Monthly Archives: June 2016

What Comes Next After Supreme Court Ties on US Versus Texas

The Supreme Court ruled this week 4-4 on the controversial case of U.S. v. Texas, the case looking at President Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and the expansion of the 2012 Deferred Action for Childhood Arrivals (DACA) program, which would affect millions of undocumented immigrants. The tie, the result of the death of conservative Justice Antonin Scalia in February (who almost certainly would have voted to overturn the programs), means that the lower appeals court preliminary injunction will be left standing.

The preliminary injunction entered by the 5th circuit court restrained the executive branch from proceeding with DAPA (DAPA would allow some immigrants with children who are American citizens or lawful permanent residents to apply for deferred action, which would give them three year work permits and exemption from deportation for that time) and the expansion of DACA (The expansion would eliminate the upper age cap of 31 for DACA and expand two year renewable work permits and exemptions from deportation rather to three years). Because the Obama administration only appealed from the injunction itself, not a final judgment, the underlying case is still proceeding forward. The Supreme Court’s tied decision effectively just continues to keep the administration from implementing the programs until the lower federal court has ruled on the merits.

The case does not look great for the Obama administration at this point. Preliminary injunctions require the plaintiff (in this case, the 26 states challenging Obama’s action under the “Take Care” clause of the Constitution, immigration laws, and the Administrative Procedure Act) to show “a substantial likelihood of success on the merits.” Because the plaintiffs won a preliminary injunction, it has already been determined by the federal trial court judge and affirmed by the Fifth Circuit Court of Appeals that Obama’s action was probably not within its legal discretion under immigration law.

However, because the Supreme Court’s decision was a split 4-4 decision, only the fifth circuit’s preliminary injunction has been upheld, with no binding national precedent on lower courts outside the Fifth Circuit. Thus, federal courts outside of the Fifth Circuit (made up of Louisiana, Mississippi, and Texas) could potentially rule differently from the Fifth Circuit Court.

The situation is complicated by the fact that even if courts ultimately do rule in President Obama’s favor and uphold the DAPA program and the expansion of the DACA program, it is extremely unlikely that the changes will be implemented while Obama is still in office. It’s also unlikely that Congress will take any action on the issue prior to the November election. This issue will fall in the lap of the next President and the next Congress.

Those same players will have to address the still unfilled seat on the Supreme Court; the Republican majority in the U.S. Senate still refuses to hold hearings for Obama’s nominee for the seat, Merrick Garland. Though we can’t know for sure how either Scalia or Garland would have decided on U.S. v. Texas, it’s probable that the Senate’s stalemate directly impacted the decision here, affecting an estimated 4.7 million immigrants in the United States unlawfully.

Options for UK and British Citizens to Immigrate to the United States after Brexit

On June 23, 2016, citizens of the United Kingdom held a referendum to determine whether the UK should leave the European Union – known as the Brexit referendum. White there were fierce advocates for both sides, the world expected that voters would choose to stay in the EU. However, the unexpected happened and the majority of voters decided that they wanted to leave the EU. This has no doubt caused havoc on UK’s economy and the world markets – even prompting many to ask for a “redo” of the referendum.  In light of this, Maximilian Law Inc. has gotten many inquiries from UK citizens on their options to immigrate to the United States.  Fortunately, citizens of the United Kingdom have several options on moving to the United States:

 

  • Marriage-Based Green Cards:  If you are UK citizen married to a U.S. Citizen, your spouse can sponsor you for a Green Card
  • K-1 Fiancé Visa:  If you are a UK citizen engaged to a U.S. Citizen, your fiancé can sponsor you for a K-1 visa that would allow you to travel to the United States to get married and apply for a green card
  • Family-Based Green Cards:  If you have a U.S. Citizen sibling, parent or child, you can be sponsored for a green card
  • LGBT & Same Sex Marriage Green Cards:  U.S. citizens in LGBT or same sex marriages can sponsor their UK spouses for green cards or a K-1 visa
  • L-1 Intracompany Transfer Visa:  UK citizens working for companies that have a related office in the U.S. can transfer on an L-1 visa
  • E-2 Treaty Investor Visa:  UK citizens can start or invest in a U.S. business for as little as $50,000 and qualify for an E-2 investor visa
  • Investor EB-5 Green Card:  If you invest $500,000 or $1 million into a U.S. business, you could qualify for an EB-5 green card
  • Work Visas:  There are several work visa categories available, including the H-1B, O-1, or L-1 visa
  • School:  If you are accepted into a U.S. School, you may be able to get an F-1 student visa

If you are a citizen of the UK looking to immigrate to the United States, the immigration law firm of Maximilian Law Inc. can evaluate your options.

