New York & New Jersey Immigration Lawyer Blog

American families who wish to adopt a child from abroad face an array of challenges. While federal immigration law places few, if any, barriers to citizenship for a child adopted by U.S. citizen parents once the child is in the U.S. and the adoption is complete, the process of actually getting the child to the U.S. can be difficult, depending on the laws of the child's home country. Several countries have instituted bans on intercountry adoptions with the U.S., including adoptions that were in progress. This has prevented some families, who have already met and bonded with the children they want to adopt, from bringing them home.

The AP reported on the "Kyrgyz 65," a group of Americans who are trying to adopt sixty-five children from Kyrgyzstan in central Asia. The adoption process stalled in 2008, when the Kyrgyz government halted international adoptions because of alleged corruption. Kyrgyz government officials were accused of "dealing in what was effectively a trade in children," according to the AP. The situation grew even more complicated in April 2010, when an uprising deposed the country's president, who fled to neighboring Kazakhstan and then to Belarus. Two months later, ethnic violence broke out between Kyrgyz, who constitute the majority ethnic group, and minority Uzbeks.

Kyrgyzstan's new president signed a law in May 2011 establishing new guidelines for adoptions, but much of the law still has not taken effect. The Kyrgyz government shut down adoptions again in July 2012 because of corruption charges. While some of the Americans have given up in the roughly five years since their adoption processes started, about fifteen families continue to travel to Kyrgyzstan to visit the children, and they regularly send letters and packages. The U.S. State Department last updated its adoption information for Kyrgyzstan in June 2011.

Continue reading "American Families Struggle with Foreign Bans on Intercountry Adoptions" »

A New Jersey business has settled with the federal government regarding accusations of failure to verify employees' work eligibility and employment of undocumented or otherwise unauthorized immigrants. After an audit of the company's I-9 employment eligibility verification records allegedly revealed multiple deficiencies, the company reached an agreement with Immigration and Customs Enforcement (ICE) and Homeland Security Investigations (HSI) to pay a fine of $625,000. The case helps demonstrate how the government assesses fines in cases of alleged employment violations.

HSI reportedly received an anonymous tip regarding a Secaucus, New Jersey clothing manufacturer. The tipster claimed that the company was hiring undocumented immigrants who lacked authorization to work in the United States. Federal immigration laws require all employers to complete a Form I-9 for each employee, and to retain that form in their personnel records. The form requests evidence demonstrating the employee's authorization to work in the U.S. This can include evidence of U.S. citizenship, such as a passport, or evidence of legal permanent residence, like a green card. Other forms of identification, such as a driver's license or social security card, may also satisfy the requirements of the I-9 form. Individuals who are not citizens or permanent residents must present a work authorization card or other evidence of immigration authorities' permission to obtain employment in the U.S.

HSI audited the company's I-9 records in March 2012 and said that it found "serious deficiencies" in the company's employment practices. The company and HSI agreed to the $625,000 fine in July. HSI's announcement did not say how large of a fine it initially sought, nor did it provide any information on the alleged number of undocumented immigrants hired by the company.

Continue reading "ICE Fines New Jersey Business Over $600,000 for Immigration Employment Violations" »

The United States Senate passed a bill in August extending the EB-5 Regional Center Program (RCP) for an additional three years. The RCP is a special part of the EB-5 Immigrant Investor Visa Program, allowing qualified immigrants who invest in a business venture and create jobs in designated regions to obtain an immigrant visa. The RCP has existed for twenty years, and was set to expire on September 30, 2012. The extension still requires the House of Representatives' approval and the President's signature.

According to U.S. Citizenship and Immigration Services (USCIS), Congress created the EB-5 program in 1990. EB-5 is a category of immigrant visa available to investors who meet certain investment and job creation requirements. The immigrant must be able to invest at least $1 million in a "new commercial enterprise," defined as a for-profit business venture established after November 29, 1990 or, if established earlier, restructured, reorganized, or significantly expanded after that date. The minimum investment amount is lowered to $500,000 if the commercial enterprise is located in a "Targeted Employment Area," defined as either an area with an unemployment rate of at least 150 percent of the nationwide average, or a rural area located outside a municipality with a census population of at least 20,000.

