Investor Visa Lawyer Blog

In May 2012, Florida State officials began purging state voter rolls of nearly 2,700 suspected noncitizens. The U.S. Department of Justice (DOJ) issued an order to the state to stop the voter purge because it violated the Voting Rights Act of 1965 by removing names less than 90 days prior to an election. On June 8, 2012, the American Civil Liberties Union (ACLU), on behalf of Mia Familia Vota Education Fund, filed suit to prevent the Florida voter purge from going forward. Much has been written about this event, including how far back in time the voter purge began. (See for example The Miami Herald's story How Rick Scott's noncitizen voter purge started small and then blew up). This post won't belabor the details, rather it will catch the reader up on current events and outline the rights of immigrants under the National Voter Registration Act.

Fast forward a year. In late April of 2013, Judicial Watch filed a Freedom of Information Act (FOIA) lawsuit against the DOJ to obtain records to determine whether the DOJ collaborated with the ACLU. Let's briefly discuss the players.

Judicial Watch

Judicial Watch is "a conservative, non-partisan educational foundation" that "uses the open records or freedom of information laws and other tools to investigate and uncover misconduct by government officials." Judicial Watch got involved in Florida voter registration rolls when it sent a letter to the State of Florida in February 2012 that the Florida voter registration lists were not properly maintained in violation of Section 8 of the National Voter Registration Act (NVRA).

Mi Familia Vota

Mi Familia Vota is a national organization working to unite the Latino Community and its allies to ensure social and economic justice through increased civic participation. Mi Familia Vota began in California and came out of the late-1990s movement to organize Californian latinos to seek citizenship, register to vote, and be mobilized in political campaigns. Mi Familia Vota has offices in Arizona, California, Florida, Nevada, and Texas.

Mi Familia Vota, through partnership with the American Civil Liberties Union (ACLU) filed the May 2012 suit against Florida's voter purge in the U.S. District Court for the Middle District of Florida. The DOJ filed its own suit four days later. "Judicial Watch moved to intervene in the case to defend Florida's voter list maintenance efforts."

Section 8 of the National Voter Registration Act (NVRA):

Section 8 requires all states to maintain current voters lists and "remove ineligible persons from the voter rolls by reason of the person's death, or a change in the residence of the registrant outside of the jurisdiction, in accordance with procedures set forth in the NVRA." The intention for cleaning up large scale databases to make them current and accurate is an honorable goal, but as discussed on other immigration blog posts recently, sometimes broad brush efforts finds individuals falling through the cracks.

Your Rights

Outside of this current lawsuit and independent of any work done by Florida Mi Familia Vota, what should you know about your rights as a recent immigrant? It is true that we are not in the middle of large, state or nation wide elections; however this is an area of immigration law that continues to evolve and change. The outcome of the FOIA request remains unclear, but it may have implications for future elections. Information about immigration voting rights can be found in a number of places including the NVRA webpage above and other sources such as Immigrant Voting Project.

We are not specifically endorsing or opposing any of the entities identified within this blog. However, it is important to understand that this area of immigration law can be complex. If you feel your immigration status has affected your right to vote, you need to contact an immigration attorney.

Related Links:

May Day Protests are International Issue, With National and Local Meaning

Immigration Policies Case Wide Net, But Have Large Holes

Dancing with ribbons around May Poles and lighting bonfires are ancient traditions to celebrate May Day. But in the late 1800s, May Day was used by worker's movements to strike for better working conditions. On May 1, 1886, worker's groups got together to strike for an 8-hour workday in Chicago. May Day became the international Labor Day in 1891 in Paris. It is common for protests and rallies to be held on May Day around the world. Like Earth Day 1990 - a celebration of the 20th anniversary of the first Earth Day in 1970 - May Day 2012 was intended to once again resurrect an historical event and initiate an annual recognition for a call to action.

May Day 2013
May Day 2013 involved protests in cities across Europe. In Istanbul, Turkey, workers supported International Worker's Day. Workers in Athens, Greece, protested against the Greek austerity measures. Spanish workers in Madrid, Spain, also protested their government's austerity measures. Italy saw protests in Rome, Bologna, and Parma regarding the problems caused by the debt crisis.

Workers in Indonesia, Cambodia, the Philippines, and Bangladesh took to the streets to protect poor working conditions and remember the workers who lost their lives on April 24 when a clothing factory building collapsed. Hong Kong workers were seeking better working conditions and pay raises.

In the United States, there were dozens of May Day protests, including a few large-scale protests in Los Angeles, CA, Manhattan, NY, Chicago, IL, and Seattle, WA. It was the violent clash with police in Seattle that captured national headlines. While workers rights were historically the theme of May Day protests, in the United States, the issues have been tied to the current immigration reform debate between the White House and the U.S. Congress.

