Noncitizens of the United States wishing to visit for business or pleasure can obtain a nonimmigrant B1/B2 Visa.
B1/B2 visas are for visitors to the United States who are entering for a temporary business, pleasure (tourism), or medical treatment purpose.
Allowable Activities on B1/B2 Visa
People who enter the United States on a B1/B2 visa must abide by many restrictions on what they can and cannot do while they are in the United States. They cannot accept employment nor attend school; to do so would violate the terms of the visa. A B1/B2 visa holder can enter the US for the following reasons:
- Tourism, vacationing, visiting friends and family
- Seeking medical treatment
- Participating in scientific, educational, professional, religious, or business conventions
- Engaging in commercial transactions not involving gainful employment, such as consulting with clients or business associates
In order to obtain the visa, the visitor must provide evidence as to the purpose of the trip, that they do not intend to abandon their residence in their home country, and that they have the financial means to support themselves during their stay in the US.
Evidence for Obtaining B1/B2
When applying for a B1/B2 visa at the US Consulate or Embassy, it is important to bring evidence proving three things: your reason for coming to the US, your intention to leave after accomplishing the purpose of your trip, and your ability to pay for your trip.
There are many reasons a person may seek to obtain a B1/B2 visa and the evidence used to prove the purpose of your trip will vary accordingly. Such evidence can include invitations (wedding, graduation, etc.), tickets to events, programs, itineraries, letters from friends and family, medical records, and letters from your employer. You can demonstrate your intent to leave the US by proving permanent residence, employment, or family/business ties in your home country. Bank statements, credit cards, traveler’s checks, cash, and pre-paid travel arrangements and hotel accommodations can be used to show your ability to pay for your trip.
Visa Waiver Program
The United States began the Visa Waiver Program in 1986 in order to allow nationals of certain countries to travel to the United States for tourism or business for stays of 90 days or less without obtaining a visa. However, the ease of entering the US under this program has a cost. A foreign visitor gives up certain rights in exchange for using the Visa Waiver Program, such as the right to change or extend your immigration status, seek administrative or judicial review if you are denied entry into the US (with some limited exceptions for asylum seekers), or to contest a removal order. More information on the Visa Waiver Program requirements for entry can be found at www.cbp.gov.
For people wanting to know how an immigrant visa (also referred to as permanent residency or a “green card”) can be obtained through a family member.
Citizens and permanent residents of the United States have the ability to petition the federal government for an immigrant visa for certain family members. US citizens can petition for more categories of family members than permanent residents can. The amount of time between the date the petition is filed and the date when the family member actually obtains the immigrant visa can vary wildly – anywhere from 6 months to 20 years or more. The wait time is determined by the immigration status of the petitioner (are they a citizen or a permanent resident?), the category of family member they are petitioning, and what country the family member is from.
Here are the names and descriptions of the family-member categories that citizens and permanent residents may petition for:
US Citizen Petitioners
- Immediate Relatives:
- Spouse
- Unmarried child under 21 years old
- Parent (the US citizen petitioner must be at least 21 years old)
- First Preference
- Unmarried child over 21 years old (and his or her children)
- Third Preference
- Married child of any age (and his or her spouse and children)
- Fourth Preference
- Siblings (and his or her spouse and children)
Permanent Resident Petitioners
- 2A Preference
- Spouse
- Unmarried child under 21 years old (and his or her children)
- 2B Preference
- Unmarried child over 21 years old (and his or her children)
Every year, the US government authorizes a set number of immigrant visas for the family-based categories. Every year, more citizens and permanent residents file petitions for their family members than there are immigrant visas authorized. This has created a years-long backlog in the system.
The government assigns each of the different types of family petitions a priority. Some family relationships have a higher priority than others, meaning those family members will generally get their permanent residency faster. The government also prioritizes the petitions for immigrant visas based on the country that the family member is immigrating from. Mexico, China, India, and the Philippines have individual waiting times because family members from these countries account for many of the requested immigrant visas.
The family relationship categories with the highest priority have a special name. They’re called “immediate relatives.” The spouses, unmarried children under 21 years old, and parents of US citizens are immediate relatives. Immediate relatives have immigrant visas instantly available to them. Once the initial petition by the US citizen is approved by US Citizenship and Immigration Services, the immediate relative may immediately file an application for the immigrant visa – sometimes it can even be filed together with the initial petition.
Those family relationships which are not immediate relatives are called “preference categories.” The people in preference categories must wait until an immigrant visa is available for them before they can apply for one. Every petition filed by a citizen or permanent resident which is approved is given a priority date (generally, it’s the date on or near when the petition was received by USCIS). The US Department of State publishes a visa bulletin every month which lists each preference categories with a date. Immigrant visas are available to anyone in that preference category whose priority date is earlier than the date on the visa bulletin. Waiting for a priority date to become current can take many years.
Once an immigrant visa is available to the intending immigrant family member, other factors such as the person’s US immigration history, criminal history, and current location will determine where he or she qualifies for permanent residency and where the application should be filed – inside or outside of the United States.
It is important that you consult with an attorney who is experienced in US immigration law before filing petition or application with the government. Please visit our webpage for any more questions.
J and Q Visas allow noncitizens to enter the United States in order to exchange artistic, academic, and scientific knowledge and skills, and to share the history and culture of their native countries.