A Look Back at the Recent History of Immigration Laws

The United States recently celebrated the 92nd anniversary of an infamous and controversial Immigration law, which thankfully, has since been replaced with an improved system. Although Immigration Laws in this country can be quite complicated and difficult to navigate at times, it is good to look back and remember how far our country has come from the backward and blatantly discriminatory immigration laws of the past.

The Comprehensive Immigration Act, also known as the Johnson-Reed Act, was passed into law on May 26, 1924. The Act limited the number of immigrants allowed into the United States by putting into place strict quotas restricting the number of people from each country allowed to obtain immigration visas. No immigrants from Asia were allowed to receive visas or enter the United States under a provision that excluded from entry any “alien” who was ineligible for citizenship due to their nationality or race.

The immigration quotas set in place allowed for immigration visas for two percent of the total number of each nationality of people in the United States as of the 1890 national census. Basing quotas on the 1890 census in particular meant that fewer southern and eastern Europeans such as Italians or Bulgarians were allowed into the U.S. than would have been if a more recent census had been used as a baseline. So where an average of 200,000 Italians had entered the U.S. during each year from 1900-1910, the annual quota for Italians was set at 3,845. 51,227 immigrants were allowed from Germany but only 131 from Spain and 100 from Greece.

This horrific law was the result of many factors. World War I had raised national security concerns in the country. Congress had passed a restrictive immigration law in 1917 that increased the tax paid upon arrival by new immigrants (almost all immigrants had to pay an $8 tax, which equals about $163 today) and required immigrants over 16 years to pass a literacy test (in which immigrants had to show basic reading comprehension in any language), among other things. The Act completely excluded any immigrants born in the “Asiatic Barred Zone,” defined as “any country not owned by the U.S. adjacent to the continent of Asia.” Those who were able to enter the country were almost all required to pay an $8 tax (equal to over $163 today). The Quota Act of 1921 limited immigrants from each nation to three percent of that nationality’s makeup in the U.S. population as of the 1910 census.

Such laws were also influenced by the rise of the eugenics movement, which tried to improve the genetic quality of the human population by promoting genetic superiority of white Europeans.

The 1927 law reflected this viewpoint in its restriction on the immigration of “undesirables,” including “idiots, imbeciles, feeble-minded persons, epileptics, insane persons…paupers; professional beggars…contract laborers” among others.

In 1965, the Immigration and Nationality Act of 1965 (also known as the Hart-Celler Act) got rid of the Immigration Law of 1924 and replaced the national origins quota system with the system we have today, which looks at immigrants’ skills and their family relationships with U.S. citizens or residents instead. The Act also allowed people to migrate from Asia to the United States.

The immigration lawyers at Maximilian Law are here to assist you with your immigration issues. Call us today for a free consultation.

What Power Does the President Actually Have Over Immigration

Donald Trump, the presumptive Presidential nominee for the Republican Party has called for a ban on certain immigrants entering into the country on several occasions. Trump first proposed a temporary ban on Muslims entering the country after the terrorist attack in San Bernadino, California. More recently, he has stated that he wishes to restrict immigration from parts of the world with ties to terrorism. He claimed to have the power to do this by stating in a June 13, 2016 speech:

 

“The immigration laws of the United States give the president powers to suspend entry into the country of any class of persons. Now, any class — it really is determined and to be determined by the president for the interests of the United States. And it’s as he or she deems appropriate.”

Apart from the obvious discrimination, falsehoods, and logical problems inherent with these proposals, if Trump were elected president, what could he actually do?

 

Any president has the authority to suspend the entry of “any aliens or of any class of aliens into the United States [who] would be detrimental to the interests of the United States” under Title 8, Section 1182 of the U.S. Code, part of the Immigration and Nationality Act of 1952. This suspension of entry can remain in place as long as the President considers it necessary.