Is this cycle forever to be repeated, or is this current effort here to stay?

In 2006-2007, the most recent focus of the U.S. government to take on immigration reform, May Day protests appeared to have lost the national debate to "opponents who flooded congressional offices with phone calls and faxes at the behest of conservative talk-radio hosts" according to an AP article run in the Miami Herald on May 2nd.

Presently, the national debate involves a dialog spanning a range of topics greater than working conditions. Pathway to citizenship is one of many topics currently under debate. Our recent blog posts have captured the status of U.S. immigration reform topics, including where our Florida political representatives stand on the matter. We have been carefully tracking this discussion, including how the final outcome in this national debate will influence immigration law issues, including matters such as status of different visa application processes.

Whether you have a current immigration law issue or one that may become imminent given the outcome of the current national debate on immigration policy, it is important to understand your rights. In addition to conducting your own research on immigration law - such as the information contained within this blog - you should consider the importance of contacting our Miami immigration lawyer.

Related Links:

Immigration Policies Cast Wide Net, But Have Large Loopholes

Temporary Protection Status - Upcoming Timelines

Nation-wide rules on immigration aim to address the needs of the many, even if some fall through the cracks. Take the case in point of a late April 2013 news story. The local CBS news affiliate in Miami brought to our community the story of a couple caught in the cracks of an immigration policy that is now getting some new attention in Congress.

As a child, Paola Arango's family arrived in Miami to escape guerilla violence in Columbia. The Arrango family petitioned for asylum in 1999. Their petition was denied in 2009. Four years ago, just days after getting married to a U.S. citizen, she left the country in response to a deportation order given after her family lost its asylum application. Paola married Bruce Eckel. He petitioned the government for an immigrant visa for Paola in February 2010. The petition was approved in the spring of 2011. But, because Paola had been deported, there was a problem.

Her current deportation status has a 10-year clock on it, but if a different path had been taken, a different result might have occurred. If Paola had violated the deportation order and stayed in the U.S., she could have received legal status under the Deferred Action for Childhood Arrivals program, also known as the DREAM Act. The DREAM Act gives legal status to young people who were brought to the U.S. as children, have lived in the U.S. for 5 years and graduated from a U.S. high school or obtained a GED. These individuals must also attend college or serve in the military for 2 years, as well as pass criminal background checks and demonstrate good moral character before being allowed to apply for U.S. citizenship.

Current efforts in Congress are focusing on addressing the blueprint for immigration reform prepared by the U.S. Senate's "Gang of 8" several months ago. These efforts will allow for faster streamlining of applications, a different set of criteria for demonstrating burdens when applying for waivers, and a new process to reduce the time needed for applications when families are separated because of immigration status.

What is currently in place and available? The U.S. Citizen and Immigration Service (USCIS) agency of the Department of Homeland Security has updated guidance on the Consideration of Deferred Action for Childhood Arrivals Process. In the summer of 2012, the Secretary of Homeland Security announced the intent of the program, stating on their website that:

"... certain people who came to the United States as children and meet several key guidelines may request consideration of deferred action for a period of two years, subject to renewal, and would then be eligible for work authorization. Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. Deferred action does not provide an individual with lawful status."

The website for the Deferred Application process outlines the steps and criteria for eligibility, amounting to six pages if printed out, with another 12 pages of frequently asked questions and answers. If you have a similar immigration scenario, consider talking to an immigration attorney.

Related Links:

E-Verify and the Future of Immigration Law

The Political Debates Over Immigration policy

Temporary Protection Status (TPS) is a special designation given by the U.S. Department of Homeland Security under the authority of the Immigration and Nationality Act to a county with living conditions determined to be unsafe for nationals to return. A specific registration process has to be followed to earn TPS status. TPS status is considered a mechanism to slow down enforced departure. TPS enrollees are not allowed direct admission to the United States. Further, when their parole term expires, they are required to leave the country if no other eligibility mechanism is available.

As of this blog post, there are eight countries that fall into this category. There are certain temporary conditions that the Secretary of Homeland Security looks at to determine if a country should be eligible for TPS. These conditions include "ongoing armed conflict, an environmental disaster or an epidemic, or other extraordinary and temporary conditions." For example, Syria has been designated TPS due to the current armed conflict there. The country closest to South Florida on this list is Haiti. As of the 2010 census, South Florida hosts more than a third of a million Haitians.

The devastating earthquake in Haiti in January 2010 - leaving more than 1 million people homeless - triggered an executive order to grant temporary protection status to Haitians suffering from the effects of the earthquake. Since then, the U.S. government has allowed this status to be extended through July 2014.

