In fact, ICE has not only installed ankle monitors on criminal immigrants, but also on non-violent and non-criminal immigrants. This includes individuals who are not likely to run and have a clear path to U.S. citizenship.
BI Incorporated, a private contractor, runs ICE's ankle monitor program. Since January 2012, it has installed 418 ankle monitors. Compare that to the 462 ankle monitors installed in all of 2011 and it is clear that there is a rise in ankle monitor use.
]]> Federal lawsuit against ICEThe Dallas-based Isenberg Center for Immigration Equality (ICIE) has brought a lawsuit in federal court demanding that ICE be prohibited from using ankle monitors on certain undocumented immigrants, including those that:
According to the lawsuit, ICE agents have used excessive force against these immigrants and the ankle monitors have caused emotional distress. ICIE recommends using less obtrusive methods, such as GPS devices, to track the immigrants.
Whether or not this lawsuit succeeds, it sheds light on a significant issue: ICE may be targeting undocumented immigrants with criminal records for deportation, but other immigrants are also facing immigration enforcement tactics. If you are one of these immigrants, speak with an experienced immigration attorney about your options to defend against the charges you face.
Source: ICIE, "ICIE Sues to Prohibit Use of Ankle Monitors on Immigrants," Apr. 24, 2012.
]]>A nationwide campaign called "Become a Citizen Now!" was launched in March to encourage these immigrants to apply for citizenship. The goal is to help 5,000 immigrants with the naturalization application process. So far, 500 immigrants have submitted applications through the campaign, whose target audience is immigrants in Maryland and 11 other states.
One reason for the campaign is the presidential election in November. The citizenship process takes approximately five months, which means that immigrants who applied for citizenship in March and April will likely have a chance to vote in the election.
]]> The National Council of La Raza is also pushing eligible candidates to apply for citizenship. Its goal is to register 180,000 Latinos to vote.The citizenship application process
If you are ready to file for citizenship, it can be helpful to speak with an immigration attorney about your application, especially if you have some things on your record that may make it difficult to meet all eligibility requirements.
The following are some of the steps involved in the naturalization / citizenship application process:
Source: Associated Press, "Naturalization push ahead of November election," Rodrique Ngowi, Apr. 21, 2012.
]]>In 1996, Congress adopted the Defense of Marriage Act (DOMA). The law prevents the federal government from recognizing same sex marriages and denies federal benefits for married couples. Since immigration is a federal benefit, the government does not recognize same sex couples for immigration law purposes. Therefore, same-sex spouses are unable to obtain green cards.
]]> For opposite-sex couples, there is an exception to the immigration process, allowing for recognition of a foreign spouse as an immediate relative of a US citizen, putting the spouse on the fast track to citizenship.The suit was filed in federal court by the advocacy group Immigration Equality. The couples named in the complaint meet every qualification for obtaining immigration benefits and green cards for the foreign spouses, except that the foreign spouses are of the same sex.
Not all states have policies that mirror the Defense of Marriage Act. Each couple in the lawsuit is validly married in states that recognize same sex marriage. Maryland does not currently allow same-sex partners to wed, but Governor Martin O'Malley recently signed into law a bill legalizing same-sex marriage. The law is set to go into effect at the beginning of 2013.
Even if same-sex marriage is legalized in Maryland, same-sex spouses will still be denied immigration benefits because of the federal Defense of Marriage Act. As a result of DOMA, same sex marriages are not currently recognized, and same sex couples cannot use the immediate relative exception.
Source: NY Daily News, "Married gay couples sue feds for green cards," Associated Press, Apr. 4, 2012.
]]>Arizona's immigration law, known as Senate Bill 1070, was signed into law in 2010 but was subject to a federal court injunction after the federal government brought a lawsuit to prevent certain parts of the law from taking effect. The governor of Arizona filed an appeal, which is now before the U.S. Supreme Court. The law requires police officers to check the immigration status of those they stop for other violations if they have reasonable suspicion that they are not legal immigrants.