 

This is a pretty broad power. The Supreme Court ruled in the 2015 case of Kerry v. Din that an immigrant can be denied a visa on national security grounds without the government giving a specific reason. It was likely originally written in 1952 with fear of communists in mind and has since been used to ban the entry of any alien involved in war crimes.

 

Obama has been claiming this broad authority over immigration to choose to not deport large groups of people. The Supreme Court is currently weighing the merits of U.S. v. Texas, a case regarding President Barack Obama’s use of executive action to create the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and to expand the 2012 Deferred Action for Childhood Arrivals (DACA) program. Though the case is looking at several issues, one of them is whether Obama’s action violates the Take Care Clause (Article II, section 3) of the Constitution, which states, “[The President] shall take Care that the Laws be

faithfully executed.”

 

Under his plan, Trump would essentially use this same broad presidential power Obama claims to limit immigration rather than expand it. As of yet though, it’s unclear whether a potential President Trump could do this, as the power has never been applied as broadly as Trump would like to. The Supreme Court ruling may shed some light on the issue. The ruling is due before the end of June.

 

For what it’s worth, the President at the time of the passage of the law granting this presidential power in 1952 would certainly have had an issue with Trump’s proposals and plan. At the time,

President Harry Truman raised serious concerns about several portions of the law, calling it discriminatory and problematic. He actually vetoed the Immigration and Nationality Act based partially on these concerns, though Congress overrode his veto.

 

Truman had some choice words for the discriminatory quotas set out in the law at the time. One can imagine he would say the same thing about Trump’s proposal.

 

“The idea behind this discriminatory policy was, to put it baldly, that Americans with English or Irish names were better people and better citizens than Americans with Italian or Greek or Polish names. . . Such a concept is utterly unworthy of our traditions and our ideals. It violates the great political doctrine of the Declaration of Independence that ‘all men are created equal.’ It denies the humanitarian creed inscribed beneath the Statue of Liberty proclaiming to all nations, ‘Give me your tired, your poor, your huddled masses yearning to breathe free.’”

For assistance with all of your legal immigration needs, contact Maximilian Law.

Executive Orders Under Review

In 2012 immigrants who arrived in the United States as children found relief from deportation under the new guidelines for the Deferred Action for Childhood Arrivals (DACA) Program.  The 2012 guidelines came in the form of an Executive Order by President Obama.  Similarly, he implemented the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program in 2014.  According to United States Immigration and Services (USCIS) approximately 4.9 million individuals are estimated to be eligible for the two programs.  However, those individuals are currently unable to apply for either program.  According to The Hill the programs are on hold, pursuant to an injunction, since a federal judge in texas ruled some states may possess grounds to challenge the programs.  Now the issue is poised to be heard by the United States Supreme Court.  The Post and Courier reports that South Carolina is one of twenty-six states challenging the executive orders as unconstitutional.

 

Could I use DACA or DAPA?

There is a strong chance you may be one of the 4.9 million individuals who could utilize the programs implemented by president Obama.  The USCIS on their website lists the conditions necessary to qualify for either program.  What DACA does is grant individuals deferred action from deportation and an employment authorization period.  A person can qualify for DACA if:

 

  1. They entered the U.S. before turning 16.
  2. They have lived in the U.S. continuously since January 1, 2010 (previously it was June 15, 2007).
  3. Are of any age.
  4. Meet all other DACA guidelines.

 

You may also qualify for DAPA. The point of DAPA is to grant deferred action for parents of U.S. citizens or lawful permanent residents.  Individuals may qualify for DAPA if:

 

  1. They have lived in the U.S. continuously since January 1, 2010.
  2. As of November 20, 2014, they had a son or daughter that is a U.S. citizen or lawful permanent resident.
  3. They are not categorized as an enforcement priority for removal (qualifications for enforcement priorities are listed here).

 

Current Status of DACA and DAPA

According to the USCIS update, as of the injunction by the federal judge, applications for DAPA and the expanded DACA are suspended.  However, individuals applying for DACA under the previous regulations, before the 2012 order came into being, may still apply. According to the National Immigration Law Center, these qualifications include being under the age of sixteen before entering the U.S., living in the U.S. continuously since June 15, 2007, and various other regulations (including, but not limited to possessing a high school diploma or GED).