In addition to the July 2014 milestone, there is yet another TSP thread worth following. In January, 2013, The Miami Herald ran an editorial about the need to develop a Haitian family reunification program - The Herald was one of many sources calling for such consideration. In March 2013, Florida State Senator Geraldine Thompson introduced a bill (SB 1478) designed to ask the U.S. Department of Homeland Security to create a "Haitian Family Reunification Parole Program". The intent is "to hasten the reunification of families and discourage Haitian citizens from resorting to illegal and dangerous means of migration into the United States".

This bill is patterned after the existing Cuban Family Reunification Parole Program and according to the original bill language has earned the support of the United States Conference of Mayors, the United States House of Representatives Committee on Foreign Affairs and six United States Senators. On April 24, 2013, the Florida Senate passed the bill and it was moved to the Florida House for consideration. Proponents intend to have this bill passed before the July 2014 expiration of TSP and served up to the President of the United States, the leaders in Congress, and the U.S. Secretary for Homeland Security. This bill mirrors one currently in the New York State legislature. New York is the state with the second largest population of Haitians in the country after Florida.

It is important to fully understand both the application process and the boundaries of TPS status relative to other immigration status categories. An immigration attorney can help you navigate through this process.

Almost 125 years ago, immigration documents were shown at the entrance of Ellis Island, the countries primary federal immigration stop. There, hand-written ledgers recorded new immigrants entering the United States. Today, Ellis Island is managed by the National Park Service, but remains closed with no current plans to reopen following the damage from Hurricane Sandy in October, 2012.

Today, documentation is a mixture of paper and digital records and at the heart of current immigration worker status is the program "E-Verify". E-Verify is an internet-based system run by the U.S. Citizenship and Immigration Services (USCIS, an arm of the U.S. Department of Homeland Security.) The concept is a simple one, a prospective employee fills out an Employment Eligibility Form and the E-Verify database is used to check applicants against existing databases from the U.S. Department of Homeland Security and the Social Security Administration to confirm eligibility. How accurate E-Verify currently is and the stories that are told about people that fall through the cracks are of great discussion among those on both sides of the "E-Verify works" debate. The American Public Media's Marketplace Business published an article suggests that the error rate for E-Verify is now around 2%.

Upcoming changes to the process
In early May 2013, the USCIS will require employers to utilize its most recent updates to the Employee Eligibility Verification Form (the I-9) stating on their website, "Federal law requires that every employer and agricultural recruiter/referrer-for-a-fee hiring, or recruiting/referring for a fee, an individual for employment in the United States complete a Form I-9, Employment Eligibility Verification."

A more important change is the likelihood of significant increases in the number of employers that utilize E-Verify program. According to the Marketplace Business article, the current immigration reform debate pending in Congress includes a heavy focus on the expansion of the E-Verify program, potentially making the program mandatory. This could increase the number of employers using E-Verify from 350,000 to eight million if the program became mandatory.

What are your rights with E-Verify?
USCIS has a range of information about the 1986 Immigration Reform and Control Act and how presently the federal government is involved with verifying the eligibility of potential employees to work in the United States. There are two scenarios when an individual's information is reviewed with E-Verify. Either the system says a person is authorized for employment or it presents a "tentative nonconfirmation." If an individual is authorized to work, then the employee continues work. If the result is "tentative nonconfirmation", then the employer is required to notify the employee and give the employee an opportunity to correct any records that appear to be in error. An employer can terminate employment if the employee does not try to correct their records or the employer receives a final nonconfirmation meaning the employee cannot work in the U.S. Individuals over the age of 16 can check their E-Verify records prior to applying for jobs at the E-Verify Self Check website.

It remains unclear where the current national debate on immigration reform will land. Just as the information on the USCIS website remains current, we too will follow and present the status of changes to the I-9 form and the fate of E-Verify. If you have any questions about I-9, and what your rights may be under the current E-Verify program, please contact a Miami immigration attorney.

Last week, the Associated Press (AP) - a world-leading authoritative news source - decided it was "racially charged" to continue to use the phrase "illegal immigrants". What happened, what does it mean, and does a potential change in public dialog translate into changes in public policy and ultimately immigration law?

What specifically happened was the AP Style Guide - one of many well-received style guides for writing - chose to make the editorial change, based upon the following logic:

"And that discussion about labeling people, instead of behavior, led us back to 'illegal immigrant' again.
We concluded that to be consistent, we needed to change our guidance.
So we have.
Is this the best way to describe someone in a country without permission? We believe that it is for now. We also believe more evolution is likely down the road."

The Miami Herald was one of many news sources that carried the story - including editorials - that recognized that it was time to change the language in reporting because it was "unfair and demeaning" and that "illegal" should apply to actions and not people.

What was the result? First, if one does an internet search for the phrase "news, illegal immigrant, AP", it will bring up more than 50,000 hits in less than one second - many of these hits are tied to the decision by the Associated Press last week to drop the "i-word". Like the current debate on immigration reform, there is the full range of stories out there about whether this was a good decision or not.