The J Visa is for:
- secondary school, college or university students
- teachers or professors
- research or short-term scholars
- trainees
- nonacademic specialists
- physicians
- camp counselors
- au pairs
- summer students in travel/work programs
- visitors for the purpose of traveling, observing, consulting, conducting research, training, sharing, or demonstrating specialized knowledge or skills, or participating in organized people-to-people programs
Q Visas are for noncitizens coming to the US to provide practical training, employment, and the sharing of the history, culture, and traditions of the person’s home country in the United States.
J Visa General Requirements
A person seeking to obtain a J Visa must demonstrate sufficient financial means to support themselves during the entire length of their stay in the US. They must have the academic training and English language skills necessary to support their participation in their particular program. English skills are not required if the exchange program is designed to accommodate non-English speakers.
Q Visa General Requirements
Q Visa exchange visitors do not need to show financial support because they are paid by their employing sponsor at the rate equal to similarly-employed local domestic workers. The person must be at least 18 years old, and able to effectively communicate information about the culture, history, and traditions of their country.
Medical Education and Training
Noncitizens seeking a J Visa in order to obtain graduate medical education or training must pass the Foreign Medical Graduate Examination in Medical Sciences and possess competent English language skills. They are subject to time limits on the duration of their education or training and are automatically subject to the two-year foreign residence requirement once the education or training is complete. Physicians coming to the United States to observe, consult, teach, or conduct research, and who will have little or no patient care, are not subject to these requirements.
Applying for a J or Q Visa
The J Visa program is overseen jointly by the Department of State and the Bureau of Consular Affairs. Those people seeking J Visas must obtain a Form DS-2019, Certificate of Eligibility for Exchange Visitor Status, prepared by a sponsoring organization designated by the Department of State and the Bureau of Consular Affairs. The Q Visa program is run by USCIS. People wishing to receive Q Visas must have Form I-129, Petition for Nonimmigrant Worker, submitted on their behalf by a sponsoring organization designated by USCIS.
Adjustment of status is the process of applying for an immigrant visa (“green card”) inside the United States. How can an undocumented immigrant apply for adjustment of status?
It is necessary to define an undocumented immigrant as someone who is living and/or working in the United States and either entered illegally or is now out of status.
When an immigrant visa becomes available to an undocumented person (through a family relationship, an employer, etc.) the immigrant will need to identify the appropriate process to pursue in order to apply for the immigrant visa. The visa can be obtained either outside or inside the United States. There are two ways for an undocumented immigrant to apply for permanent residency in the United States and avoid having to return to their country of birth/citizenship.
Immediate Relatives Who Entered Legally
Immigration law allows certain people to apply for adjustment of status regardless of the fact that they are in the US illegally and/or have worked in the US without authorization, so long as the person can prove that they entered the US legally. These people are called “immediate relatives” and consist of:
- Spouses of US citizens
- Unmarried children under 21 years old of US citizens
- Parents of US citizens (citizen must be at least 21 years old)
An immediate relative who is applying for permanent residency through their US citizen spouse, parent, or child and who can prove that they were inspected an admitted at a port of entry by US immigration, has the right to apply for permanent residency by submitting Form I-485 inside the United States.
People Who Are Protected by 245(i)
For those people who entered legally, failed to maintain legal status, but are NOT immediate relatives, and for those people who entered illegally, there is still a possibility of applying for adjustment of status. Section 245(i) of the Immigration and Nationality Act allows such a person to adjust their status to permanent resident if they meet certain qualifications and pay a $1000 penalty fee.
A visa petition or labor certification must have been filed on your behalf on or before April 30, 2001. If the visa petition or labor certification was filed between January 15, 1998 and April 30, 2001, the applicant must prove that they were physically present in the United States on December 21, 2000. If the visa petition or labor certification was filed before January 15, 1998, the applicant does not have to prove that they were in the United States on any particular date.
The person does not have to be seeking an immigrant visa through the petition or labor certification filed before April 30, 2001. That petition or certification can be used as the means to qualify for adjustment of status under 245(i) while obtaining an immigrant visa through a petition filed many years later, for example, by a recently-acquired US citizen spouse.
If someone filed a visa petition or a labor certification for you prior to April 30, 2001, be sure to consult with an experienced immigration attorney in order to determine if you are protected under 245(i).
Not Everyone Who Qualifies to Apply for Adjustment of Status Will Qualify for Permanent Residency
Meeting the requirements to apply for adjustment of status in the United States is only part of the process. The applicant still needs to qualify for permanent residency. Immigration law identifies several things that will bar a person from obtaining permanent residency, including a person’s criminal, immigration, and medical history. It is extremely important that a person consult with an attorney experienced in immigration law before applying for any immigration benefit, including adjustment of status. The consequences of applying for something that you don’t qualify for could be severe, including deportation.
