President Declares Ongoing Commitment to Immigration Reform "America - a nation made up of immigrants from every corner of the globe" January 27, 2010
Washington D.C. - In the State of the Union Address this evening President Obama made clear his ongoing commitment to immigration reform noting "we should continue the work of fixing our broken immigration system - to secure our borders, enforce our laws, and ensure that everyone who plays by the rules can contribute to our economy and enrich our nation." Some may continue to argue that immigration reform is too politically risky to move on this year and that we should focus instead on rebuilding our economy. However, comprehensive immigration reform is compatible with economic reform as it would generate needed economic growth, create jobs and increase tax contributions by ensuring that everyone working in the United States is doing so legally. In fact, immigration reform would allow us to take full advantage of the opportunities for economic growth that immigrants bring.
Immigration Yields Tremendous Economic Benefits to America
• A 2007 report from the White House Council of Economic Advisers concluded that immigration as a whole increases the U.S. Gross Domestic Product (GDP) by roughly $37 billion each year because immigrants increase the size of the total labor force, complement the native-born workforce in terms of skills and education, and stimulate capital investment by adding workers to the labor pool.
• Immigrants do not compete with the majority of natives for the same jobs because they tend to have different levels of education and to work in different occupations. In fact, The roughly 90% of native-born workers with at least a high-school diploma experienced wage gains because of immigration between 1990 and 2004, ranging from 0.7% to 3.4% depending on their level of education, according to a 2006 study by Giovanni Peri, Associate Professor of Economics at the University of California-Davis.
• Immigrant entrepreneurs are twice as likely as Americans to start business and immigrant inventors account for more than one quarter of all U.S. patents according the Kauffman Index of Entrepreneurial Activity, 2008.
If Comprehensive Immigration Reform is Enacted the Benefits Will Be Even Greater
• According to a 2010 study by UCLA professor Raul Hinojosa, comprehensive immigration reform that includes a legalization plan for the unauthorized would contribute a cumulative $1.5 trillion to the Gross Domestic Product over ten years, as more tax revenues are collected, wages increase for U.S.-born and legalized workers, and immigrant workers spend more in our economy. The report also finds that wages for immigrant and native-born workers would rise in part because workers will have more bargaining power in the workplace.
• The libertarian Cato Institute also reported that "legalization of low-skilled immigrant workers would yield significant income gains for American workers and households." "Tonight the President paid tribute to those who struggle to build the American dream, even in the midst of economic uncertainty. His call for a revitalized domestic and foreign policy agenda based on American values and innovation included immigration reform because the White House recognizes the economic and moral necessity of fixing our broken immigration system," said Mary Giovagnoli, Director of the Immigration Policy Center. "We have a golden opportunity to enhance the gross domestic product, create and sustain new jobs and businesses, and maintain our competitive edge in the world if we create a system that legalizes current undocumented workers, provides for improved legal channels for families and new workers when they are needed in the future and adopts sensible policies to secure our border. Such measures will help to provide the framework for an economic recovery that will allow us all to pursue our American dreams."
H1B Cap Finally Reached
On December 22, 2009, USCIS announced that it has received a sufficient number of H-1B petitions to reach the statutory cap for FY 2010. United States Citizenship and Immigration Services (USCIS) is hereby notifying the public that December 21, 2009, marked applications will be the last that are processed.
The cap stands at 65,000 applications per year for H1B applicants that are non-exempt and not trying to qualify for advanced degrees. The application process may still continue for exempt employers and those whose minimum job requirements require a Master’s degree or greater.
The delay in reaching the H1B cap has been a true sign of the times. The slow U.S. economy has produced a low demand for the visa applications. In years past, the H1 cap had been reached in one or two days from the initial application date. Indeed, past years had shown that the applications were so far over the quota allowed, that applicants had to be picked at random.
Additionally, H1B employers have been put through the ringer when applying. USCIS overwhelmingly sent out requests for evidence on cases that require extensive documentation of the employer’s ability to pay and necessity for the alien to be employed. Employers who have lay offs have been asked to explain why they would need an alien to work for their company when they have laid off U.S. workers? This process has deterred the investment in applying in the first place.
Unfortunately, the downturn in the economy is in part faulted by the initial restriction in allowing H1B applicants in the first place. The U.S. economy did much better when employers could rely on H1B applicants to come to the U.S. Each applicant then, in turn, “stimulated” the economy. Every approved applicant had a job, bought or rented a home, purchased or leased a vehicle or two, sent his or her children to school, spent on clothes, household goods and services and invested in America. In fact, there was no better way to stimulate the U.S. economy than to bring in foreign workers to the U.S. that were guaranteed a prevailing wage and were bound not only spend their money in the United States, but also likely to sell their services abroad in a global economic setting.