Do words mean anything about government policy? Potentially.

It is unclear what the current dialog means about potential changes in policies, and ultimately laws, but we do have some background information to consider. There is a specific field of study called "language planning". While you may not have heard about language planning as a discipline, you may have heard one of the most famous examples of language planning related to immigration law: the English-only movement.

While the English-only movement has roots more than 200 years old, it is a local issue for us in Miami-Dade County. In 1993, the county commission repealed an anti-bilingual "English-only" ordinance that was passed in 1980. Thirty-three states in the U.S. have English as first language laws (including Florida), although the Federal government does not specify a specific language.

What does this mean for today and the future?

Honestly, it is not clear yet whether this editorial change in dropping the "i-word" will translate into a change in public policy or laws in the near future, or some point down the road.

In our community, it took the county commission more than 10 years to eliminate the "English-only" ordinance. But, it is important to think about the potential short-term reactions in our internet-based, 24-hour news cycle world. For example, the U.S. Equal Employment Opportunity Commission has documented an increase in employment discrimination based just on accent discrimination over the past few years.

So, the drop of the use of the word "illegal" may result in a triggering of a discussion of language planning and the English-only movement, and thus a discussion on language discrimination, which would be a real-time, legal matter needing attention.

Media reports on topics related to immigration may be focused on trying to reach an interested listening (and paying) audience, but may also highlight real legal issues needing attention. The AP editorial caused us to think about relationships to accent discrimination. If you are an immigrant and have questions about possible these issues, please contact our immigration attorney.

The immigration policy debate has been in the media a lot for a few months now. One item we have been is whether the cap on H-1B visas will be raised or not. We also are watching to see what the final policy will be regarding illegal immigrants already in the United States seeking citizenship along with other immigration subjects. What about foreign entrepreneurs who don't want to buy into a franchise, but have an idea for a new technology business?

The U.S. Citizenship and Immigration Service (USCIS) has a webpage specifically for entrepreneurs to seek pathways to obtain a U.S. visa. This resource gives an overview of the immigration process and allows individuals to pick and choose among a variety of options to determine which nonimmigrant visa category would be best for their situation.

The USCIS defines what an immigrant is and then directs you to several types of nonimmigrant visa categories to review and determine which one fits your specific situation. The visa categories that are highlighted here are:

H-1B Specialty Occupation
E-2 Treaty Investor
F-1/OPT Optional Practical Training
O-1A Extraordinary Ability and Achievement
L-1 Intracompany Transferee
B-1 Business Visitor

We have reviewed the H-1B Specialty Occupation visa and the E-2 Treaty Investor in this blog previously.

F-1/OPT Optional Practical Training visas are for students who are trying to start a business that is their major area of study.

O-A1 Extraordinary Ability and Achievement visas are for individuals who are known for their abilities and achievements. A person who has distinguished his/her self in the areas of science, arts, education, business, or athletics is eligible for this type of visa.

L-1 Intracompany Transferee visas are for employees who are executives, managers, or a highly specialized worker who is needed for the company branch or subsidiary located within the United States.

The B-1 Business Visitor visa is for those individuals trying to secure funding or office space or attend business meetings in the U.S. This type of visa is only good for 6 months.

A few years ago, an idea was floated around to establish a base of operations where foreign-born, U.S. educated entrepreneurs could work on their business plan outside of the United States, but still have close access to meet with potential investors or their U.S. based collaborators. This idea is starting to come to fruition with the first focused efforts being directed towards Silicon Valley.

A company is retrofitting a ship to be anchored 12 miles off the coast of San Francisco in international water where foreign-born entrepreneurs can work on their business plan and model. These entrepreneurs will be able to use the B-1 Business Visitor visa to visit the U.S. mainland to meet with individuals, but have more than just 6 months to get their company off the ground to where they can get a more permanent visa to remain in the United States. Marketplace from American Public Media recently gave an update on this project. These U.S. base entrepreneurs creating a way to help foreign entrepreneurs is an interesting solution to the time limitations built into U.S. law.

If you have questions about these various entrepreneurial visa options, consider contacting the Miami immigration lawyer at our firm for assistance.

Related Links:

EB-5 Visas and Franchises

Tech Companies Pushing as H-1B Visa Cap Battle Looms

There are a number of ways to obtain a green card and become a permanent resident of the United States. A person can get a green card through family, a job, refugee or asylee status, or another way. No matter which way one tries to obtain a green car, it is important to know that there are waiting periods.