 

Implications of a Supreme Court Decision

If you do not qualify for deferred action under the previous iteration of DACA, then the upcoming Supreme Court Decision may prove critical to your ability to stay in the U.S. if you are currently here without legal status.  If the Court finds in favor of the executive orders, you may be able to begin your application, but until then all applications under the new orders are suspended.  If you are in the country illegally it is imperative that you seek the assistance of a licensed immigration attorney to help you gain some sort of legal standing before removal proceedings are initiated. Even if you are already in removal proceedings an immigration attorney may still be able to help you.

Using K1 Fiance Visas to Help You and Your Loved Ones

K-1 visas, or fiancé visas as they are frequently referred to, are one of the tools utilized to bring loved ones into the country if they are not already related to you.  The purpose of  K-1 visas, according to United States Citizenship and Immigration Services (USCIS) is “to bring a foreign national fiancé(s) living abroad to the United States to marry.” Many citizens use K-1 visas to bring their loved ones into this country, but to do so they must meet certain eligibility requirements. A licensed immigration attorney can better help you understand whether you need a K-1 visa.

 

If you want to bring your fiancé to the U.S. on a K-1 visa then you must be able to prove:

 

  1. You are a U.S. citizen.
  2. You intend to marry your fiancé within 90 days of entering the U.S.
  3. Both you and your fiancé are able to legally marry (i.e. any previous marriages are legally terminated).
  4. You and your fiancé met at least once within two years of filing your visa petition.

 

As to the fourth element, there are some exceptions which may apply, but you need to consult with a licensed immigration attorney to know whether or not they do.

 

Fiancé  Visa Fraud

Fiancé  visas are not the most commonly granted visa, but they are not uncommon either. According to the U.S. Department of State, almost 36,000 K-1 visas were issued in 2014 alone.  In fact fiancé visas are even one of the main components of the popular TLC show 90 Day Fiance. The show is named after the 90 day window couples must get married in after they are united in the U.S. Despite the popularity of the fiancé visa, it is under scrutiny.  CBS News reported the federal government was investigating the K-1 visa program after it was discovered one of the shooters in the San Bernardino incident entered this country on a K-1 visa.  Although the shooter, Tashfeen Malik, was vetted by five different government agencies she still succeeded in getting a K-1 visa.

 

The Current State of Fiancé Visas

The K-1 visa application program is still the same as it was before the San Bernardino shootings.  However, that may change in the near future.  CNN Politics noted that President Obama called for a review of K-1 visa adjudications, a review that is currently underway. As TIME noted in a recent article, there is no strategy to prevent all anti-American sentiment from reaching the U.S., but incidents like San Bernardino help to bring to light the possible issues with the current screening system.  Since this is an election year it is likely that multiple visa programs will come under increased scrutiny as pundits compete for political favor.

 

What to do if I need a Fiance Visa?

If you need are in need of a K-1 visa you should contact a licensed immigration attorney as soon as possible.  Only an immigration attorney will know how to properly file your application for the visa, as well as the hurdles you will face as you file your petition. The process can be very extensive and may take time. A licensed immigration attorney will be able to assist you with the timing and filing unique to the K-1 visa.

Can a Green Card Holder Use State-Legal Medical Marijuana

Over the last decade or so, twenty five states and Washington, D.C. have legalized medical marijuana (also known as cannabis) in some capacity. This includes several of the states with some of the largest immigration populations, including California, New York, and Texas. Four states and D.C. have even legalized the recreational use of marijuana. However, even if a permanent resident can buy legal marijuana in his or her state, it may not be a wise idea due to the drug’s shaky legal status.

 

Immigration is governed by federal law, where it is administered by the USCIS (United States Citizenship and Immigration Services). The federal government officially outlaws all use of marijuana across the United States. Under the Controlled Substance Act of 1970, the U.S. Drug Enforcement Administration ranks controlled substances under five schedules. Schedule I is considered to be the most dangerous category with a “potentially severe psychological or physical dependence.” These drugs supposedly have “no accepted medical use, and a high potential for abuse.” Schedule I includes marijuana, heroin, Lysergic Acid Diethylamide (LSD), ecstasy, methaqualone, and peyote.

