Kennedy's Immigration Law Report : Iowa Immigration Lawyer & Attorney : Austin Kennedy : Brick Gentry Law Firm : Green Cards, Permanent Residency

The Immigration Policy Center (formerly American Immigration Law Foundation) is a great organization that provides highly valuable practice advisories to immigration lawyers while also lobbying for pragmatic immigration laws and providing a vitally sane voice on the economic and cultural impact of immigration in the United States.   In other words, an important part of their mission is to disseminate quality, objectively verifiable information that disputes common myths about immigration here in the U.S.

To this end the IPC has recently released the result of research and analysis which shows immigrants, Latinos, and Asians are clearly an important part of Iowa's economy, labor force, and tax base.  Immigrants and their children are a growing economic and political force as workers, consumers, taxpayers, and entrepreneurs.  Immigrants and their children will continue to play a key role in shaping the economic and political future here in Iowa. 

Highlight's from IPC's research and analysis include: 

• In 2007 Iowa was home to 117,437 immigrants;
• 34.5% of immigrants in 2007 (or 40,473 people) in Iowa were naturalized U.S. citizens who are eligible to vote;
• Latinos accounted for 4.0% (or 119,522) and Asians 1.6% (or 47,809) of Iowa's total population in 2007;
• The 2008 purchasing power of Latinos totaled $2.4 billion and Asian buying power totaled $1.7 billion in Iowa in 2007;
• Unauthorized immigrant families in Iowa paid between $40 million and $62 million in state and local taxes in 2007;
• If all unauthorized immigrants were removed from Iowa, the state would lose $1.4 billion in expenditures, $613.4 billion in economic output, and approximately 8,819 jobs. 

As you can see, Iowa isn't the homogeneous state many assume it to be.  Immigrants' economic, cultural and political impact on Iowa will only continue to grow in the coming years. 

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This is Part 1 of the on-going "Love Knows No Border" series, where we'll take a look at the various immigration approaches couples can take to allow their loved one to gain access to the United States so the couple can be together in the United States.  With this first installment of the series, we'll examine the K-1 visa, commonly known as the fiancée visa.  To keep things relatively simple, we'll use the term "fiancée" to mean either a man or a woman.  The K-1 non-immigrant visa category permits the fiancée of a U.S. citizen to enter the United States for a 90-day period of time to marry the U.S. citizen and apply for permanent residence. 

A K-1 visa can be issued only after the applicants have proved the following three key elements:

1. the parties have previously met in person within two years of the date when they filed the petition (unless a waiver is granted);
2. the parties have a bona fide intention to marry; and
3. the parties are legally able and actually willing to conclude a valid marriage in the United States within 90 days of the K-1 fiancée's entry to the United States.

Each of these three requirements is discussed below. 

The "Previous Meeting" Requirement

In order to be eligible for K-1 status, the law requires that the couple must have met in-person within the two years prior to the filing of the petition.  Meeting over the internet, either by video or email or over the telephone, typically will not suffice.  The "previous meeting" requirement may be waived upon proof that compliance would:  a) result in extreme hardship to the petitioner; or b) violate strict and long-established customs of the beneficiary's foreign culture or social practice (ie., this is typically, but not always, an 'arranged marriage' situation). 

The "Freedom to Marry" Requirement

Both parties to the intended marriage must demonstrate that they are both free to marry and that they in fact intend to enter into a valid marriage within 90 days following the fiancée's entry into the United States.  In terms of being 'free to marry', both individuals must demonstrate that they're not currently married to someone else.  If one or both of the parties have been previously married, they'll have to provide proof that the previous marriage has been legally dissolved (ie., divorce).  In addition, the parties will have to prove that there is no law which would prohibit the wedding from occurring.  For example, issues related to age or gender may prohibit certain individuals from being married in the United States. 

The "Bona Fide Intention to Marry" Requirement

Rightly or wrongly, the U.S. government casts a skeptical eye toward marriages between U.S. citizens and foreigners.  When evaluating a petition for K-1 status, the government starts from the position that they believe the marriage is occurring illegally for immigration benefits.  Therefore, in order to overcome this presumption, the applicants must prove the "bona fides" of their relationship and intent to be married.  In other words, they must prove that their love is real, and the marriage is occurring for no reason other than the couple's legitimate desire to be together. 

The U.S. government deals very harshly with those that are found to have entered to a "sham marriage" for immigration benefits.  Both parties to a sham marriage can be prosecuted criminally.  In other words, the penalty can apply to the person coming from abroad and/or to the U.S. citizen.   

Admission to the United States

K-1 non-immigrants are admitted with a single entry visa for 90 days to marry the U.S. citizen petitioner.  If the K-1 fiancée actually does marry the U.S. citizen petitioner within 90 days of entry, then the K-1 fiancée is eligible to apply for adjustment of status to permanent residency.  If the marriage does not occur within 90 days, the K non-immigrant must leave the United States.  If the marriage does not occur and the person in K-1 fiancée does not depart from the United States, the person can be removed (ie., deported). 