Continue reading "U.S. Senate Passes Extension of EB-5 Investor Visa Pilot Program" »

The U.S. Department of State (DOS) will open registration for the 2014 Diversity Immigrant Visa Program (DV-2014) on October 2, 2012. The program is also known as the "Green Card Lottery." Registration will remain open until November 3. Prospective immigrants from qualifying countries must submit an application electronically through the DOS website during that time period. Applicants who meet the criteria for the program may then be eligible for one of 55,000 immigrant visas. Selection in the lottery does not guarantee that an applicant will receive a green card, making the overall probability of any individual obtaining a green card through the program rather low.

Congress created the Diversity Visa (DV) program as a way of providing immigration opportunities to countries with low rates of immigration to the United States. It creates a separate class of immigrants, "diversity immigrants," in addition to family- and employment-based immigrants. The first diversity visas were available for the 1995 fiscal year. A total of 55,000 immigrant visas are available through the DV program every year. Available visas are apportioned among six geographic regions: Africa; Asia; Europe; North America; Oceania; and the Caribbean, Central and South America. Beginning in fiscal year 2000, five thousand diversity visas are reserved for use under the program established by the Nicaraguan and Central American Relief Act (NACARA).

Continue reading "Registration for the 2014 Diversity Visa Lottery Program Begins in October" »

The U.S. Department of State (DOS) released its Visa Bulletin for August 2012 on July 31, listing the priority dates for family- and employment-based immigrant visas. These are the visas for people intending to immigrate to the United States and obtain legal permanent residence. The Visa Bulletin provides important information for people who are awaiting a decision on an immigration petition that is subject to an annual quota. Certain immigrant visa petitions, such as U.S. citizens petitioning for an immigrant spouse or minor child, are not subject to a numerical limitation, so they are not included in the monthly Visa Bulletin.

The two major types of immigrant visas listed in the Visa Bulletin are family-based petitions subject to a quota and employment-based petitions. Once a petitioner, typically a U.S. citizen relative, permanent resident family member, or prospective employer, files a petition, the immigrant, known as the "beneficiary," receives a "priority date." This indicates the date the government accepted the petition. Different types of petitions receive different preferences from DOS and U.S. Citizenship and Immigration Services (USCIS). Immigration law also restricts the number of visas available from any particular country in a given year. As a result, the waiting periods, indicated by the priority date, vary depending on the type of petition and, in some cases, the immigrant's country of origin.

Continue reading "Understanding the State Department's Monthly Visa Bulletin" »

Computer companies account for nearly one-half of all new petitions for H1-B visas each year, according to a recent study. This type of visa allows immigrants with particular skills in "specialty occupations" to work in the United States temporarily. A "speciality occupation" is one that involves specialized knowledge in fields such as science, medicine, engineering, technology, education, or the arts. Most require at least a bachelor's level degree to qualify for a visa. The study, conducted by the Brookings Institution, examined H1-B petitions filed by employers in 106 major metropolitan areas around the country. It found that the New York City area has the highest demand for H1-B workers. It also found that, in most metropolitan areas, more than half of all H1-B petitions involved occupations in the areas of science, technology, engineering, and mathematics (STEM).

An employer who wants to bring a foreign worker to the United States for a job must petition to obtain an H1-B visa for the worker. The employer begins the process by filing a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL), in which the employer attests that it is offering the "prevailing wage" for the position and that it is not replacing an eligible American worker or adversely impacting similar workers' working conditions. Once DOL approves the LCA, the employer files a visa petition with U.S. Citizenship and Immigration Services (USCIS) and pays various visa fees. The beneficiary, for whom the visa is sought, must undergo an interview at a U.S. embassy or consulate abroad before receiving a visa. An annual cap limits the total number of available H1-B visas. The is usually 85,000 total visas per year. The cap has been reached every year since 2003, at different times each year. USCIS announced that the cap for fiscal year 2013 was reached on June 11, 2012.

