Author Archives: Timothy

Big Supreme Court case on immigration and deferred status

The big Supreme Court case on immigration and deferred status is scheduled to be heard on April 18. The Supreme Court’s decision here will determine if millions of immigrants are eligible for deferred status–if they’ll be able to obtain work permits and remain in the U.S. The Court will likely not actually make a decision until sometime in June.

Lower courts ruled against these immigrants. Because Justice Scalia died recently, and because he has not yet been replaced, there’s a good chance that a Supreme Court decision could be tied at 4-4, which means that there won’t really be a decision made, and the lower court’s ruling will stand.

If, however, immigrants and President Obama win here, and the Supreme Court decides that deferred status (DAPA) can move forward, immigrants who qualify will be able to get deferred status and work permits. It will most likely take a couple of months after the decision is made–sometime in the fall of this year–before the government has a system put in place to allow individuals to apply.

If this does pass, here are some things you can do to prepare:

  1. Put together evidence that you’ve been in the U.S. since January 1, 2010. Common kinds of evidence: school transcripts, bills, rental leases, receipts, medical records, etc.
  2. That you were actually in the U.S. on November 20, 2014. This is the date when the program was announced. Again, school transcripts, bills, rental leases, receipts, medical records, etc.–dated from early November to early December 2014–can be useful here. Don’t worry if you can’t find evidence with the specific date of November 20, 2014, as long as you can find plenty of dates around that time.
  3. As of November 20, 2014, you must have a child who is a U.S. citizen or permanent resident. Most often, this means that you must have a child who is born in the U.S. Make sure you have a copy of their birth certificate.
  4. If you don’t have any children who are citizens or permanent residents, you may still be able to obtain deferred status if you can meet the other criteria, and if you were under the age of 16 when you entered the U.S. In order to do this, you’ll need to graduate from high school, obtain a GED, currently be a college student, or meet certain other criteria. If you’ll be taking this route and you don’t have a high school degree and aren’t currently a student, it may be a good idea to start working on your GED.
  5. Find your criminal record. If you have too big of a criminal record, you’re not eligible. This is a complicated area–if you do have any kind of criminal record, even misdemeanors, you’ll want to talk to an attorney before moving forward. Meanwhile, get all the records you can–police reports, court documents, etc. Even if you were a minor at the time, and even if you were not charged as an adult.
  6. Don’t screw things up. I’ve seen this happen too many times and it’s always tragic. Don’t do anything that would put you at risk of getting arrested. Even something as small as a DUI can ruin things. If you do get a DUI or some kind of other charge, don’t depend solely on a public defendant attorney to help you out. An immigration attorney can help you know what charges would be best to plead guilty to, and what charges you need to avoid.

We’ll have to wait and see what the Supreme Court gives us in June. Hopefully they’ll make the right choice and allow millions of immigrants who’ve been in the U.S. for six years or longer, and meet other criteria, the ability to obtain work permits here.

Immigration and Presidential Candidates

Election contests have narrowed down the number of candidates currently running for president. Idaho’s holding an election today–so get out and vote.

Here’s where the major candidates stand on immigration:

Democrats:

  1. As I’ve previously stated, Hillary Clinton supports a pathway to citizenship for undocumented immigrants. This sets her apart from the Republican candidates. However, her immigration stance hasn’t always been so immigrant-friendly. It’s not clear that immigration issues are a big priority for her.
  2. Bernie Sanders also supports a pathway to citizenship. However, he’s against expanding the number of temporary work permits, perhaps due to the fact that employers often exploit temporary workers, or perhaps because he wants to protect U.S. citizen workers.

Republicans:

  1. Donald Trump’s stance on immigration is extreme. He wants to change the Constitution in order to make it so people who are born in the U.S. don’t automatically become U.S. citizens, he wants to build a wall between the U.S. and Mexico and magically get Mexico to pay for it, he wants to deport every undocumented immigrant, and he wants to prohibit all Muslims from entering the United States. As far as legal immigration, Trump also wants to put a stop to much of that.
  2. Ted Cruz shut down the U.S. government because he didn’t like a pro-immigration bill. He’s against deferred action. He’s stated that he’ll deport anyone here who’s not here legally.
  3. Marco Rubio was historically moderate on the issue of immigration. He helped write moderate immigration reform bills in 2013. Unfortunately, he has since said he’d reverse President Obama’s deferred status program. He’s also stated that we need to “secure the border” (whatever that means) before taking on other elements of immigration reform.