]]> The question before the Supreme Court is whether Arizona overstepped its authority. The state's law may infringe on the federal government's immigration enforcement power, therefore making the law unconstitutional. "The Constitution vests executive authority over immigration with the national government," said Solicitor General Donald B. Verrilli Jr., arguing for the federal government.In return, Arizona argued that the law is fully within federal law and simply notifies federal authorities when someone is in the country illegally. Even the liberal-learning Justices have seemed to side with Arizona, with Justice Sonia Sotomayor stating, "You can see it's not selling very well."
If the U.S. Supreme Court upholds part of Arizona's contested law, it may, as quoted by the New York Times, "redraw long-established boundaries between the federal government and the states when it comes to immigration enforcement, which has been considered a nearly exclusive federal preserve."
However, the current case before the Supreme Court is not the only case to challenge the law. Cases by immigration right advocates and civil right groups contend that the law would lead to racial profiling and harassment of legal immigrants, visitors and citizens. These arguments are on hold pending the current case, but may continue if the Supreme Court holds that the Arizona law does not conflict with federal law.
The Supreme Court will likely release its decision in June.
Source: The New York Times "Arizona Immigration Law (SB 1070)," Times Topics, Updated Apr. 25, 2012.
]]>During Cross Check, a nation-wide operation in late March, 3,169 individuals were arrested by ICE, all of whom face detention and deportation / removal. The operation lasted six days and involved more than 1,900 ICE agents and officials as well as local and state law enforcement agencies. Authorities arrested individuals from 116 different nationalities, including 2,834 criminal aliens, 698 immigration fugitives and 559 illegal re-entrants.
]]> What can individuals arrested as part of Cross Check or another ICE enforcement effort do to defend themselves? Is it possible to prevent deportation?Generally, someone may be able to stop deportation through:
These deportation relief options are very narrow. Whether you are entitled to relief will depend on your unique situation. An immigration attorney can help you determine what relief options are available to you.
Source: ICE, "Fact Sheet: National Cross Check Overview," Apr. 2, 2012.
]]>Between April 2nd and April 9th alone, USCIS received 17,400 cap-eligible petitions and 8,200 master's degree exemption petitions. This number nearly doubles the number of H-1B employment based visa petitions it received for all of April in 2011.
This could be a good sign that the economy is picking up. It is also a sign that you shouldn't wait too long to get your H-1B applications in this year if you would like to hire foreign workers.
]]> H-1B visasThe H-1B visa allows employers to employ foreign workers for "specialty occupations." A specialty occupation is one that "requires theoretical and practical application of a body of highly specialized knowledge and attainment of a bachelor's or higher degree in the specific specialty (or its equivalent)." Examples of specialty occupations include engineering, mathematics, sciences, law and the arts.
In order for an employee to obtain an H-1B visa, the employer must submit Form I-129, Petition for Nonimmigrant Worker, evidence showing the employee's education background, and a certified Department of Labor "Labor Condition Application" (LCA) form. The USCIS will review the petition and either grant the application or deny it.
The H-1B caps
There are two separate caps for the H-1B visa, the H-1B regular cap and the H-1B master's degree exemption cap.
The master's degree exemption cap is 20,000. The first 20,000 petitions filed for foreign workers who have the equivalent of U.S. master's degrees or higher can come to the U.S. under this cap. Any additional petitions involving foreign workers with master's degrees are counted under the regular cap.
The regular cap is 65,000 and applies to most H-1B applications. Some applications do not fall into the H-1B visa cap, such as those for foreign workers from Chile and Singapore.
If you are an employer considering hiring a foreign worker through the H-1B visa process, you may file the H-1B petition up to six months in advance of the potential employee's start date. Now is the time to speak with an experienced immigration lawyer.
Source: Wall Street Journal, "Skilled-Worker Visas See a Surge in Demand," Miriam Jordan, Apr. 9, 2012.