E-28 should be on the top of any filing. 2.3(c)
Primary attorney or notice attorney will receive notices, but all attorneys may make appearances who have an E-28 filed and all attorneys will have the same obligations regardless of whether they are the notice attorney or not. Any attorney with an E-28 on file may file documents. 2.3(e)
Attorneys who change their address or phone number must notify the court on each case in writing. The EOIR change of address form EOIR-33IC should not be used for an attorney change in address or phone number, however a new E-28 is required for each case. 2.3(h)
If a motion to substitute counsel has been filed, no motion to withdraw needs to be filed. Also, since anyone who has an E-28 on file can represent the respondent in the proceeding, we will no longer have to worry about the IJ permitting the substitution before proceeding (See 2.3(e)). 2.3(i)
Appearances “on behalf of” another attorney may be requested. It allows another attorney, of the same firm or not, to appear on behalf of another attorney who has a conflict with the scheduled hearing. The IJ must approve the request. At that hearing counsel appearance on behalf of another attorney may submit documents, but not at any other time, and the primary counsel is not substituted – does not need to file a new E-28. 2.3(j)
The Court does not observe the “mailbox rule.” Documents are not received until they are in the hands of the clerk’s office. 3.1(a) However, documents are served on opposing counsel when they are deposited with the delivery agent. 3.2(c).
Must use separate envelopes for separate matters being filed with the court. 3.1(a)
For non-detained respondents, documents and motions must be filed at least 15 calendar days prior to the master hearing if the attorney would like a response to the motion or documents at or before the master hearing. Reply must be received 10 days after filing with the court or the motion will be considered unopposed. 3.1(b)
For non-detained respondents, documents and motions must be filed at least 30 calendar days prior to the individual hearing. Responses must be filed within 15 calendar days. 3.1(b).
Filing deadlines for detained respondents for all hearings will be set by the IJ depending on the specific situation. My recommendation is to follow the 15 calendar days rule. 3.1(b)
Responses to motions to reopen must be filed within 15 days. 3.1(b).
“Day” means calendar rather than business day. 3.1(c).
Improper or deficient filings may be returned. Deadlines still apply, so correction of the deficiency and return to the court must be done within the filing deadlines. Otherwise a motion to accept late filing must be included. 3.1(d)
If you file by mail and would like a copy with the court’s date and time stamp, you must provide the court with a copy marked “Conformed Copy – Return to Sender.” 3.1(f)
Proof of service is more comprehensive that previously required. Must include the name or title of the person being served, their detailed address, the date of service, means of service, an explanation of the documents being served – not just “the attached” or “the foregoing.” Proof of service may be signed by an agent authorized by the attorney of record, but the filing itself cannot be. 3.2(e)
Specific documents and orders are suggested for different types of filings. For example, an application for relief should be in the following order: E-28 if required, cover page, fee receipt, application, proposed exhibits with table of contents, and proof of service. 3.3(c)
Table of contents and document submissions should be paginated. Subsequent filings should resume pagination. 3.3(c)
Tabs should be letters rather than numbers. 3.3(c)
Each filing should have a cover page, which includes the name and address of the filing party, title of the filing, name and A# of the respondent, type of proceeding, and date and time of the hearing. 3.3(c)
Times Roman 12 point font is preferred, as is double-spacing with single spacing footnotes. 3.3(c)
The party with the burden of proof must submit a criminal history chart if the Respondent has any criminal issues. The chart must include the arrest date, court docket number, charge, disposition, and a discussion of the immigration consequences, if any for each offense. The chart should be paginated to correspond to the criminal record attached to the chart. 3.3(f)
Proposed witnesses lists should include a summary of the testimony and the estimated length of time the direct examination will last. 3.3(g)
Prehearing briefs and subpoena instructions are included. 4.19(c), 4.20
All motions must be accompanied by a proposed order. 5.2
Information about bonds, juveniles, FOIA, etc. is also very good.
The appendices are very good – outlined as follows.
A is court addresses
B is EOIR directory
C is Organizational Chart
D is Deadline chart – very helpful
E is for Forms
F is a sample cover page – we all need to be using this
G is Sample Proof of Service – we all should be using this
H is Certificate of Translation – we all should be using this
I is helpful numbers with EOIR
J is a citation format guide – we all should be using this
K is a flowchart describing where to file
L is a sample written pleading
M is a sample oral pleading
N is a sample subpoena
O is a sample criminal history chart
P is a sample table of contents
Q is a sample proposed order
There is also a glossary and an index
If you have any questions, please visit our website at www.gldlaw.com or call us at 1-800-860-4234
In our eagerness to formulate a defense for clients in removal proceedings, attorneys often jump right into the most complex issues of the case, perhaps to our disadvantage. Sometimes the best approach involves an analysis of the basics.
Defending a noncitizen charged with an aggravated felony is a complicated and stressful undertaking. The area of aggravated felonies in immigration law can be a hodgepodge of conflicting case law which often means the outcome is determined by the jurisdiction in which you practice. Often the only course for defense is to deny the ground of removal and litigate whether the allegations constitute an aggravated felony or not.
The first of the various aggravated felonies found in section 101(a)(43) of the Immigration and Nationality Act is “murder, rape, or sexual abuse of a minor.” Apart from being an aggravated felony, it is a serious and heinous offense which describes child murders, child rapists, and child molesters. However, the reality is that ICE has not limited themselves to those just those monstrous offenses when it comes to charging noncitizens with aggravated felonies under that section. ICE has successfully brought this charge against noncitizens with convictions that have nothing to do with child murder, rape, or sexual abuse.