By Family
A person can get a green card if s/he is an immediate relative of a U.S. Citizen, a family member of a current green card holder, or a widow(er) of a U.S. Citizen. Immediate relatives include spouses, unmarried children under the age of 21, and parents of a U.S. Citizen age 21 or older. Unmarried children over the age of 21, married children of any age, and brothers and sisters of a U.S. Citizen age 21 or older can also apply for a green card through a family preference category. The number of green cards that are issued through the family preference category is limited by Congress, so there is commonly a waiting period before a visa comes available that can lead to a green card.

If an individual already holds a green card, it is possible for his/her spouse and unmarried children can immigrate to the U.S. and receive a green card. There is a waiting period for this class of individuals to gain an immigrant visa that can lead to a green card.

There are also special family situations that will expedite a visa to get a green card. If a person is a battered spouse or child, there is a provision in the Violence Against Women Act that allows for that individual to apply for a green card to get away from an abuser and gain independence. This applies for a spouse who was married to a U.S. citizen or permanent resident abuser.

Another special family situation is a fiancé(e) of a U.S. Citizen and that person's children. This allows the fiancé(e) to immigrate to the U.S. and continue the immigration process after the marriage takes place.

An individual born in the United States, but to a foreign diplomatic officer is not a U.S. Citizen under the 14th Amendment. However, that individual can get a green card due to being born in the U.S.

Through a Job
If a foreign-born individual is offered permanent employment in the United States, that person can be eligible for a green card. For many jobs, it is necessary to obtain a certification from the Department of Labor showing there are not enough U.S. workers available in the geographic area for that job and the person is not displacing an American worker. There are also special categories of jobs that can expedite an individual's petition for a green card.

Through Refugee or Asylee Status
Any refugee can apply for a green card after being in the United States for a year. An asylee can apply for a green card one year after the grant of asylum status. If a refugee or asylee has a qualifying family member, that family member can also apply for permanent resident status after one year as well.

Other Ways
There are a number of other ways to obtain a green card. These categories are very specific and are limited to persons who meat particular conditions.

If you have questions regarding how to apply for a green card and the varying requirements, call the Law Offices of Santiago J. Padilla, P.A.

It is important to have a general understanding of not only the court jurisdiction, but individual court processes. In the United States there are multiple levels of courts. The first division is between the federal government and the state government. Within these divisions there is the trial court level and then the appeals court level. These courts deal with criminal and civil matters. But what if you have an immigration matter? Then you may be looking at going to Immigration Court. Many immigration law issues are addressed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

What is the Immigration Court?
Immigration Court deals with a range of immigration issues. The Department of Justice set up the Executive Office for Immigration Review in 1993 to deal with only immigration cases.

What kinds of cases come before the Immigration Court? Immigration Courts deal with deportation determinations, deportation relief, asylum requests, and review decisions by the Department of Homeland Security (DHS) as to the fear an individual has of being sent back to their country of origin. These courts also do status reviews, custody hearings, and can cancel an adjustment ("change") of status. Immigration judges have the honor of administering the oath of citizenship in DHS conducted naturalization ceremonies. Immigration judges make oral and written decisions at the end of every case.

What immigration judges cannot do is review and rule on visa petitions, employment authorizations, naturalization applications, naturalization revocations, or employer sanctions. These specific items are administered by the DHS.

Who will speak for me?

Any person can represent themselves before the Immigration Court. Considering the complexities of U.S. immigration law, it is a sensible to work with a court representative who knows the law. Immigration courts allow licensed attorneys to represent persons coming before the court. In addition, there is also a category of representatives called "accredited representatives". These individuals work for specific non-profit religious, charitable, social service, or similar organization that has been recognized by the Board of Immigration Appeals to represent aliens. The Immigration Court keeps a list of law firms that practice immigration law as well as a list of accredited representatives if an alien seeks to find representation.

Paralegals, immigration specialists, visa consultants, and notarios are not authorized to practice law and cannot appear before the Immigration Court to represent an alien. Do not consider those sources as a primary/sole source to turn to for advice.

I Went to Court, But Do Not Agree With The Decision

If a person is not happy with a decision, that person may appeal to the Board of Immigration Appeals. Just like any other appeal in the U.S. Justice system, there is a time limit for which appeals will not be accepted. If you do not file your appeal within the time limit, you cannot challenge an Immigration Court decision. If you disagree with the decision of the Board of Immigration Appeals, then you can appeal to the U.S. Attorney General or a federal court.

Miami, Florida has two Immigration Courts. One is in located in downtown Miami and the other is at the Detainee Processing Center (located off Krome Avenue). The Law Offices of Santiago J. Padilla, P.A., is here to help you with your immigration needs and can provide consultation on how to navigate the waters of immigration law.

Related Links:

Understanding Non-Immigrant Visas

H-1B Work Visa Difficulties

Whether it was the 2008 or 2012 presidential campaigns or the March 5, 2013 publication of a book by former Florida Governor Jeb Bush on immigration policy reform, the discussion has reached a level of attention not seen since the 1999 Elián González story.