Written by:
Sanjay S. Mathur
Attorney at Law
Board Certified - Immigration & Nationality Law
Texas Board of Legal Specialization.
Waiver Granted - Family Re-United
Over eight years ago, when she was a minor, Mrs. G entered the USA without inspection. Now she and her U.S. citizen husband have three children, all under the age of 5. Because of the unlawful entry, however, Mrs. G couldn’t get a green card inside the USA. We helped her with consular processing and a waiver application. The American Consulate in Mexico interviewed her early in June of 2009. Two months later, her waiver was approved and she was reunited with her family in Texas! Result by Mr. Humble.
Admissions Equal Inadmissibility
How to Avoid Inadmissibility Even if Not Convicted
The definition of a conviction under immigration law includes deferred adjudication or “suspended sentences.” Which means if you get “deferred” you are still “convicted” of the offense under immigration law. See 101(a)(48)(A) of the Immigration and Nationality Act “INA”. This is itself problematic as many criminal lawyers advise immigrants that they are not convicted if they accept a plea for deferred.
However, there is an issue with regard to admissibility even if you accept a pre-trial diversion or “memo agreement” that one should consider. Specifically, immigration law allows for a person to be inadmissible even if they simply admit to the essential elements of the offense.
One common ground of inadmissibility fall under the category of “Crimes Involving Moral Turpitude.” This category of crime is loosely worded and is subject to everlasting re-interpretation and litigation. Under 212(a)(2)(i)(I) of the INA, the law states that a person is inadmissible for this broad category of crime. The law states that a person is inadmissible for such a crime if convicted. Recall, that “conviction” also includes deferred adjudication. However, there are also provisions stating that one is inadmissible if the person "admits having committed, or who admits committing acts which constitute the essential elements" of the crime. See INA 212(a)(2)(A)(i). As such, there should be deep concern with any plea agreement, pre-trial diversion agreement or memo agreement that requires an admission or “judicial confession” to a CIMT. This is because if it requires an admission to the commission of the offense, it will thereby trigger the CIMT ground of inadmissibility under the INA.
As such, if one has to admit the essential elements of the offense, one should consider whether or not there admission falls under the "petty offense exception." This exception allows for one conviction or admission to a CIMT, wherein the punishment imposed is not greater than 180 days and the maximum punishment for the offense cannot exceed one year incarceration. See 212(a)(2)(A)(ii)(II) of the INA. It is important to note that this exception applies only to CIMTs. Therefore, if there is another basis for inadmissibility such as drug convictions, prostitution, domestic violence, fire-arms offenses or other categories listed in 212(a)(2) of the INA, the petty offense issues, even if applicable to the punishment, would not apply.
If the crime is solely a CIMT, then it is important to note that the imposition of punishment is calculated by the term a person would have to serve if the punishment was not probated or suspended in some way. This is what criminal lawyers typically consider the client's "exposure" time. Additionally, it is very important that the range of punishment not exceed one year. This means if you are admitting to the offense, you should be careful to explain that you are admitting only to an offense that has a maximum punishment not to exceed (1) year and your exposure time is less than 180 days!
In the context of a pre-trial diversion agreement or memo agreement, there is generally no exposure time. However, there should be clarification of the "range" of punishment. This is especially important if the agreement requires an admission or judicial confession on part of the defendant. This is also true at the time of a reduction from a felony to a misdemeanor. It is common that during the reduction process that the State requires the Defendant to judicially confess to the felony rather than the misdemeanor. It would be important to amend the confession to fit within the guidelines of the “petty offense exception” before allowing the Defendant to complete the plea.
Typically, the regulations require the alien to prove he/she is admissible to the United States. That means it is the defendant’s burden to prove these exceptions, not the government's burden to disprove them. As such, a defendant who will later be apply for immigration benefits should maintain "certified copies" of the "conviction records." This is defined as the plea bargain agreement, transcript of testimony (if applicable) and charging instrument. In the context of a pre-trial or memo agreement, this would normally only include the agreement itself and the information or indictment.
It is imperative that a defendant classifies any admission as being a “petty offense exception” before a plea is entered or a memo agreement or pre-trial diversion agreement is executed. Once completed, if incorrectly executed, a Defendant may become inadmissible or subject to removal and/or later be denied immigration benefits.
Written By: Sanjay S. Mathur
Board Certified - Immigration & Nationality Law
Texas Board of Legal Specialization
www.mathurlawoffices.com
Mr. Mathur is one of the only Board Certified Immigration Lawyers in Texas with over a decade of experience in criminal defense and immigration issues.