There are other candidates, but right now their chances of winning are slim. If Mitt Romney or someone else ends up being a serious contender, I’ll provide an update.

Rubio was the best chance Republicans had to holding on to some of the pro-immigrant vote, but he’s moved so far to the right on immigration that he’s no longer a viable option. Donald Trump and Ted Cruz will not be immigrant-friendly. So the options are Hillary Clinton and Bernie Sanders. Unfortunately, it’s hard to tell which of these two will do more to help immigrants.

 

 

EB-5 Investor Visas and China

Wealthy Chinese have been using investor visas, or EB-5 visas, to enter the United States for a long time. In the past, there wasn’t much of a wait time. Unfortunately, over the last year or two, so many Chinese have signed up for EB-5 visas that they’ve surpassed the quotas, meaning that the process is no longer relatively quick. In fact, it may take several years.

That being said, if you’re Chinese and you want to obtain a U.S. green card for–and eventually citizenship–for yourself and your family, this is probably your best route.

Keep in mind that you’ll only need $500,000 if you’re investing in a rural area. “Rural” does not mean isolated. In fact, you can put your “rural” business 15 minutes from a city of 100,000 if you located it somewhere like Shelley, Idaho. In fact, since you need to employ 10 people for your investor visa, a place like this would be perfect–lots of hardworking individuals willing to work for lower wages.

If you don’t mind being a bit further from a city, nearby western Wyoming and western Montana are also very rural. In fact, if you want to set up your company near the famous Yellowstone Park or in the Tetons (Jackson Hole area), you’ll not only be able to do so for $500,000 or so (because almost all of the areas around here are classified as “rural”), you’ll also be close to some of the most amazing place in the U.S. And with an estimated 500,000 Chinese visitors per year in the Yellowstone area (yes, that’s correct–500,000 a year just from China), a business run by Chinese that caters to Chinese could be very successful here.

Again, the process may take more time now, but for most wealthy Chinese it’s the best way to live in the U.S. However, it’s also a complicated procedure. Make sure you hire an experienced immigration attorney to assist you.

Embarrassing Questions at the Immigration Interview

The person conducting an immigration interview with a married couple wants to make sure the couple is really married and not just going through the motions in order to commit immigration fraud. So they’ll ask you all kinds of questions about your personal life together. If you have children together and have other convincing evidence, the interview may be more of a formality. If the interviewer has doubts as to how real your marriage is, they may dig a little deeper, into the kind of questions that are not asked in polite company.

Quick warning–the questions below, despite being questions individuals have actually been asked at a green card interview, are not suitable for children.

Keep in mind that the husband and wife are interviewed separately.

Question 1: When was your last (or when was your wife’s last) menstrual period?

Question 2: What do you and your spouse wear in bed?

Question 3: What kind of birth control do you use?

Question 4: Are you (or is your husband) circumcised?

You can imagine that other embarrassing questions also get asked. It seems like there are so many non-offensive questions that can be asked that one wonders why the interviewer needs to dive into the embarrassing ones. Perhaps the interviewer has asked a lot of other questions and still has doubts about the validity of the marriage. Or perhaps the interviewer (or maybe his or her boss) is just a pervert. Like all the other questions, though, if you know the answer, answer it honestly. If you’re not sure, don’t guess–just tell the interviewer that you’re not sure. And stay polite. Don’t call the interviewer a pervert for asking these sorts of questions.

Many permanent residency interviews don’t involve embarrassing questions. If yours does, deal with it, answer the question, and move on.

Do I need an attorney for immigration?

Do you need an attorney for immigration?