A regular talking point in recent political campaigns has included immigration reform. There are many voices on the subject, with a handful of current themes related to "path to citizenship", other special "legal status" or none of the above. Although there was a short break in the national coverage over immigration reform after the last presidential election, this past week immigration policy is back in the forefront of the national dialog.

Florida Voices in the News
The return to a national dialog rests with a series of comments from two prominent Florida political figures, Sen. Marco Rubio and former Governor Jeb Bush. Both have highlighted the importance of immigration reform as in the best interest of Florida and the United States. And both appear to have made some changes in public positions.

While governor of Florida, Jeb Bush pushed for licenses for illegal immigrants, proposed in-state college tuition for children of illegal immigrants living in Florida, and fought for the federal government to pass the DREAM Act (Development, Relief and Education for Alien Minors). He also supported a path to citizenship for undocumented immigrants. In his new book, Bush argues that creating a citizenship path for undocumented immigrants would lead to more illegal immigration instead of solving the problem.

Sen. Marco Rubio previously held the position that illegal immigrants should not be granted citizenship. Today he is one of the Senate Group of 8 championing immigration reform, as we have previously discussed in this blog. Rubio's proposal includes border improvements to be undertaken prior to implementing citizenship paths for illegal immigrants.

What to Think
With these strong political figures prominent in the new cycle it is difficult to know exactly what a Miami-Dade resident is to think of all this. Even though there are 3 or 4 different immigration reform plans being bantered about in the news, they are just proposals. The House of Representatives balked at the White House plan President Obama outlined in his State of the Union Address. The Senate Group of 8 plan appears to be similar to the White House plan, but there are differences in how security and permanent residency should be addressed and in what order. Sen. Marco Rubio in his response to the State of the Union stated that the White House plan would never pass the House or Senate.

Beyond the political rhetoric and news stories talking about "flip flops", there are some very specific things you should pay attention to. These are all hypothetical and nothing has been enacted into law. No House or Senate committee or subcommittee has seen these proposals or discussed them. Considering the current political climate of us versus them and very little getting through either house of Congress at this point, it is up in the air about what will actually happen.

If at any time you have questions about immigration matters in our area, please contact the Miami immigration attorney at our firm for more tailored guidance.

United States law severely restricts the civil rights of non-citizens who do not obtain proper approval for their immigration status from the federal government. In some cases, immigrants may find themselves imprisoned without bail over something as basic as an employment dispute. That's why if you're an immigrant--or the family member of an immigrant--it's important to work with an experienced Miami immigration attorney to ensure someone looks after your best interests.

On February 15 of this year, the U.S. Court of Appeals for the 11th Circuit, which has jurisdiction over Florida, issued a decision that shows just how bad things can be when you run afoul of federal immigration authorities. The case involves Anesh Gupta, an Indian citizen who has lived in the United States since 2001. He initially entered the country on a B-2 nonimmigrant visa. This type of visa is used by non-citizens who want to vacation or receive medical treatment in the United States.

Gupta's B-2 visa expired in June 2002. He married a U.S. citizen, Laura Schultz, just before that deadline and Schultz applied to the federal government to amend Gupta's immigration status. The government gave Gupta an Employment Authorization Document that enabled him to get a part-time job at Walt Disney World. Gupta apparently got into several disagreements with Disney management and filed numerous complaints with government agencies accusing the company of violating immigration laws.

U.S. Immigration and Customs Enforcement (ICE) ultimately denied Schultz's application to adjust her husband's immigration status and instead moved to deport him. In August 2009 ICE agents obtained an arrest warrant for Gupta--on the grounds he posed a threat to Disney World--who was taken into custody and initially held without bail. He was released from a Miami Homeland Security detention center in September 2009.

Any Immigrant Can Be Labelled a Threat
Gupta sued the ICE agents that arrested him for violating his civil rights. He said his arrest, subsequent detention, and the search of his apartment and car violated the Fourth and Fifth Amendments to the Constitution. He also claimed the agents failed to return numerous items of personal property taken during the arrest. He asked a trial court to award him damages.
The trial court instead dismissed the case. The Eleventh Circuit agreed with that decision in its February 15 ruling. Both courts said they lacked "subject-matter jurisdiction" to hear this type of case. Federal law states that as an "alien," Gupta cannot bring any civil lawsuit in a U.S. court arising from the ICE's decision to begin deportation proceedings against him. That includes any alleged injury to him or his property that took place during his arrest and detention.

The Eleventh Circuit noted that ICE "perceived" Gupta as a threat to Disney World, which the government considers a "critical infrastructure asset," and this justified the decision to issue an arrest warrant for Gupta and detain him without bail. The appeals court said this also extended to the seizure of Gupta's property, including his apartment keys, as part of the government's need to protect against any potential threat to the resort.