In summary, the K-1 visa is one  tool couples can utilize to bridge the divide and begin a life together in the United States.  That said, the 90 day window of time feature of this particular visa does create some logistical hurdles.  As a recently married man, I can attest to how daunting it would be to have to produce a wedding within 90 days.  But it certainly isn't impossible, and it does allow the foreign fiancée to adjust status fairly quickly to that of a permanent resident, which is a pretty huge benefit.  All in all, the K-1 visa is one option that should be considered when one half of the couple is living abroad and the other is a U.S. citizen.   Check back soon for Part 2 of the "Love Knows No Border" Series, where we'll discuss the K-3 visa. 

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On Monday the New York Times posted an interesting piece detailing the story of Hosam Husein Smadi.  Mr. Smadi was recently arrested in connection with a plot to allegedly blow up a Dallas skyscraper.   Mr. Smadi had been illegally in the country for a quite a while, and should have been removed long ago. 

Mr. Smadi's story highlights what administration officials fear is a common immigration situation--every year millions of people use a temporary visa to gain entry to the United States, but the government suspects that thousands of them never leave.  Mr. Smadi appears to have been one of these people. 

Since 2004 the U.S. government has put systems in place to check all foreigners as they arrive, no matter how they arrive.  Customs officers now take fingerprints and digital photographs of visitors from most countries, and instantly compare them against law enforcement watch list databases.

In addition to the biometric measures, most entrants are also given something called an I-94 card.  The I-94 card is a small square card that is supposed to be stapled into the person's passport.  The I-94 card is supposed to record and reflect when and where the person arrived in the United States, and also present a date that says when the person is supposed to exit the United States.  Then, when the person actually departs from the United States, they're supposed to turn the I-94 card back over to the government officials.  The NY Times piece says that this check-out procedure often doesn't happen. 

In fact, last year alone, 2.9 million foreign visitors on temporary visas like Mr. Smadi's checked into the United States, but never formally checked out.  Some or perhaps most of these people may actually have vacated the country but failed to turn over their I-94 card.  That said, the government has no way to be certain.  Overall, government officials believe 40 percent of the estimated 11 million illegal immigrants currently in the U.S. came on legal visas and overstayed.  The government has a very difficult time tracking these people down.  

Obviously this situation brings about serious security concerns.  But homeland security officials say that a series of pilot programs operating since 2004 have failed to yield a reliable exit monitoring system for the whole nation.  Apparently they have not yet found the technology to support speedy exit inspections at land borders.  Last year airlines balked at an effort by the Bush Administration to make airlines responsible for taking fingerprints and photographs of people exiting the U.S.  So, in the meantime, the quest for a universal exit monitoring system continues. 

Law enforcement agencies are left with the unenviable task of trying to weed through the masses to figure out who has overstayed their visa, and whether or not they pose a security threat.  Senator Charles Schumer (D-N.Y.), chairman of the Judiciary Committee's subcommittee on immigration, says he is trying to steer money from the economic stimulus program to build an exit montioring system.    Given this situation's obvious gravity, it's surprising to me that Sen. Schumer's efforts haven't gained more traction. 

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Shahrzad Eram Soleimanlou, of Falls Church, Va., was sentenced last week to 41 months in prison for defrauding her immigration clients of approximately $1 million from June 2000 through December 2005.  She'll be required to pay $1 million in restitution. 

Apparently Soleimanlou's scam involved lying to immigration applicants by telling them that money was required to establish something akin to a bond to demonstrate to officials that the applicants had the financial ability to support themselves and would not become a financial burden on society.  She'd then steal the money and use it for her own purposes. 

Hucksters and scam artists like Soleimanlou have traditionally been and, sadly continue to be, a real problem in the world of immigration law.  Immigration laws are so complex and immigration clients are often so vulnerable that snake oil merchants like Soleimanlou have long exerted a corrosive and parasitic influence on the immigration system.  Obviously they steal immigrants' money and they oftentimes destroy any legitimate claim to relief that might have once existed for an immigrant, but they also damage the reputation of legitimate, hard-working and ethical immigration lawyers.   The more prosecutions of this nature the better for everyone.   Hopefully the new Administration will make such prosecutions an enforcement priority. 

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As many of you know, if an alien wishes to fully immigrate to the United States, the alien is required to submit to an HIV test as part of the overall medical screening process.  Moreover, the USCIS currently has the power to deny visas to those applicants who test positive for HIV or AIDS.  This roadblock also prevents those otherwise already legally located in the United States from adjusting status to a permanent resident if they are determined to have HIV/AIDS, no matter how far along they are in the immigration process.   

This era appears to be nearing an end.  Yesterday the USCIS issued this memo which instructs USCIS officers to place a hold on any green card applications which would otherwise be denied simply because of the applicant's HIV status.  The hold will remain in place until the arrival of the final Health and Human Services rule change, which will completely eliminate the HIV/AIDS ban.

As observers have noted, the guidance memo shows that the Obama administration is very close to a final repeal of the ban, and is now instructing agencies to be ready for a pretty significant change in policy.   