Some things to think about:

  1. If you have complicated taxes, do you use an accountant? If our taxes are pretty straight forward we might do them ourselves or we might buy a software program to assist, but sometimes they’re complicated enough that an account is needed Immigration work is a little bit like complicated taxes–except that usually the outcome of your immigration application is much more important.
  2. If you screw up on your immigration paperwork, the consequences can be life-altering. This pertains to both the paperwork itself, and to the decisions you make prior to filing the paperwork. A common example (and there are many other examples): you come into the U.S. with a visitor visa and with plans to stay in the U.S. and get married here. You come, you get married, and you apply for a green card. Guess what? You did it wrong. Your green card application is turned down, you are deported, and you are no longer allowed to come into the U.S. An immigration attorney can help you avoid this sort of problem before it happens.
  3. Supporting documents. An immigration attorney knows what supporting documents you’ll need and what will need to be translated into English.
  4. Filling out the form. An immigration attorney knows what to put into the form when it asks odd questions, and what to leave blank. He’ll make sure the forms are filled out properly.
  5. Perhaps there are better immigration options out there than the one you’re looking at. Maybe you’re actually eligible for a green card, and not just deferred status. Maybe there’s a better way to get the green card. Maybe there’s a quicker way. An immigration attorney can help you know how to speed the process up.

Talk to an immigration attorney first. You’ll have a better chance at success.

How to get a third K-1 Visa

Immigration law is clear. You cannot apply for more than two K-1 (also known as fiance) visas in your lifetime. But it is possible to get a waiver, and to become an exception to that rule.

The rule limiting K-1 visas to two was put into place in order to prevent people from taking advantage of the K-1 visa process. Marriage fraud is a common problem in the U.S.–two people getting married so that one of them can get a green card, and not because they want to live happily ever after. Limit K-1 visas to two a person, and you can limit the number of fraudulent marriages. The waiver process was put into place so those who have not engaged in fraudulent or fraudulent-like marriages can go through the K-1 visa process again.

Normally there’s no need to get a third fiance visa. You get one, you get married, and you live happily ever after. Or you get one, after a few years your marriage falls apart or your spouse passes away, you meet someone new, get a second fiance visa, and live happily ever after.

Sometimes, though, life is more cruel. Typically it’s a combination of an engagement falling through, divorce, and/or death. For whatever reason, you’ve already applied for two K-1 visas, and now you’ve met someone new and you want to apply for a third K-1 visa. What do you do?

You apply for the K-1 visa. But you also need to apply for a waiver. Immigration doesn’t give you a great explanation of what they’re looking for in the waiver. My experience, however, is that they want to know that your previous marriages were real and valid, and they want to be sure that you’re not taking advantage of the system. You’ll want to provide them with things like marriage and divorce certificates, birth certificates of any children, police and autopsy reports if a spouse passed away, and a specific request from your attorney, outlining why you should be granted the waiver.

Ultimately, the decision’s up to whoever is reviewing your case. But this is one of those issues that is tricky enough that you’ll want an attorney on your side. Get an attorney who has experience with K-1 waivers and who knows what the process is like.

About Refugees

What you need to know about refugees in the U.S.:

  1. The process to become a refugee is difficult, and includes detailed background checks. Foreign terrorists have many other, much easier routes if they want to enter the U.S. Refugees typically don’t get to choose which country they get sent to (although those with family in the U.S. will often get sent here). In order to become a refugee, individuals need to prove that they experienced persecution or have a well-founded fear of persecution in their home country. They need to have a financial sponsor within the United States. Individuals who have been convicted of serious crimes or supported terrorism in any manner–and the U.S. does close background checks on each individual who applies for refugee status–cannot become refugees. They must have a medical exam done by a doctor chosen by the United State government. They must take part in a personal interview. Even after applying for refugee status, they must wait, sometimes for years, to enter the United States. The refugee process is much more difficult for refugees entering the U.S. than for refugees entering Europe. Foreign terrorists will have a much easier time entering the U.S. through other methods (illegally, or through a tourist visa, a business visa, or a student visa). Of course, since 9/11 most terrorists in the United States are not foreign at all, but were born and raised here.
  2. Only a certain number of refugees can enter the U.S. each year. For 2015, 70,000 were admitted. The vast majority were NOT from Syria. In contrast, Germany, a country one fourth the size of the U.S., is planning on taking in more than ten times as many refugees in 2015. For a country the size of the U.S., 70,000 is a tiny number.
  3. These refugees are human beings. They include men, women, and children. They have often lost their homes. They would like nothing more than to live in a place where they don’t need to fear for their lives and the lives of their children.
  4. Some famous refugees include Albert Einstein (the greatest scientist of the 20th century), Victor Hugo (Hunchback of Notre Dame and Les Miserables) and Freddie Mercury (Queen). And baby Jesus. On that point, Christians should read Matthew 25, especially verses 34 through 46.
  5. During the early 1940’s, the U.S. turned away great numbers of refugees, particularly Jews who were trying to flee from the Nazis. Of course, we know what happened to many of those people–they were slaughtered by the Nazis. Our refusal to take in refugees now will also lead to many deaths.
  6. ISIS wants us to refuse refugees. They were hoping that their terrorist actions in Paris would lead to exactly the kind of anti-refugee reaction we’re seeing now. They want a war between the Western world and the Middle East, between Christians and Muslims. They want their victims to stay in certain areas of the Middle East, where they can continue to terrorize them. If we refuse refugees, we are doing exactly what the terrorists want us to do.