Avoiding a Similar Fate
Anesh Gupta's case demonstrates just how fragile immigration status can be for someone who works in the United States on a temporary visa. It doesn't take much provocation for the government to declare you a threat and haul you off to jail. That's why if you or a loved one have any doubt about whether you have the proper permits to live and work freely in the Miami area, you should contact immigration attorney Santiago J. Padilla at (305) 358-1949.

Related Links:
Understanding Non-Immigrant Visas
Tech Companies Pushing as H-1B Visa Cap Battle Looms

Immigration reform has been bandied around for some time. Last year saw various battles in the courts over state laws on immigration. The Obama administration has made policy changes in immigration enforcement, as this blog has discussed.

But, so far, comprehensive immigration reform has stalled. Efforts to get the DREAM Act, or a reasonable facsimile, have fallen short for years. Despite a logjam in Congress on the issue in the past, many commentators say that true changes to immigration law may be possible during the next Congress.

That optimism for potential reform measures making it through this time around seems to be gaining support in political circles. Many media reports have focused for some time on the politics surrounding immigration issues. But, recently, Florida Senator Marco Rubio provided an outline of what he believes should be addressed in the area of immigration reform.

That outline, which reportedly appeared in the Wall Street Journal, was acknowledged by White House press secretary Jay Carney, who says that the Obama administration believes that the proposal indicates that a bipartisan solution to changing immigration law may be possible.

Obviously, the outline presented in the media has not been sent through the rigorous debate that can still be expected on Capitol Hill. Similarly, the outline is not law, and may not in the end reflect what shape any eventual law will include. But, the stalemate that has seemed to overshadow discussions of immigration reform may show signs of waning.
The Obama administration has been seeking immigration reform that includes a pathway to citizenship for the country's 11 million undocumented immigrants who reside in the country. Rubio's proposal reportedly includes the idea of allowing a pathway for undocumented immigrant to apply for a work permit, and eventual citizenship through U.S. immigration law.

His proposal also addresses employment business immigration issues based visas, suggesting that immigration reform should offer more visas for high tech workers and other ideas for farm workers.

It is important to note that the Florida Senators proposal are ideas for potential immigration reform measures, and the administration has not provided a specific set of immigration reform measures. But the recent debate shows signs that, as Jay Carney phrased it, "bode well for a productive, bipartisan debate," according to the Washington Post.

If at any time you have questions about immigration matters in our area, please contact the Miami immigration attorney at our firm for more tailored guidance.

Not every trip to the United States is permanent. Many individuals plan on coming into the country for a myriad of reasons, perhaps for pleasure or just a short business trip. In other cases you may be entering for specialized medical attention or temporary work. In these cases--when the trip is short-term, you may need to obtain what is known as a temporary, or non-immigrant visa.

These visas are issued at United States embassies and consulates in an applicant's home country. It is critical to note that these visas generally are not applied for within the United States. The main exception is that someone with a valid visa inside the U.S. may apply for a change of status with the United States Citizenship and Immigration Services or to extend their stay. Depending on the location there may be a limit per year for some non-immigrant visas.

It is critical to understand these issues before making long-term preparations, and usually it is in your best interest to talk with an immigration lawyer for guidance. A few of the basic information regarding these issues is outlined below...

What Are the Requirements?
Perhaps not surprisingly, to receive one of these temporary visas, the applicant usually has to show convincingly that you actually do plan to return after the expiration date. This is usually done by convincing the office that you have strong ties to your home country. Similarly, one must show that they have the economic resources to support themselves while in the United States. If granted, those with non-immigrant visas will receive an I-94 card that indicates the date they must leave the United States.

If you are already in the United States you generally may not apply for these non-immigrant visas except in two situations: to request a change of status or to extend your stay.

Extending Your Stay
To extend a stay beyond that your original date you must apply for an extension. The application generally must be made before the expiration date on your I-94 card. However, an immigration attorney may advise you on a few of the exceptions to this requirement. For example, if you can show that the extension was not applied for because of extraordinary circumstances and that all other rules were properly followed, then the USCIS may still consider the extension request. Obviously meeting this exception is harder than if one would apply within the appropriate time-frame, but in certain circumstances it is still worth pursuing.

Change of Non-Immigrant Status
It is important to remember that these visas come with a specific purpose, perhaps to study or conduct specific business. This purpose limits ones activities, but allows the holder to to do various things in order to accomplish the general purpose. There may come a time, however, when you need to change your status to perform a different function. One of the more common examples is someone who arrives for pleasure but then decides to stay for some other purpose--perhaps going to school. In order to do this legally you must seek a change in immigrant status. A new applications must be submitted to the USCIS.