 

However, with the population’s growing support for medical marijuana, the federal government has taken small steps toward loosening its stance on marijuana. The U.S. Department of Justice stated in a 2013 memo that it would focus its efforts combatting marijuana use where certain enforcement priorities are implicated. These priorities included preventing the distribution of marijuana to minors, preventing revenue from the sale of marijuana from going to criminal enterprises, and preventing drugged driving. This memo has widely been interpreted as the federal government allowing the states to proceed with legal medical marijuana regimes, without interference as long as the DOJ’s priorities are taken into consideration. Congress also has passed amendments to its annual spending bills preventing the Justice Department from using federal funds to prevent states from implementing their own medical marijuana laws.

 

Despite these steps forward however, green card or visa holders need to be very careful when it comes to medical marijuana. The DOJ guidelines are just that—guidelines—and there’s no guarantee that they’ll be applied in every case. In addition, federal policy toward medical marijuana could easily change in the future if a new anti-marijuana President or Congress comes into power. Until marijuana is officially re-scheduled or de-scheduled, there is always a chance that a person using the drug properly under state law could still be prosecuted for violating federal law.

 

Green card holders convicted of a violation of a federal law addressing marijuana qualify for deportation under Section 237 of the Immigration and Nationality Act, unless it was a first conviction for possession 30 grams or less of marijuana for your own, personal use. And even though possession of less than 30 grams does not constitute grounds for deportation, it can be used to keep you from entering the U.S. again the next time you leave the country. The law also states that a permanent resident can be deported if they are a “drug abuser or addict.”

Due to the uncertainty of federal policies toward marijuana and the high stakes involved, it may be safest for green card holders to err on the side of caution and avoid cannabis all together, whether medical or recreational, until they officially obtain their U.S. Citizenship.

Green Card Holders Can be Deported for Committing Minor Offenses Even After Serving Their Time

Many green card holders do not realize that under U.S. law, even after they serve their time and punishment for felony offenses committed, they could be arrested and deported from the country.

 

The applicable law, the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, among other things, expanded classes of deportable aliens to include permanent residents who had committed minor offenses, including: any conviction for violation of a controlled substance law other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, “drug abusers and addicts”, and “Any alien who, within five years after the date of entry; has become a public charge from causes not affirmatively shown to have arisen since entry.” Previously, immediate deportation was triggered only for offenses that could lead to five years or more in jail.

 

IIRIRA applied retroactively to all those convicted of deportable offenses at the time of its passing. However, in the 2001 case of Immigration and Naturalization Service v. St. Cyr, the U.S. Supreme Court struck down the law’s retroactive applicability to those who pled guilty to a crime if they would not have been deportable at the time that they pled guilty. The Court concluded that the law did not clearly state that the law was meant to apply retrospectively.

 

The wider reach of IIRIRA can be seen in the case of Mickel Mesa, recently chronicled in the Voice of America.  Mickel, who has lived in the United States for the past twenty years, was arrested by Customs and Border Protection in late 2013 after a visit to the Dominican Republic for a guilty plea to felony possession of marijuana with intent to distribute in 2006. He had received a sentence of community service and five years of probation, both of which were completed before the trip. After being held in a correctional facility, he was deported to the Dominican Republic in January 2015, where he has remained since.

 

One of the best ways to avoid such a situation is to apply for citizenship as soon as possible.

A Green Card can generally be acquired through an immigrant’s connections to family members that are U.S. Citizens, through a job offer or investment, as a refugee, or through the Diversity Immigrant Visa Program (often referred to as the “Green Card Lottery”). A permanent resident (green card holder) has the right to live permanently in the United States as long as he/she does not commit a deportable offense, legally work in the United States, and be protected by the laws of the states.

 

A permanent resident can apply to become a citizen through the naturalization process if they meet certain specific requirements after three years in the country in some cases, or for five years in the country in others. It costs about $680, which includes a $595 application fee and a $85 biometric services fee. As this process can become quite complicated, it’s good to have an experienced immigration attorney on your side to assist you.