Fiance Visa or Marriage Visa?

If you are engaged to someone who lives outside of the U.S., there are a couple of pathways you can choose to get them here.

First, a warning. If your Fiance comes here on a tourist visa (or for that matter, any kind of non-marriage or non-fiance visa), and marries you within a month or two of arriving in the U.S., and then stays in the U.S. and applies for a green card, you are probably going to have major issues at the interview. There’s a good chance that your new spouse will be deported and will be unable to return to the U.S. If this is your situation, don’t apply for a green card quite yet. Talk to an immigration attorney, and quickly. You may still have options, but time is of the essence. Don’t procrastinate this.

So, assuming you’re not married yet, and your fiance is living outside of the U.S., what are your options?

  1. K1 Visa (Fiance Visa): You apply for this, it’s granted, your fiance comes to the U.S., and you get married within 90 days. Once you’re married your fiance can–and should–apply for a green card. This is probably the fastest route to getting your fiance to the U.S., but it still takes a long time (quite possibly nine months or so).
  2. K3 Visa (Marriage Visa): You marry outside of the U.S., and then apply for this. This is more complicated, more expensive, and typically takes even longer than a K1 Visa. I very rarely recommend this path.
  3. Just the Green Card: You marry outside the U.S. Once married, you apply for a green card. This typically takes longer than a K1 visa, and the two of you may have to be separated for much of the beginning of your marriage. Your spouse will typically not be able to enter the U.S. until the green card is granted.

I typically recommend the fiance visa. It’s quicker, and you don’t have to worry about a long separation after you’re married. But the best choice for you all depends on your circumstances. This is a tricky area, and a lot of people get in serious trouble here because they don’t understand the complex law. Please don’t take chances here. Speak with an immigration attorney to figure out how to move forward.

Democrat Presidential Candidates and their Stance on Immigration

There are just a handful of candidates running for president from the Democrats. While there’s every chance that another major candidate might jump in, right now the only two actual candidates who are polling above 2% or so are Hillary Clinton and Bernie Sanders.

  1. Hillary Clinton supports a pathway to citizenship for undocumented immigrants. This sets her very much apart from all of the Republican candidates (although several of the more moderate Republican candidates favor a pathway to legalization, none have stated publicly that they favor a pathway to citizenship). However, her immigration stance hasn’t always been so immigrant-friendly. It’s not clear that immigration issues are a priority for her.
  2. Bernie Sanders also supports a pathway to citizenship. However, he’s against expanding the number of temporary work permits, perhaps due to the fact that employers often exploit temporary workers.

Both major Democrat nominees are in favor of a pathway to citizenship. Of course, the question then becomes–what kind of a priority is this for them, and would they be able to convince Congress to move forward on the issue. If any other major candidates emerge–Republican, Democrat, or Independent–I’ll review their stances on immigration here.