The above represents just a very cursory summary of some information as it relates to non-immigrant visas. In our area, it is critical to get the aid of a Miami immigration attorney when working through these issues to ensure you place yourself in the best position possible.

According to a recent report in The Hill, new legislation was introduced this week that would increase the H-1B Visa cap. The measure is known as the "Immigration Innovations Act" (I-Squared) and would raise the cap to 115,000--representing a 50,000 visa increase from the current 65,000 cap. In particular, the bill includes a scale that would allow for more H-1B visas to be issues based on market demand. Depending on the use, the ultimate cape may be as high as 300,000 visas.

Of course introduction of a bill and passage of a bill are two entirely different things, and in today's partisan environment, getting anything into law is an uphill battle. In this case, the bill faces still opposition from many labor groups, which members of many tech companies are hoping to see the change enacted. Though there is bipartisan support as well as bipartisan opposition, and so the bill is somewhat unique in not falling directly along party lines.

Taking Sides on Immigration Bill
The biggest proponents of the measure are those in the tech sector who use the H-1B visa program to recruit many of the leading minds from elsewhere to fill jobs here as programmers, engineers, and other valuable professionals. Many companies are finding that the cap is insufficient to fill their demand for appropriate labor and aid. For example, the article points out that even though the U.S. Citizenship and Immigration Services began the petition process in April, it has already reached the cap by June--in about two months.

One of the main benefits of the H-1B program for these entities is that it allows for more timely filling of critical work positions. As any business owner knows, there come situations where the need for aid is paramount. It is often possible to wait through a lengthy application process to receive the expert support. The H-1B visa option allows more flexibility.

The bill (and the H-1B program in general) is not without its critics. Most opponents, including some labor groups and their advocates, suggest that the program is a backhanded way to train foreign workers for jobs that will eventually be outsourced. To combat employers abuse, some legislation has been introduced in the past to amp up enforcement and increase restrictions on employers use of the tool to retain proper employees.

What Is Next?

Most expect a new comprehensive immigration bill to be pursued this year which will undoubtedly address the H-1B issue. However, it remains to be seen what the ultimate proposal might look like--or if it will pass at all.

To have your own questions about H-1B visas answered consider contacting the Miami immigration lawyer at our firm for help.

Immigration legislation has been a hot topic for the last several weeks, and it looks like a group of top U.S. Senators has finally put some of those ideas down in the form of actual proposed legislation. As widely reported, including in a new NDTV article, the proposed legislation would make several changes in immigration protocols. One of the items on the list is a doubling of allowable H-1B visas and editing the process to create a "market-based escalator."

The bill, known as The Immigration Innovation (I2) Act of 2013, specifically proposes changing the H-1B cap from 65,000 to 115,000. This would be on top o the escalator that ultimately would change the cap (possibly increasing it), if the demands allows it. Per the legislation as it is currently written, there would be a maximum bar of 300,000, regardless of demand.

According to the summary of the bill, the cap works based on timing. For example, if the cap is met within 45 days, then an extra 20,000 visas will be available. If the cap is hit two months out (60 days), then only another 15,000 will be made available. This continues with a drop to 10,000 extra H-1Bs for the cap being reached within 90 days.

On top of the cap limit the law also would allow employment for dependent spouses of H-1B visa holders; step that has long been sought by those work on reforming this process.

Other Changes in the Bill

Beyond the H-1B details--which have proven very controversial in previous attempts at immigration reform--the legislation also calls for recapturing of unused green card numbers and eliminating certain country caps. It also would demand new protocols to "provide legal permanent residency to talented and brilliant."

The Green Card changes may prove incredibly helpful to those seeking to stay in the country. In general, the legislation would increase access by expanding exemptions and eliminating per country for Green Cards based on employment.

The measure calls for the recapture of Green Card numbers that were approved by Congress in previous years but were not used. It will exempt certain categories of persons from the employment-based Green Card cap, including dependents of employment-based immigrant visa recipients, U.S. STEM (Science, Technology, Engineering and Math) advance degree holders, persons with extraordinary ability, and outstanding professors and researchers. The legislation also provides for the roll-over of unused employment-based immigrant visa numbers to the following fiscal year so that future visas are not lost due to bureaucratic delays, and eliminate annual per-country limits for employment based visa petitioners and adjust per-country caps for family-based immigrant visas.

In an attempt to ensure current citizens are not adversely affected by the process, the bill also calls for changes to fee structures for H-1Bs and Green Cards to create a grant program. That program would work to promote American "re-training and education." Of course a big concern among some lawmakers is any effect that more foreign born workers may have and employment opportunities those already here.

Contact our Miami immigration lawyer for more information about how current or proposed law might affect you or your business.