]]>Arizona's immigration law - SB 1070 or the "Support Our Law Enforcement and Safe Neighborhoods Act - made news in 2010 as one of the strictest state immigration laws addressing illegal immigration.
]]> The law would make it a state crime (misdemeanor) for an immigrant to be present in Arizona without registration documents. Among other things, police officers would be required to check the status of anyone stopped for a separate crime or infraction (such as speeding) if the officers had a reasonable suspicion that those stopped were illegal immigrants.The United States Department of Justice asked for an injunction against enforcement of the law, which a federal court granted. Arizona unsuccessfully attempted to reverse the injunction. It brought an appeal to the U.S. Supreme Court, which has agreed to hear the case on April 25, 2012.
According to the brief, Arizona's immigration law would:
According to supporters of SB 1070, the federal government has not done enough to stop illegal immigration and states must "do it themselves." However, the federal government has many initiatives in place to prosecute undocumented immigrants, with a focus on those who have committed crimes.
We will keep you posted on what occurs at the Supreme Court.
Source: Fox News Latino, "State AGs: Arizona Immigration Law Should Be Rejected by Supreme Court," Mar. 28, 2012.
]]>Property exemptions and international estate taxes
Perhaps the most important difference for nonresident immigrants is that they are not entitled to the $5 million property exemption that permanent residents and U.S. citizens can claim. Instead, an immigrant may only exempt $60,000 of their property in the U.S.
]]> Furthermore, all immigrants, including permanent residents, may be subject to estate tax from their home countries. Some countries have signed estate and gift tax treaties with the U.S., which can prevent both countries from taxing the same assets.Yet, even if your country has not entered into a treaty with the U.S., there are some estate planning tools that can reduce the amount of money your estate will need to pay upon your death, such as an offshore trust.
Are you married to a non-U.S. citizen spouse?
Generally, spouses can transfer property between them without having to pay federal estate tax. Unfortunately, this rule does not apply to non-U.S. citizen spouses. In order to be able to transfer property using the unlimited federal estate tax deduction, you will need to set up a Qualified Domestic Trust (QDOT).
A QDOT is a trust with very specific requirements, including:
After one spouse passes away, any income that is distributed to the surviving spouse from the QODT is only subject to income tax and not estate tax.
The above issues are only a glimpse into the intersection of estate planning and immigration. Since the laws are complex, we strongly recommend speaking with an attorney experienced in both of these areas.
]]>"I'm just really thankful for everything," said the pre-med student, after a large social media-driven movement asked for his release. The student, an undocumented immigrant, was being held at a Maryland detention center when his friends started the social media petition. The petition garnered more than 6,000 signatures.
]]> Representative Chris Van Hollen (D-Md.) agreed with the petition and asked U.S. Immigration and Customs Enforcement (ICE) to release the student and his family while their particular case was reviewed. Federal officials agreed.The family came to the U.S. in 2001 and requested political asylum. After their asylum was denied, they remained in the U.S. The immigration attorney who handled their case was disbarred, hinting at the possibility that the case was mishandled.
"It was a great experience to just stay outside and know that you were free," the student said.
Justice Department Under Fire
This case is particularly interesting in light of a current court case involving the Justice Department and a 2009 U.S. Supreme Court ruling. Immigration advocates have accused the Justice Department of using a misleading statement to influence the Court's ruling that deportation is permissible while immigration appeals are pending.
According to court documents, the Justice Department attorneys had said that the federal government "facilitated the return" of deported immigrants who were able to win their immigration appeals. Thus, it was okay to deport them. Immigration attorneys around the country disagreed with that statement and said that they have never seen assistance offered to those immigrants.
The U.S. District Judge hearing the case, New York Judge Jed Rakoff, has said there is "substantial evidence that the judicial process may have been impugned if the Supreme Court relied upon what may well have been inaccurate or distorted factual representation."