 

A Look Back at the Recent History of Immigration Laws

 

The United States recently celebrated the 92nd anniversary of an infamous and controversial Immigration law, which thankfully, has since been replaced with an improved system. Although Immigration Laws in this country can be quite complicated and difficult to navigate at times, it’s good to look back and remember how far our country has come from the backward and blatantly discriminatory immigration laws of the past.

 

The Comprehensive Immigration Act, also known as the Johnson-Reed Act, was passed into law on May 26, 1924. The Act limited the number of immigrants allowed into the United States by putting into place strict quotas restricting the number of people from each country allowed to obtain immigration visas. No immigrants from Asia were allowed to receive visas or enter the United States under a provision that excluded from entry any “alien” who was ineligible for citizenship due to their nationality or race.

 

The immigration quotas set in place allowed for immigration visas for two percent of the total number of each nationality of people in the United States as of the 1890 national census. Basing quotas on the 1890 census in particular meant that fewer southern and eastern Europeans such as Italians or Bulgarians were allowed into the U.S. than would have been if a more recent census had been used as a baseline. So where an average of 200,000 Italians had entered the U.S. during each year from 1900-1910, the annual quota for Italians was set at 3,845. 51,227 immigrants were allowed from Germany but only 131 from Spain and 100 from Greece.

 

This horrific law was the result of many factors. World War I had raised national security concerns in the country. Congress had passed a restrictive immigration law in 1917 that increased the tax paid upon arrival by new immigrants (almost all immigrants had to pay an $8 tax, which equals about $163 today) and required immigrants over 16 years to pass a literacy test (in which immigrants had to show basic reading comprehension in any language), among other things. The Act completely excluded any immigrants born in the “Asiatic Barred Zone,” defined as “any country not owned by the U.S. adjacent to the continent of Asia.” Those who were able to enter the country were almost all required to pay an $8 tax (equal to over $163 today).  The Quota Act of 1921 limited immigrants from each nation to three percent of that nationality’s makeup in the U.S. population as of the 1910 census.

 

Such laws were also influenced by the rise of the eugenics movement, which tried to improve the genetic quality of the human population by promoting genetic superiority of white Europeans.

 

The 1927 law reflected this viewpoint in its restriction on the immigration of “undesirables,” including “idiots, imbeciles, feeble-minded persons, epileptics, insane persons…paupers; professional beggars…contract laborers” among others.

 

In 1965, the Immigration and Nationality Act of 1965 (also known as the Hart-Celler Act) got rid of the Immigration Law of 1924 and replaced the national origins quota system with the system we have today, which looks at immigrants’ skills and their family relationships with U.S. citizens or residents instead. The Act also allowed people to migrate from Asia to the United States.

Parole in Place for Immediate Relatives of Active Duty Military US Citizens

 

Thousands of U.S. citizens serving active duty in the Armed Forces have spouses, children or parents who are undocumented. The USCIS and the Department of Defense recognized that their family’s immigration status may result in stress and anxiety  either in active service or as veterans.

In response, Congress, the Secretary of Homeland Security, and the Department of Defense identified tools that would help military dependents secure permanent immigration status as soon as possible.  This included granting parole to certain family members which would allow them to adjust their status within the United States without being subject to a ban – resulting in prolonged periods of family separation.

As such, INA § 212(d)(5)(A) grants the Secretary discretion to parole for “urgent humanitarian reasons or significant public benefit” an otherwise undocumented and inadmissible spouse, parent, or child under 21, who wishes to apply for lawful status to the United States.  This is known as Parole in Place.  Stated simply, undocumented spouses, parents, and children of U.S. citizens who are actively serving may be granted parole – thus effectively changing their status from “unlawful” to “lawful.”

If a spouse, parent, or child of a military-serving U.S. citizen is granted parole, the U.S. citizen can then file a petition to sponsor the dependent for a green card as immediate relatives.  Parole only applies to the dependent’s unlawful status in the United States.  It does not negate any other grounds of inadmissibility, such as criminal convictions or medical conditions.

If you are the spouse, parent or child of a U.S. citizen active military service member, contact the immigration law firm of Maximilian Law Inc. to see if you are eligible for Parole in Place.