Republican Presidential Candidates and their Stance on Immigration

There are currently 17 (yes, 17) people seriously campaigning to be the Republican nominee for president. There are also a handful of other individuals currently running for president, including Hillary Clinton and Bernie Sanders. One of the big issues right now–quiet possibly the biggest issue–is immigration. Below, the stances of the various Republicans:

  1. The obvious starting point here is Donald Trump, who somehow is leading the Republican polls. His stance is, to put it lightly, extreme. He wants to change the Constitution in order to make it so people who are born in the U.S. don’t automatically become U.S. citizens (although he’s gotten some very bad legal advice and apparently believes he can make this change without actually changing the Constitution), he wants to build a wall (not just a fence) between the U.S. and Mexico (and somehow get Mexico to pay for it) and he wants to deport every undocumented immigrant. As far as legal immigration, Trump also wants to put a stop to much of that.
  2. Ted Cruz also does fairly well among Republicans, and he’s looking more and more like Donald Trump’s sidekick (probably hoping to pick up Trump’s voters once Trump drops out of the race). His position pretty much matches Trump’s, except that Ted Cruz has historically wanted to increase legal immigration.
  3. Rick Santorum wants to decrease legal immigration.
  4. Scott Walker wants to reduce legal immigration and change the Constitution so that children who are born in the U.S. don’t automatically become U.S. citizens.
  5. Ben Carson wants to send drones out to the U.S./Mexican border to patrol; he also wants to seal off ALL borders of the U.S. (the cost of which would be extraordinarily high) and he wants to repeal the 14th Amendment of the Constitution so that children born in the U.S. aren’t necessarily U.S. citizens.
  6. Chris Christie previously supported a pathway to citizenship, but has since changed his tune and now wants to revoke President Obama’s deferred status plan (which doesn’t even go so far as to provide a pathway to citizenship).
  7. Rand Paul wants to “secure the border” before the U.S. does anything else to fix immigration. (A 100% secure border is impossible–there will always be ways through–but insistence on a secure border first means that he’ll never have to deal with reforming any other parts of U.S. immigration policy).
  8. Bobby Jindal wants to “secure the border” before he’ll even discuss his plans for immigration.
  9. Rick Perry wants to secure the border. He’s not talking about other immigration reform until after the border’s secure.
  10. John Kasich wants to secure the border; however, he also wants a pathway to legalization for undocumented immigrants who are already here.
  11. Marco Rubio, who was previously fairly moderate on immigration, has now joined the “secure the border now, and then we’ll deal with other immigration issues later” crowd.
  12. Mike Huckabee wants a more secure border and opposes allowing undocumented immigrants to remain in the U.S. man running for president, is open to undocumented immigrants receiving legal status, but not open to them being able to gain citizenship.
  13. Jeb Bush wants a “pathway to legalization” and wants to continue the constitutionally-supported tradition of granting citizenship to children born in the U.S.
  14. Carly Fiorina wants a pathway to legalization and a secure border.
  15. Jim Gilmore does not support a pathway to citizenship, but he does support allowing undocumented immigrants to stay and work in the U.S.
  16. George Pataki, one of the least recognizable of the 17 Republican candidates, wants to allow undocumented immigrants without criminal records to gain legal residency by performing 200 hours of community service.
  17. Lindsey Graham wants Republicans and Democrats to work together to reform immigration. He also wants to ensure that families of undocumented immigrants are able to stay together.

In summary, we have three camps here. The first–Donald Trump and those who want to be Donald Trump (including Ted Cruz, Rick Santorum, Scott Walker, Ben Carson, and, to a lesser extent, Chris Christie) are pretty extreme on their approach to immigration. Most of them want to change the Constitution so that children born to immigrants don’t become U.S. citizens, and in some cases they want to decrease legal immigration.

The second camp wants to “secure the border” and remains pretty quiet about any other immigration issues. This camp is afraid to take a stance one way or another on immigration reform. “Secure the border first and then we’ll deal with other reform” indicates the speaker doesn’t have much of a backbone on the issue, and is afraid to take a stance at this time. This camp includes Bobby Jindal, Rick Perry, and Marco Rubio.

The third camp is more moderate. They would like undocumented immigrants to have a way to legally remain and work in the U.S. This includes Mike Huckabee, Jeb Bush, Carly Fiorina, Jim Gilmore, George Pataki, and Lindsey Graham.

If immigration issues are important to you, you should vote accordingly.

Coming up, I’ll discuss non-Republican candidates and their views on immigration.