Source: WAMU, "Maryland Student Facing Deportation Is Released From Custody," Elliot Francis, Mar. 15, 2012.
]]>There are some exceptions. First, divorce can affect the amount of time that it takes for you to obtain citizenship. Most immigrants must wait for five years before they can become citizens. However, a permanent resident can obtain citizenship (naturalization) after three years of permanent residence as long as he or she was married to a U.S. citizen for at least three years before taking the citizenship test. If you divorce before those three years pass, you will need to wait five years before you can apply for naturalization.
]]> Second, immigration officials may question whether your marriage was a "sham marriage," or, in other words, they may think you married solely for immigration purposes. You may need to prove to the USCIS that your marriage was legitimate. You can do this by collecting documents that prove you did things married people commonly do, such as owning joint bank accounts, living together, going on vacation together, etc.What about divorce and conditional permanent residence?
The information above applies to unconditional permanent residence. Conditional permanent residence is different. Conditional permanent residence means that your green card is valid for two years, unlike the usual ten years. Individuals receive conditional permanent resident status if they are married to a U.S. citizen or legal permanent resident for less than two years when they receive their green card.
In order to remove the condition, the U.S. citizen spouse or permanent resident spouse must submit a joint petition with the conditional green card holder during the last three months of the conditional green card. Otherwise, the permanent resident will lose his or her lawful permanent resident status.
After a divorce, the conditional green card holder must apply for a waiver to remove the condition without the help of his or her ex-spouse. There are a few grounds for applying for that waiver: 1) you married in good faith; 2) you would experience extreme hardship if you were sent back to your original country; or 3) your spouse abused you physically, financially or emotionally.
]]>However, the Maryland immigration law was stopped by a petition drive that obtained more than two times the number of signatures necessary to require a statewide vote.
The organization that led the push to enact the law, CASA, filed a lawsuit to block the referendum, stating that the law was an appropriations bill (a bill authorizing the government to spend money by setting the money aside for a specific use). Appropriations bills cannot be put to a public vote. However, the Ann Arundel Circuit Court judge dismissed the lawsuit on the grounds that the bill was not an appropriations bill but "an act of general legislation."
]]> According to the Maryland Department of Legislative Services, the Dream Act could cost $3.5 million per year by 2016; however, advocates believe that the Dream Act could actually bring in taxable income, thus helping the economy. They also believe that many of these children have lived in the U.S. (and Maryland) for most of their lives, are good students, and should be granted the same benefits of citizen students residing in Maryland.Meanwhile, the federal Dream Act (Development, Relief and Education for Alien Minors Act) was reintroduced to the U.S. Senate in May 2011 by Senate Majority Leader Harry Reid. That Act would present a path to permanent residency for certain young undocumented immigrants in the U.S.
President Obama supports the Dream Act, saying, "Let's agree to stop expelling responsible young people who want to staff our labs, start new businesses, defend this country." Republican presidential candidates, on the other hand, have vowed to veto the Dream Act should it pass Congress.
Source: The Baltimore Sun, "Immigrant tuition bill can go to referendum, judge rules," Andrea F. Siegel, Feb. 17, 2012.
]]>This immigration deportation program has now come to Baltimore.
Homeland Security and ICE created Secure Communities in 2008. When police arrest alleged criminals, they take fingerprints. The police then send the fingerprints to the FBI. This program will allow Homeland Security to receive those fingerprints from the FBI to check alleged criminals' immigration statuses. If the check uncovers an undocumented immigrant, Homeland Security notifies ICE.
]]> While ICE touts the program as a success, saying it has transformed "immigration enforcement to a focus on criminal offenders and dramatically increased the removal of convicted criminals," local officials and immigration advocates are much less willing to embrace the program.Boston Mayor Stephanie Rawlings-Blake is one of the people objecting to Secure Communities. She wrote a letter to ICE saying that the decision to use the program in Baltimore is disheartening. Local officials will have no control over the program (they cannot "opt out" of the program) and believe that there will be even less cooperation between potential crime suspects and police - especially with unsolved crimes.