Continue reading "Almost Half of the Applications for H1-B Visas are from Computer Companies; New York Leads the Demand for Skilled Immigrants" »

We may soon reach the cap on J-1 visas in the Summer Work Travel (SWT) program, which allow visitors participating in "cultural exchange" programs to come to the United States for a defined period of time. Once the cap is reached, no more visas will be available until January 2013. The U.S. Department of State (DOS) has recently modified several procedures related to J-1 visas, effectively limiting the total available number. While the J-1 visa SWT program has provided excellent work and educational experiences for many visitors, it has also been the subject of controversy in recent years, with allegations of mistreatment and abuse of visitors by their employers.

The purpose of the J-1 Exchange Visitor Program, according to DOS, is to foster "global understanding through educational and cultural exchanges." Applicants for a J-1 visa in the SWT program must have an offer of employment through a sponsoring organization approved by DOS. They must also meet requirements for English proficiency, proof of medical insurance, and to complete orientation and ongoing monitoring with the sponsor.

As a condition of the visa, visitors must return home when the program ends so that, in the words of DOS, they may "share their exchange experiences." Visitors typically have a thirty-day "grace period" after the completion of their program to depart the country. At this point, once they leave the country, they must obtain another visa in order to return. Most participants in the program must remain in their home country for at least two years before they can return to the U.S.

Continue reading "Controversy Surrounds the J-1 Exchange Visitor Visa "Summer Work Travel" Program" »

The owner of a La Verne, California-based flight school faces charges of visa fraud for allegedly bringing students from abroad to train at her school using fraudulent visas. She is also accused of failing to properly screen foreign students under federal flight school regulations. Immigration authorities arrested 28 year-old Karena Chuang on November 30, 2011 and released her on $40,000 bond. Her school, Blue Diamond Aviation, allegedly enrolled students from Taiwan, Sri Lanka, and Egypt. The case involves issues pertaining to both immigration and anti-terrorism laws, both of which are critical for businesses that employ immigrants to understand.

Immigration and Customs Enforcement (ICE) alleges that Chuang presented herself to immigration officials as her students' cousin, helped them get approval to attend government-authorized flight schools, and then enrolled them at her school instead. ICE claims that she obtained I-20 forms, which certify a foreign national's eligibility for a visa, from government-authorized flight schools, and sometimes even paid the application fees herself. Students could use the I-20 to apply for an M-1 visa, required to attend a commercial pilot training program. She allegedly also advised student not to tell immigration officials that they intended to enroll at her school. ICE apparently learned of her activities from two Egyptian applicants who admitted last year that they intended to attend Chuang's school.

The AP reports that several other flight schools have faced similar allegations in recent years. A school in El Cajon, California allegedly created fake visas for students, pleading guilty to charges of visa fraud in 2010. A Massachusetts school trained Brazilians who had entered the U.S. without proper documentation.

Visa fraud is a serious offense under federal law. The crime of "fraud and misuse of visas, permits, and other documents" in the federal criminal code includes impersonating another person or making false statements while applying for any document required for immigration purposes. The statute allows for up to ten or fifteen years imprisonment, with enhancements if terrorism or drug trafficking was involved. This case gets complicated because it also involves laws directly related to terrorism.

ICE has directly related this case to federal anti-terrorism efforts because of its connection to aviation. Flight schools must obtain government authorization in order to train foreign nationals. Foreign nationals wishing to take a flight training course must submit to various background checks by the Transportation Security Administration (TSA) and immigration authorities, including a process of comparing applicants against terrorist watch lists. ICE officials argue that Chuang endangered national security by allegedly circumventing this process.

