One such program is Deferred Action for Childhood Arrivals (DACA).  This program allowed those who were brought here as children to work in the United States and not fear deportation.  Revoking this program could immediately take away the ability of the 380,000 people to lawfully work in the United States. Whether that will be the approach of the Trump administration remains to be seen. Stay tuned.

USCIS Proposes Rule to Welcome International Entrepreneurs

The United States Immigration and Citizen Services released the below press release on Friday.  It lays out the Service's plan for permitting investors and international entrepreneurs to be considered for parole (temporary admission) to the United States to start or develop their U.S. based business.  It is not the "startup visa” that many entrepreneurs were hoping for to be certain, but it does allow individuals who meet certain criteria to be admitted to the United States to further the develop a business begun in the United States.  The rule would allow entry to those:

1) Who have a significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations;

2) Whose startup was formed in the United States within the past three years; and

3) Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:

a) Receiving significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments;
b) Significant awards or grants (at least $100,000) from certain federal, state or local government entities; or
c) Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

It will permit an entrepreneur to remain up to two years to develop a business and then permit an extension of parole for three more years provided the business has exhibited substantial public benefit.

As the press release linked below indicates, there will be a 45-day period for the public to comment.  After that period, the rule will go into effect when published in the Federal Register.

https://www.uscis.gov/news/news-releases/uscis-proposes-rule-to-welcome-international-entrepreneurs

Proponents will view this development as an overdue response to pent up demand for a means for entrepreneurs to contribute to the U.S. economy.  It is an ambitious proposal considering the current political climate.  Presidential candidate Donald Trump has vowed to end the H-1B program, which is a program through which US employers bring a limited number of foreign employees to work in the United States.  If the reaction by States to President Obama's Deferred Action programs are an indication of the response USCIS might expect from opponents, the success of the new rule's implementation are not guaranteed. 

Trump and The H-2 Visa

News sources are reporting that Donald Trump has hired seventy-eight  temporary foreign employees to work at his Mar-a-Lago Club in Pam Beach, Florida. Critics  are claiming that he employs a double standard as one of his main campaign themes is that he plans to bring jobs back to the United States. 

It is interesting to consider this issue as he is petitioning for these workers under the H-2B visa program, “Temporary Non-Agricultural Worker Visa.”  This visa exists so that employers who have difficulty finding workers for seasonal employment.  United States Customs and Immigration Service’s (“USCIS”) website lays out the requirements for what types of jobs qualify under the program: 

To qualify for H-2B non-immigrant classification, the petitioner must establish that:

1) There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
2) Employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
3) Its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary.  The employer’s need is considered temporary if it is a(n):

• One-time occurrence or Seasonal need or Peakload need or Intermittent need. 

In addition to demonstrating these requirements an employer has to file a Labor Certification Application (LCA) and advertise the position locally so that American workers have the opportunity to apply for the position.  The employer also has to keep records of its interviews of American workers and has to maintain records of interviews and explanations as to why US workers were not hired if requested. 

The requirements of the visa are designed so that an employer pays the employee the prevailing wage for the position, which in theory protects American workers.    Mr. Trump has claimed that he cannot find workers to work in the positions he needs filled, while others have claimed that he underpays the employees he hires despite the rules of the program.  

There are consequences for employers who violate the terms of this visa program, but this blogger has not found any reports that the Department of Labor or USCIS has taken any action against the Club for violating the terms of the program.  In the meantime, the debate about the overhaul of the immigration laws of the United States continues.  

Employers interested in the H-2 visa program are encouraged to consult with an experienced attorney with any questions.  This blog is for informational purposes only and is not legal advice.  

Australians and The E-3 Visa

The E-3 visa is available to Australians who have an offer of employment from a company in the United States that wishes to employ them.  The visa is similar in many ways to the H-1B visa in that the employment has to be for a specialty occupation. According to USCIS’s website, in order to be a specialty occupation, the job must meet one of the following criteria:

1)         A bachelor’s degree or higher or its equivalent is the minimum entry level requirement for the position;

2)         The degree required is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree;

3)         The employer normally requires a degree or its equivalent for the position;

4)         The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s degree or higher degree.

In order for the employee to accept the position, the beneficiary must meet one of the following requirements:

1)      Hold a U.S. Bachelor’s Degree or higher that is required for the position;

2)      Hold a foreign degree that is equivalent to a U.S. Bachelor’s Degree  required for the position;

3)      Hold an unrestricted state license, or certification that authorizes you to practice the specialty occupation and be engaged in the state of intended employment;

4)      Have education or training or progressively responsible experience in the specialty occupation that is the equivalent to the completion of such a degree.

The sponsoring company must also file an approved form ETA-9035, Labor Condition Certification (LCA, ) and Form I-129 "Petition for a non-Immigrant Worker" with USCIS. There are exceptions to this method of filing however. Under certain circumstances, a prospective employee currently working or living in the United State under a status other than E-3 may be able to accwpt employmnent under the E-3 visa. 

A petitioner employer may file an LCA for the prospective employee and upon approval request that the employee beneficiary apply for an E-3 visa on the Department of State's website and then follow up with the scheduling of an appointment for an interview at a consular post outside of the United States.  Depending upon the circumstances, this method may allow an employer to quickly hire a prospective employee, thus saving the time and expense often required to recruit and hire an employee who is qualified under this visa.  

Each circumstance is different so results will differ.   Contact an experienced attorney with any questions as the above is informational only and should not be construed a legal advice.