Since 2008, at least 670 Maryland immigrants have been deported through the program. This number will undoubtedly increase over the next few years. Unfortunately, the program isn't just deporting criminals charged with felonies - only 25 percent of the individuals deported through the program committed felonies. Others were simply accused of misdemeanors or were deported on an immigration offense.
ICE expects that the program will reach across the U.S. by late 2013.
Source: The Baltimore Sun, "Feds to check immigration status of people arrested in city," John Fritze, Julie Scharper, Feb. 21, 2012.
Andrew Lorenzen-Strait has been named the new public advocate. Immigration rights advocates, immigration attorneys and ICE respect him for his past work as a liaison between the two groups. His new role will involve speaking with immigrant groups and bringing deportation concerns to ICE.
]]> While immigration advocates are hopeful that this position will be a positive change, they are also skeptical. The Obama administration claims itself to be immigrant-friendly, but has deported more people than any previous administration. Nearly 400,000 undocumented immigrants were deported last year. There is concern that the public advocate position is merely an attempt to improve ICE's public relations.Last year, ICE rolled out a new policy that encourages immigration prosecutors to use their discretion when deciding to pursue deportation cases. However, it also created difficult immigration enforcement programs. For example, one program, called "Secure Communities," allows federal agents to take the fingerprints of alleged criminals to determine if they are illegal immigrants.
Perhaps, however, the tides are changing. According to Lorenzen-Strait,
As we work to enact significant policy changes to focus the agency's
immigration enforcement resources on sensible priorities, implement
policies and processes that prioritize the health and safety of detainees
in our custody while increasing federal oversight, and improve the
conditions of confinement within the detention system, I will strive to
expand and enhance dialogue with the stakeholder community.
Source: Huffington Post, "Immigrant Advocates Skeptical On New DHS Public Advocate Position," Elise Foley, Feb. 7, 2012.
]]>The study, "The Impact of Immigrants in Maryland" by the Commission to Study the Impact of Immigrants in Maryland, reviewed immigrants' contribution in the workforce over a ten-year period (2000-2010), including studying the cost of the government services the immigrants received.
]]> A principle finding of the report is that immigrants usually did not compete with U.S. citizens for jobs in Maryland. Other findings include:The Commission is asking for legislators to consider immigration's long-term impact on the economy, which is more significant and much more positive than the short-term costs.
This report comes at a significant time. Immigration is front-and-center in political debates and ideas for reform are hitting the tables of legislators around the country. We understand the value of immigrants to our state and country and can only hope that others take the time to read reports such as "The Impact of Immigrants in Maryland" and learn the facts.
Source: The Wall Street Journal, "'Common Sense' Immigration Policy Recommended by Md. State Panel," Feb. 9, 2012.
]]>This can be a "Catch 22" for employers, who must tread carefully between immigration laws and employment laws.
]]> Under the Immigration and Nationality Act, section 274A, employers may not knowingly hire an immigrant who is unauthorized to work in the U.S. There are many documents that an employer can check to ensure that an applicant is eligible to work. While some undocumented immigrants will forge these documents, the employer must only ensure that the documents appear to be genuine. Challenging a genuine document may raise employment law issues.Under federal and state employment laws, employers may not discriminate against employees on the basis of national origin or citizenship status. This includes discrimination during hiring or recruiting. Some potential problems that could arise during hiring include posing demographic questions on applications, asking about citizenship status during an interview or using unequal hiring practices. Employers should treat all applicants the same during all stages of the application process and must give lawful reasons for not selecting a particular applicant.
Whether you are an employer considering hiring an immigrant or facing an employment discrimination lawsuit, or an immigrant who is the victim of employment discrimination, speak with an attorney experienced in both immigration and employment law.
Source: INA ยง 273A, "Unlawful Employment of Aliens."
]]>