“Sexual abuse of a minor” has been expanded to include criminal convictions where the noncitizen used the internet to arrange a meeting with an underage person for the purpose of engaging in sexual activity, except the underage person is really an undercover police officer. It is disturbing to know that adults troll the internet looking for teenagers to have sex with. But when the noncitizen adult in question never actually had any contact with a minor, virtual or otherwise, and no actual minor was harmed by the noncitizen’s actions, should the noncitizen suffer the same immigration consequence as someone who has actually molested, raped, or murdered a child?
Congress defined certain aggravated felonies in terms of other federal statutes, such as the United States Code, the National Security Act, or the Internal Revenue Code. For example, crimes of violence under INA § 101(a)(43)(F) are defined by 18 U.S.C. § 16, and crimes related to child pornography are defined by 18 U.S.C. §§ 2251, 2251A, and 2252. The aggravated felony of murder, rape, or sexual abuse of a minor under INA § 101(a)(43)(A) is not defined in this or any other way. The statute simply states “murder, rape, or sexual abuse of a minor.”
I recently represented a legal permanent resident, we’ll call him John Smith, in removal proceedings. John was admitted as an LPR over ten years ago. In 2008 he was convicted of the offense of Online Solicitation of a Minor in violation of section 33.021(b) and (c) of the Texas Penal Code (hereafter “TPC”). The statute states in pertinent part:
(b) A person who is 17 years of age or older commits an offense if, with the intent to arouse or gratify the sexual desire of any person, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:
(1) communicates in a sexually explicit manner with a minor; or
(2) distributes sexually explicit material to a minor.
(c) A person commits an offense if the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person. Tex. Penal Code § 33.021 (b)(c)
For the sake of context, John had not left the US since his entry in the 80s, even after becoming a lawful permanent resident. He received a sentence of 180 days in jail and placed on probation. He has no prior criminal record and has been detained since his arrest for the offense. His entire family lives in the US. He is single and is incredibly remorseful for what has happened. I am confident that he will never be involved in anything like this again.
This context is important because DHS could not remove John any other way – he only has one offense and it was committed more than 5 years from admission, so the one crime involving moral turpitude ground in INA §237(a)(2)(A)(i) does not apply. His sentence was only 180 days, so he is not an aggravated felon under the crime of violence provision in INA §101(a)(43)(F) (although there may be an argument that his offense was not a crime of violence). The only way DHS could remove John was if they could somehow fit an offense that involved no sex, no abuse and no minor into the aggravated felony ground of sexual abuse of a minor.
A superficial examination of the plain language of the sexual abuse of a minor aggravated felony ground would seem to leave little room for interpretation. A person convicted of an offense involving the sexual abuse of a person, where that person is a minor, is also guilty of committing an aggravated felony under INA § 101(a)(43)(A). John’s offense, which does not involve the sexual abuse of a person, and where a minor need not be involved in any way, does not seem to fit the description of “sexual abuse of a minor.” Yet the Department of Homeland Security maintains that John’s offense is aggravated felony sexual abuse of a minor; and they have argued this expanded interpretation successfully.
Any conviction, federal or state, felony or misdemeanor, can be the basis for this ground of removability. INA § 101(a)(43)(A) does not mention a minimum punishment or reference another statute for guidance. As one can imagine, there are a wide variety of offenses across the fifty states and the federal code that punish offenses perpetrated against children. Some of these offenses can absolutely be characterized as “sexual abuse”; others are not so clear-cut. Congress did not provide a definition in the statue so the courts have done so instead.
The BIA has cited 18 U.S.C. § 3509(a)(8) as a “guide” for determining which offenses can be characterized as “sexual abuse of a minor”. Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (BIA 1999). 18 U.S.C. § 3509(a)(8) states that “the term ‘sexual abuse’ includes the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another person to engage in, sexually explicit conduct or the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children.” In the BIA case Matter of Rodriguez, the majority opinion reasons that because the term “child abuse” is generally understood to include actions or inactions which may not require physical contact, so may “sexual abuse” occur in the absence of physical contact. Id. at 996.
Matter of Rodriguez had a limited scope; it specifically addressed the issue of whether a person who exposes their genitals to someone under 17 years of age with the intent to sexually gratify or arouse any person has committed sexual abuse of a minor under INA § 101(a)(43)(A). The BIA concluded that sexual abuse of a minor includes psychological abuse inflicted through the exhibition of genitalia. Id. at 992-993. The BIA did not address what, if any, psychological abuse could be inflicted on a minor through electronic communication over the Internet.
John’s offense is not comparable with the offense at issue in Matter of Rodriguez. John was convicted of a computer crime. The noncitizen in Matter of Rodriguez was convicted of a sexual offense under Chapter 21 of the TPC. John violated a statute which is not classified as a sexual offense under Chapter 21 or as an assaultive offense under Chapter 22 of the TPC. John’s offense is not even in the same Title as other offenses against the person, but rather in Title 33 of the TPC covering offenses involving the use of computers.