Continue reading "Flight School Owner Arrested for Alleged Immigration Fraud" »

The Unauthorized Practice of Immigration Law Initiative, a joint project of U.S. Citizenship and Immigration Services (USCIS) and five other federal agencies, aims at educating both documented and undocumented immigrants about recognizing immigration scams. USCIS formally announced the campaign at its Newark office in early December. The campaign will start in seven U.S. cities, including New York City.

More and more individuals and businesses who lack the credentials or authority to render legal assistance are targeting immigrants for what appears to be help preparing applications for immigration benefits. In reality, these scammers pocket the immigrants' money and leave them in a worse position than before. An immigrant might miss an important filing deadline or even end up in removal proceedings if they seek help from the wrong people.

The Star-Ledger tells the story of a Honduran immigrant who fell prey to a common scam that targets Latin Americans. Sagario Mendoza, a 48 year-old mother of three had lived in Newark for five years when she sought immigration assistance from a "notario." In many parts of Latin America a "notario publico" is a licensed legal professional, authorized to perform many of the same services as an attorney. In the United States, a "notary public" has authority from the government for a very limited set of duties, usually to administer oaths and witness signatures. People advertise their services as "notarios" to Latin American immigrants, creating the false impression that they can offer legal assistance with immigration applications. Only licensed immigration attorneys can offer legal assistance with immigration documents in New Jersey. Mendoza learned that the "notario" had taken her for $1,000 and never filed any documents on her behalf. She now faces the risk of deportation.

Another common scam is an advertised promise by a business guaranteeing benefits such as a green card or employment authorization. They often charge a high fee to fill out and file immigration applications and claim they can obtain a faster processing time. Websites that resemble official government immigration agency websites also promise fast turnarounds on applications. They may charge a fee to download official immigration forms, then charge another fee to assist in filling out the forms. This is a sure sign of a scam, as all forms are free to download from USCIS's website.

Continue reading "Federal Officials Launch Immigration Scam Education Campaign" »

Five year-old Elizabeth, New Jersey resident Yarellis Bonilla, who suffers from leukemia, needs a bone marrow transplant to save her life. Immigration officials agreed last week to grant humanitarian parole to her older sister, seven year-old Giselle Bonilla, to come to the United States from El Salvador to participate in transplant surgery. The story by no means has a happy ending yet, but doctors have offered a good prognosis for Yarellis once she has the surgery. Under the terms of her visa, her sister Giselle will be able to stay for three months. They plan on doing the surgery at Newark's Beth Israel Children's Hospital after the new year.

The Bonilla family had fought for months to get permission for Giselle to come to New Jersey for her sister. The U.S. Department of State had previously denied two visa applications from Giselle. According to the family's lawyer, the government looked at the size of the family in the United States and did not trust that Giselle would return to El Salvador upon the expiration of her visa. While the family waited for the government to approve Giselle's application, Yarellis had to undergo repeated, and avoidable, chemotherapy treatments that have left her weaker than her doctors would like. Had the surgery happened earlier, she would not have needed so many intensive treatments, subjecting her to what one doctor called "a beating." New Jersey Senator Bob Menendez, who has advocated extensively for the family, hailed immigration officials' decision, calling it "the victory of common sense over bureaucracy." He lamented that their decision did not come sooner.

Humanitarian parole is a way for someone who might otherwise be inadmissible to the United States to come here legally for a limited time period and for a specific purpose. It requires an applicant to demonstrate "urgent humanitarian reasons" or a "significant public benefit," and it can only be granted for a period of time equivalent to the duration of the humanitarian situation. In Giselle Bonilla's case, the three-month period is the length of time needed to participate in the surgery and recover.

Immigration authorities grant humanitarian parole "sparingly," and have wide discretion to assess applicants' circumstances. The government occasionally announces a policy related to specific events or circumstances. The Department of Homeland Security announced last year, for example, that it would grant humanitarian parole to Haitian children orphaned in the earthquake of early 2010, so that they can receive medical care. Decisions as to specific children would still be handled on a case-by-case basis.

Continue reading "Sister of New Jersey Cancer Patient Granted Visa to Try to Save Her Life" »