Important Basic Points to Maintaining Status as a Resident
Introduction
The Immigration and Nationality Act (“INA”) and the Code of Federal Regulations (“CFR”), govern the maintenance of status. There are also cases that have been decided by the courts that determine what the law means in certain contexts. The resulting “immigration law” is vast. It takes time to review and understand. Experience with government agency can also be an important component of insight as to what may occur with a case. As a result, information contained in web sites should not be used in reliance of what to do. As tempting as it may be to avoid paying legal fees, immigration law relates to person’s life as they know it. It relates to their future and potential not only to be safe from harm and be free, but to prosper. One could say that immigration law is the most important part obtaining the right to “life, liberty and the pursuit of happiness.”
Traveling Out of the U.S.
You may abandon you resident status if you leave the United States. The government of the United States will initially have the burden of proving that you abandoned your status if you leave the United States and are gone for less than 180 days. However, the alien has the burden of proving that you did not abandon your status if the trip is more than 180 days but less than 1 year. If an alien leaves the U.S. and does not enter over a year, the alien automatically loses their LPR status. There are certain applications to prevent this occurrence. It is best to file these applications before you depart.
Admission and Removal
Additionally, you are subject to the terms of admission each time you enter the U.S. with your resident status. Additionally you are subject to all grounds of removal while living here. Although there are many grounds of inadmissibility and removal, too many to cover in this correspondence, remember this, you should not plead to or admit to any criminal charges without first consulting an immigration lawyer.
Even if your application for admission has been approved and you have been a long term resident the wrong plea or admission can cause your denial of naturalization, removal or denial of admission to the United States. Moreover, the term of any sentence, category of crime and whether or not the punishment was “deferred” or “suspended” does not necessarily insulate you from triggering removal, inadmissibility or the denial of naturalization under federal law. We strongly urge anyone charged or accused of a crime to call our office before making any decision on how to handle a criminal charge.
Obtaining Citizenship
Should you maintain your residency in the U.S. continuously and legally, you will be eligible to become a U.S. Citizen. Applications for Citizenship can be filed 3 months ahead of the eligibility date. If you remain married to a U.S. Citizen from the time your LPR status was granted, you are eligible to apply for naturalization after 3 years. If you are not married to the same U.S. Citizen then the eligibility period is 5 years. It is very important to apply as soon as you can. Not only may you include minor children in your application by doing so, but you may also prevent problems with your status in the future. Too often, we seek people who were once approvable as U.S. Citizens end up in removal proceedings, sometimes without the eligibility to fight to stay.
Written by Sanjay Mathur
January 7, 2009
Latest on Immigration Reform
If each month is considered a round in the battle for immigration reform, it's fair to say that we won the month of June. But, it was a close fight for sure. From the beginning of the month when Senate Majority Leader Reid, Speaker of the House Pelosi, and President of the U.S. Obama, all reasserted their support for immigration reform as a top 3 issue priority, to the end of the month when the President hosted a meeting on immigration with key members of the House and Senate, it's fair to say that the momentum is building for the debate and seemingly favoring our position.
According to reports from the June 25 meeting at the White House, the President was clear about his desire to get comprehensive reform done. The meeting did not get in to details about what would be included in a comprehensive reform package; it was more about the politics, and the need for both parties to work on this together. In terms of a time line, debate on legislation should begin later this year or early next year, with both the House and the Senate working on the bill at the same time.
The President, in his remarks after the meeting, said his administration “is fully behind an effort to achieve comprehensive immigration reform,” which includes an “effective way to recognize and legalize the status of undocumented workers who are here.” DHS Secretary Napolitano has been assigned to lead a working group, to meet with leaders in the House and the Senate to start “systematically working through” the various issues making up the elements of reform.
But, the month of June was not all flowers and rainbows in the world of immigration policy and politics. Trusted sources told us today that several anti-immigration amendments are expected to be offered during next week's Senate debate over the DHS Appropriations bill. We absolutely must be ready to Contact Congress next week. The anti-immigrant crowd managed to send nearly 700,000 faxes to Washington during the month of June. We must Contact Congress to express support for real solutions to our broken system, not quick "get tough" enforcement measures. Watch your inboxes next week for action alerts from the AILA Advocacy Dept and follow the links to send messages to Sen. Kay Bailey Hutchison and Sen. John Cornyn!
In the world of immigration regulations another June victory is to be celebrated: The Department of Health and Human Services (HHS) has issued proposed regulations to end the long-standing ban on travel and immigration to the United States by HIV-positive individuals. The regulations, which are expected to be implemented following a 45-day public comment period, would remove HIV from the list of “communicable diseases of public health significance.”
Tomorrow will mark the first day of the next round in the battle for immigration reform. The upcoming Senate debate on DHS Appropriations is going to test our strength as advocates and measure our will to win the round. We can and must show our strength with our united voice. We can and must win.
Tune in next week, same Pulse channel, same Pulse time.
Written By
Jenny Levy
Manager, Grassroots Advocacy
Special Contributor to the Director's Corner
American Immigration Lawyers Association