In John’s case, DHS’s position is that the mere act of soliciting a minor for the purposes of engaging in sexual activity constitutes sexual abuse. In other words, if you are an adult and you do nothing more than ask a minor if they wish to have sex with you, then you have sexually abused that minor. Additionally, the means of communicating the desire to have sex with the minor is irrelevant – whether it was in person or through a message appearing on a computer screen, it is sexual abuse of a minor. Furthermore, if the person you communicated with was not even an actual minor, but merely someone pretending to be a minor (such as an undercover police officer), it is sexual abuse of a minor for aggravated felony purposes.
Due to the myriad of jurisdictions which define “minor” in different ways, the issue has arisen in removal proceedings as to who can properly be characterized as a “minor”. 18 U.S.C. § 2243(a)(1) defines a minor as someone who “has attained the age of 12 years but has not attained the age of 16 years.” Thus under this definition a 16 year old would not be a “minor”. Compare that to the offense in Matter of Rodriguez, where a minor is defined as someone under 17 years of age. According to that definition, a 16 year old would be a “minor.” It was inconsistencies such as these which prompted the BIA to define “minor” for the purposes of classifying an offense as sexual abuse of a minor under INA § 101(a)(43)(A). The BIA stated that “minor” is defined as a person under the age of eighteen. Matter of VFD, 23 I. & N. Dec. 859 (BIA 2006).
In Matter of VFD, the BIA was dealing with the other side of the issue. In that case, the noncitizen was convicted of sexual assault. The victim of that crime was a 17 year old. The state statute under which the noncitizen was convicted defines minor as a person under the age of 17, meaning that under state law the noncitizen was not convicted of sexual assault of a minor. So, the central question in the case was that if the state did not define the victim as a minor, how could BIA? As stated above, BIA resolved this issue by defining a “minor” for sexual abuse of a minor aggravated felony purposes as a person under the age of eighteen.
So if the BIA has defined “minor” as a person under 18 years old, how is that John, who never communicated with a person under 18 years old, but rather with a police officer merely pretending to be under 18 years old, was nevertheless charged as an aggravated felon under INA § 101(a)(43)(A)? Can the government have it both ways? The answer lies in the Seventh Circuit case Hernandez-Alvarez v. Gonzales, 432 F.3d 763 (7th Cir. Dec. 28, 2005).
In Hernandez-Alvarez, the noncitizen was convicted of indecent solicitation of a child in violation of 720 ILCS 5/11-6(a)2000 (an Illinois criminal statute). The Court found that this offense constituted the attempted sexual abuse of a minor aggravated felony under INA § 101(a)(43)(U), even though the person solicited was an adult police officer rather than a minor. The Seventh Circuit’s dismissed Mr. Hernandez-Alvarez’s argument that his offense could not possibly be classified as sexual abuse (or attempted sexual abuse) of a minor because the “minor” in question was in fact an adult police officer.
The Court’s reason for dismissing this argument was conclusory and not based on sound legal reasoning. In their opinion, the Court stated that the crime of attempted criminal sexual abuse under Illinois state law (which was not the crime of which Mr. Hernandez-Alvarez was convicted), and other analogous federal crimes specifically disavow the defense of impossibility. The Court then “[extended] this line of reasoning to the immigration context” in order to dismiss Mr. Hernandez-Alvarez’s argument.
The Court gives no legal reason why the fact that a person is statutorily prevented from defending themselves against state and federal criminal attempt charges by claiming that it would have been impossible for them to complete the offense attempted, means that a person is also prevented from defending themselves against classification as an aggravated felon for sexual abuse of a minor (a civil proceeding) by pointing out that there was no actual person under the age of eighteen involved in the offense. Or why the inability to raise an impossibility defense against state and federal criminal attempt charges relieves the U.S. Department of Homeland Security from establishing by clear and convincing evidence that the sexual abuse victim was indeed a minor under the age of eighteen.
Hernandez-Alvarez was the meat of DHS’s argument against John. I felt that the legal conclusions reached in that case were deeply flawed, and moreover, Hernandez-Alvarez was a Seventh Circuit case that was not binding on the Fifth Circuit where John’s removal proceedings were held. Further weakening Hernandez-Alvarez was the fact that the BIA case Matter of VFD, a precedent decision, stating that a “minor” was someone under the age of 18 for the purposes of the sexual abuse of a minor aggravated felony, was decided after Hernandez-Alvarez and was binding in John’s jurisdiction.
My strategy was to admit the allegations against John (that he was convicted of the crime of online solicitation of a minor) but to deny the ground of removability (that the conviction constituted sexual abuse of a minor). My legal arguments for denying the aggravated felony charge were based on the fundamentals of immigration aggravated felony defense: the categorical approach. When applying a formal categorical approach, a noncitizen’s conviction cannot be deemed to constitute an aggravated felony under INA § 101(a)(43) if the minimum conduct necessary to achieve conviction under the criminal statute does not fall within the description of the relevant aggravated felony.
For example, if a noncitizen is convicted of an offense which lacks as an element the use of force, then that conviction does not constitute a crime of violence under INA § 101(a)(43)(F), whose definition requires the use of force. If the criminal statute in question is divisible and some offenses may be aggravated felonies and some may not be, the modified categorical approach calls for the review of the record of conviction to determine if the noncitizen was convicted of an offense that could be classified as an aggravated felony.