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Over the last 6 months or so I've had the good fortune of having a spate of E investor visa work.  This kind of work is easy to feel good about, not only because it is good business, but because E-1 and E-2 investors directly stimulate the American economy.  At a time when unemployment figures are higher than we'd like to see them, it makes all the sense in the world to have these investors starting companies in the U.S. and hiring employees.  For those who are unfamiliar with the program, I should explain that E-1 and E-2 visa investors have to demonstrate as preconditions for obtaining their investor visas that they have invested a substantial amount of their own money into a U.S. business and that the business will be hiring a certain number of U.S. employees.

Anyway, after having successfully obtained a number of E-2 investor visas over the last couple months, a couple of observations come to mind: 

• First, an informed and well-written business plan is essential.  If the immigrant investor isn't capable of writing a good business plan, then someone needs to be hired to do so.  The plan needs to demonstrate that the business has forecasted reasonable expectations for financial growth and for hiring. 
• Second, the investment capital must be entirely owned and controlled by the intending immigrant.  The investment capital can have been gifted to the E investor, but the capital cannot be in the form of loan proceeds that encumber any of the business property. 
• Third, consulates abroad take a long time to process these applications, so the investor needs to understand that the visa isn't going to be issued over night.  Plus, it is extremely and maddeningly difficult to communicate with the consulate regarding the application.  You can email or call through a third party private vendor service, but it will cost you approximately $25.00 per time.  Plus, and this is a real treat, emails sent through the service have to be very short in length, I believe 200 words or less.  Finally, the consulates routinely send you mysterious faxes that lack any sort of return fax number or other contact information.  So you get the fax requesting additional information or clarification, and then it becomes an expensive race to the FEDEX box. 
• Fourth, make sure the investor hires an accountant.  The investment needs to be clearly documented and explainable to the consulate, and accountants (as you might imagine) excel at such things. 
• Fourth, probably because this is a pretty unique area of the law, many consulate branches abroad seem unaware of the fact that they (ie., the Department of State) have jurisdiction to directly adjudicate the visa.  In other words, the investor does not first have to petition USCIS for their status.  All evidence and application materials can be sent directly to the consulate abroad.    So, a friendly reminder on the front end of the process of their jurisdiction and authority seems to be a helpful icebreaker. 

As you can see, E-1 and E-2 investor visas are a challenging area of immigration law, but also rewarding in a number of ways.  The investors directly stimulate the economy by infusing it with large sums of investment cash, plus they hire U.S. workers.  Makes sense, eh?   

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On July 1, 2009, Immigration and Customs Enforcement (aka, ICE) launched a new, "bold", audit initiative by issuing Notices of Inspection (NOIs) to 652 businesses nationwide.  In comparative terms, these 652 NOIs are more that ICE issued during all of last year.  According to ICE's press release, the notices alert business owners that ICE will be inspecting their hiring records to determine whether or not they are complying with the I-9 employment eligibility verification laws and regulations.  This new initiative is part of the Obama administration's directive to ICE to shift focus away from finding illegal workers and toward efforts to hold employers accountable for their hiring practices. 

Somewhat ominously, ICE's press release also states that the 652 businesses presented with NOIs have been selected as a result of leads and information obtained through other investigative means.  In other words, these audits are specifically targeted, rather than casually random. 

If you receive an NOI from ICE, my best advice is for you to call your local immigration attorney. 

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The NYT editorial board is out today with yet another very strong piece on the wide-reaching economic arguments supporting immigration reform legislation that includes the legalization of the people currently located in the U.S.  without valid immigration status.  The key grafs: 

The unions, at least, understand that there is a better way. They see immigration reform as an issue of worker empowerment. If undocumented immigrants undercut wages and job conditions for Americans — and many do, by tolerating low pay and abuse and bolstering an off-the-books system that robs law-abiding employers and taxpayers — it is because they cannot stand up for their rights.

“Workers don’t depress wages. Unscrupulous employers do,” said Terence O’Sullivan, president of the Laborers’ International Union of North America. Unemployment in his industry is above 21 percent. Nearly two million construction workers are out of work. So what does Mr. O’Sullivan want? Reform that allows immigrants to legalize. “If we can free them so they can come out of the shadows, we can not only improve their lives, but all workers’ lives,” he said.

When framed in terms of the economic benefits to all American workers (especially laborers), rather than nativist misinformation, immigration reform and the legalization of currently undocumented workers just makes sense. 

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On Thursday, April 16, 2009, the DOL published an amendment to its current H-2A visa regulation.  My thoughts and a summary of the new Final H-2A rule can be found here.  The most recent amendment to the Final H-2A Rule states that employers requiring H-2A temporary agricultural workers to start work before January 1, 2010 (rather than July 1, 2009), will file Applications for Temporary Employment Certification in accordance with the transition period procedures in 20 CFR 655.100(b)(2)(2009).  Stated briefly, the transition procedures provide that a prospective H-2A employer should first file its temporary H-2A labor certification application and then conduct recruitment for U.S. workers.  As always, I recommend that everybody read the full text of the new, Final H-2A rule for themselves. 

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