In the Fifth Circuit, the formal categorical approach is used to determine whether an alien’s conviction constitutes an aggravated felony under the INA § 101(a)(43). “To determine whether an alien’s guilty plea conviction constitutes an aggravated felony for removal purposes, we apply a “categorical approach,” under which we refer only to the statutory definition of the crime for which the alien was convicted (rather than attempt to reconstruct the concrete facts of the actual criminal offense) and ask whether that legislatively-defined offense necessarily fits within the INA definition of an aggravated felony. Larin-Ulloa v. Gonzales, 462 F.3d 456, 462 (5th Cir. 2006) (emphasis added).
The statute under which John was convicted describes conduct involving a “minor.” The term “minor” as it is used in TPC § 33.021 is defined as:
(a) In this section:
(1) “Minor” means”:
(A) an individual who represents himself or herself to be younger than 17 years of age; or
(B) an individual whom the actor believes to be younger than 17 years of age. Tex. Penal Code §§ 33.021(a)(1)(A) and
(B)
Although the criminal statute at issue in John’s case does mention a “minor,” the term “minor” as defined in the statute can include anyone of any age. A finding of the age of the victim is not necessary in order to obtain a conviction under the statute. Thus, one of the elements of sexual abuse of a minor as defined by Matter of VFD, that the minor be under the age of 18, cannot be met. Therefore, the statute does not constitute sexual abuse of a minor.
The formal categorical approach, when applied to the criminal statue of the Respondent’s conviction, does not invite further inquiry into the record of conviction; further analysis is superfluous. For the sake of argument, however, even if a modified categorical approach were applied (wherein the record of conviction is examined in order to determine whether the noncitizen’s conviction constitutes an aggravated felony) the result would be the same.
Under a modified categorical approach, the criminal statute of John’s conviction still cannot be classified as the sexual abuse of a minor because nothing in the record of conviction establishes the age of the “minor” in question. The charging document in John’s criminal case states that the he solicited “Jane Doe, a person the defendant believed to be a minor younger than seventeen (17) years of age.” (Emphasis added.) That the Respondent believed the “minor” to be under seventeen years of age is irrelevant. The government has the burden of proof to establish that the “minor” was in fact a person under the age of eighteen in order to establish the aggravated felony of sexual abuse of a minor.
In applying the categorical approach to my case, I reasoned that the criminal statute under which my client was convicted contains a definition for the word “minor” wherein the age of the minor cannot be determined from the statute. I also argued that because the age of the “minor” cannot be determined from the record of conviction, a modified categorical analysis would produce the same result. I argued that the Seventh Circuit case is not controlling in the Fifth Circuit, where my client’s proceedings were held, and so the Hernandez-Alvarez case could only be considered persuasive authority at best.
I argued that Matter of VFD was decided by the BIA after Hernandez-Alvarez and if the BIA wanted to take the Seventh Circuit’s reasoning nationwide, they needed only mention Hernandez-Alvarez in their decision. The BIA in Matter of VFD could have easily carved out an exception to their definition of “minor” to include police officers posing as a person under the age of eighteen in addition to people who are actually under 18 years of age. Yet the BIA chose not to do this. I argued that Matter of VFD controlled, and that the government had to prove via clear and convincing evidence that John’s conviction constituted sexual abuse of a person under the age of eighteen – a thing which it was impossible for them to demonstrate.
The Immigration Judge did not agree with me. He stated in his oral opinion that the mere use of the term “minor” in the statute of conviction meant that the respondent’s offense constituted sexual abuse of minor. The judge utterly ignored the definition of “minor” as that term is used in the statute of conviction at issue. I still believe I followed the best strategy for defending my client against the charges DHS brought against him. I am bolstered in my belief by the weakness of the Immigration Judge’s legal reasoning that led to his willfully obtuse decision. John’s case is currently on appeal to the BIA.
It remains to be seen whether my fundamental analysis of the categorical approach ultimately succeeds. However, a Fifth Circuit case which argued for a fundamental analysis of a landmark case, Chevron U.S.A., Inc. v. National Resources Defense Council, Inc., 467 U.S. 837 (1984), already has succeeded. Tune in later for more details, if you are interested!
On another front, recently the 5th Circuit has turned the issue of whether or not Adjustment of Status is an admission as defined in INA 101(a)(13)(A) on its ear – using a plain language reading of the statute. An “admission” has a specific definition in immigration law. “The terms “admission” and “admitted” mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” Yet, through case law, DHS has expanded that definition to include a person’s post-admission adjustment of status as an “admission.” This is quite significant when one realizes all the important statutes within the INA, such as sections 237 and 212, which include the date of admission as an element.
INA § 237(a)(2)(A)(iii) describes deportability for the conviction of an aggravated felony crime at any time after “admission.” Attorneys have argued that certain LPRs were never been admitted; in situations where someone entered the US without inspection and then later adjusted their status to that of permanent resident, this person would have never been inspected and authorized to enter the U.S. by an immigration officer, thus, they have never been “admitted.” For the purposes of removal under INA § 237(a)(2)(A)(iii), the person has therefore not committed an aggravated felony after “admission.” The BIA rejected this argument in In re Rosas-Ramirez, 22 I. & N. Dec. 616 (BIA 1999), and interpreted “admitted” for the purpose of section 237(a)(2)(A)(iii) to also include adjustment after admission.
Since that decision, both immigration attorneys and DHS have simply proceeded as if adjustment of status counts as an “admission” everywhere that term exists in the INA, even though the Rosas case clearly limited the BIA’s expansion of the term “admission” to one specific section of the INA.
Now, in the Fifth Circuit case Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008), someone has successfully challenged the notion that an “admission” necessarily includes “adjustment.” Mr. Martinez first entered the US as a tourist in 1980. He adjusted his status to permanent resident in 1990. In 2001 he plead guilty to an offense which constitutes an aggravated felony. Not only did this conviction make him subject to removal, the government argued that it made him ineligible to seek a 212(h) waiver. Conventional wisdom held that the government was right; an aggravated felon is ineligible for a 212(h) waiver. Mr. Martinez argued otherwise.
The relevant language of INA § 212(h) states, “No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States.”
Mr. Martinez argued that a person who is “admitted to the United States as an alien lawfully admitted for permanent residence” is different than a person who adjusts their status to that of permanent resident sometime after their admission to the United States. Thus, those permanent residents who are admitted to the United States as permanent residents and subsequently commit an aggravated felony are precluded from 212(h) relief. But those permanent residents who adjusted their status – who where not admitted to the United States as permanent residents – are distinguishable and therefore are not barred. The Fifth Circuit agreed with Mr. Martinez and ruled that he was eligible to pursue a 212(h) waiver.
The Court’s decision to contradict the creed that adjustment of status always counts as an “admission” was based on a basic analysis of Chevron. Chevron deals with the manner in which courts can resolve ambiguity in statutes. Under Chevron, if a statute is ambiguous, an agency’s reasonable interpretation of the ambiguity will be given deference by the court. In Martinez, DHS directly argued for deference and took for granted that 212(h) is ambiguous. The Court, however, did not get ahead of itself. Before it looked to whether the agency interpretation was reasonable and therefore worthy of deference, they first looked to whether an agency interpretation was necessary in the first place. According to Chevron, “[i]f the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron at 842-43.
The Fifth Circuit reasoned that INA § 212(h) is unambiguous in precluding applicants “admitted to the United States as an alien lawfully admitted for permanent residence” and that the definition of “admitted” in INA § 101(a)(13) is also unambiguous in requiring a physical entry into the U.S. as an element of that admission. Because adjustment of status does not involve an “entry,” the Court reasoned that adjustment of status cannot be considered an “admission” just looking at the plain language.
DHS panicked and filed a request with the Court that the holding be limited only to the context of 212(h) waivers. That request was granted, but it makes no sense to limit it in such a way. After all, the Court was interpreting INA §101(a)(13), not §212(h) and made all of its analysis relating to its plain language reading of §101(a)(13).
Ultimately, the Court’s decision is only binding on the Fifth Circuit, and in some contexts could be used against a noncitizen who tries to file for Cancellation of Removal after an adjustment of status and no subsequent entry – as an example. What I take from the case is that a simple Chevron argument can work. We can and should continue to litigate cases in the Fifth Circuit and make arguments that put DHS to the test and force them to meet their burden rather than just caving in. We should recommit ourselves to zealous and bold representation of our clients, taking hope that the right thing can happen but only if we take action.
In these troubled economic times, employers are having to take drastic steps to survive. As unemployment continues to rise in the US, many H-1B nonimmigrant visa holders will likely find themselves without a job and looking for answers. Following is a general discussion of the options available to H-1B nonimmigrants who become casualties to the economic downturn.
The first thing you should know as an H-1B nonimmigrant is that your employer is required to pay your way home if you are terminated. That does not mean you can walk into the CEO’s office and demand the cost of a plane ticket home in dollars. But if you are leaving the US, your employer is required to pay your way home – but only if you are leaving. Have them review the H-1B Petition and Labor Condition Application, which they signed and submitted, very carefully, and they will see that they agreed to do this at the time of filing.
If your H-1B Petition was “cap subject,” meaning that you had to qualify for the approval through the lottery selection system when your original H-1B petition was filed, then you have the right to transfer that H-1B Petition to another H-1B employer. There are some limitations to transferability. First, the position being offered must qualify as an H-1B job. It must be professional in nature and require a specific Bachelor’s or higher degree for entry into the position. You can reasonably assume, although this is not a certainty, that if you are being offered a similar position to the H-1B position you were in most recently, the position will likely be considered an H-1B job.
Second, you should file the H-1B transfer within 60 days of your last paycheck, preferably 30 days and preferably the regular paycheck and not the severance paycheck. Technically, an H-1B nonimmigrant is out of status the day he or she is terminated. A person who is out of status cannot change or extend his or her nonimmigrant status. USCIS has an unwritten practice of granting extensions or changes of status to H-1B nonimmigrants who file within 60 days of the date of the last paycheck. This could change at any time, but it has historically been the practice. Look for a new job fast!
Third, there is some discussion on the wires about filing to change status to F-1 student, B-2 visitor and the like to give a person more time to seek new H-1B employment. The idea would be to then have the new employer file a new H-1B petition while the F-1 or B-2 application is pending. There is a serious issue with this practice. Several years ago, the government stopped permitting “bridging” status through a policy memorandum issued out of headquarters. “Bridging” is the practice of filing an extension of change of status and then while that extension or change is pending, filing another one.
For example, a B-2 nonimmigrant visitor comes to the US and receives permission to be in the US for six months. Before the six month period expires, the person files for an extension of status for an additional six months. While that extension request is pending and after the initial six month entry period has expires, the person files another application seeking to change status to F-1 student. In the old days, the immigration service would have considered the change of status to F-1 a permissible filing because the extension request was pending. This was called “bridging” of status.
The immigration service has stopped permitting bridging. So, the only way to make bridging work is to finish the bridge before crossing it. What I mean it, the interim status application, whether it is a change of status application to B-2 visitor or F-1 student, must be granted so that the person has a new status at the time the H-1B transfer is filed. Problem is the immigration service frequently takes longer to adjudicate a change of status to B-2 visitor than the maximum period requested, meaning the person will still have no status when trying to file for a change back to H-1B. Playing with bridging is like playing with fire. It is complicated and should not be handled without professional help.
Fourth, what options do you have if you worked for a government research institution, a US university or other employer that is exempt from the H-1B quotas? You have not taken a visa from the quotas, unless you did with a previous employer, and therefore will not be able to transfer into a position that is subject to the H-1B quotas. Options are limited, but if you happen to be laid off before and close to April 1 of that year, you will have a good chance of obtaining a visa from the quota to start work October 1 of that same year for a cap subject employer.
Finally, what is one to do if no job is found within the 60 day period from the termination of employment? Understand that as long as you do not leave the US for more than 1 year, you will always have the H-1B visa from the quotas. As stated above, an H-1B nonimmigrant is out of status the day he or she is terminated. But a person is not unlawfully present in the US until the government terminates the status (i.e. through removal proceedings or a change of status application denial) or the person’s I-94 status document expires.
Unlawful presence has consequences to a person’s ability to obtain a visa from the US consulate. Being out of status by itself does not. When someone is unlawfully present in the US for more than 180 days, that person cannot come back to the US for 3 years. The inadmissibility period increases from 3 years to 10 years if the person is unlawfully present in the US for more than 1 year.
With those points in mind, what happens if the I-94 status document is unexpired, the government has not terminated the I-94, and it has been more than 60 days from the last paycheck when you find a new employer. The employer will file a new H-1B Petition without requesting a change or extension of status. You will take that approval to the US consulate, obtain a new visa, and reenter the US to go back to work. Or if you already have an H-1B visa in the passport, even with a different employer, you may take the new petition approval, leave the US and reenter with a new I-94 to go back to work. If you are Canadian, you are H-1B visa exempt, so it will just be a matter of taking a trip out of the US and reentering legally with your passport and the new petition.
However frustrating and difficult it is to be laid off, being an H-1B compounds the anxiety. But as explained above, there are options. So, keep up hope and happy new job hunting!
Garry Davis is an attorney with the Law Offices of Garry L. Davis, PC. He is licensed to practice law in Texas and is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. You can find him at www.gldlaw.com.
As an immigration lawyer, I frequently have to deal with issues arising from taxation of non-US citizens. We must submit tax returns to support various types of applications, including family or business sponsorship and to survive deportation from the US. This article will focus on tax issues in family sponsorship situations, with one exception: filing as the spouse of a US citizen creates its own issues that are best addressed in its own article.
A foreign national may be sponsored for permanent residence by a US citizen or Lawful Permanent Resident spouse, by a US citizen parent, by a Lawful Permanent Resident parent if the person is single, and by US citizen brothers and sisters. Once the sponsorship “petition” is filed, the person has a place in line to wait for a visa under the annual quotas. This place in line is called a “priority date.” When a visa becomes available under the quotas based on the priority date, the sponsor must submit tax returns to demonstrate that they have sufficient income to support the relative coming to the US. The critical number used to establish this is the sponsor’s adjusted gross income from the 1040 form.
The sponsor’s AGI must exceed 125% of the poverty guidelines as set by the US Department of Health and Human Services for that sponsor to qualify. The required income amounts are listed on the US Citizenship and Immigration Services Form I-864P, which can be found under the forms and fees section of www.uscis.gov. For a household of 2 people, which would be a single person sponsoring one immigrant with no children to either person, the required AGI on the most recent tax year’s 1040 form is $17,500 for 2008. That will have to be documented with the 1040 form itself and with a W-2, 1099 or relevant schedules from the 1040 form, in addition to current proof of business ownership or employment.
If the sponsor does not have sufficient AGI, then the immigrating relative will have to find a US Citizen or Lawful Permanent Resident to be the financial co-sponsor on the case. A co-sponsor is not required to be related to the sponsor or the immigrating relative, but must meet the AGI requirements independently. In other words, the law does not allow us to cumulate the sponsor’s and the co-sponsor’s incomes to meet the requirement.
In the event a sponsor cannot meet the income requirement, assets may be factored into the analysis. For assets to qualify the sponsor, they must be reasonably liquefiable within 12 months, and must be valued at 5 times the income deficiency. So, for example, a single person sponsoring one relative who had zero AGI on the most recent tax return could still qualify as a sponsor if he or she could show $87500 in currently owned assets. These would include a house with that much equity, cards, funds in bank or investment accounts, even household items, but only if the value can be conclusively demonstrated. For more information please visit my website at www.gldlaw.com.