Are you a citizen of the United States? This may seem like a basic question, but for some the answer may be complicated. Many people may be U.S. citizens without even knowing it, particularly where their citizenship is derived through the naturalization of their parents. The distinction can be significant, particularly where that person finds themselves facing criminal charges. Below I outline the ways in which a person might have become a U.S. citizen as a child through no action of their own.
U.S. Citizen at Time of Birth
Birth in the United States or certain U.S. territories. This is how most of us derived our citizenship and while this route is quite well known, some confusion persists. For example, Supreme Court Justice Sotomayor, whose parents moved to New York from Puerto Rico before she was born, is often incorrectly labeled as … Read More »
Immigration law continues to be a hotbed of legal and political activity in the United States. As we enter May 2015, here are updates on three important areas of immigration law:
Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)
In November 2014, President Obama announced a new plan for executive action on immigration, which included Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). As explained in my earlier blog post, DAPA permits immigrants who have sons or daughters who are U.S. citizens or lawful permanent residents to not only remain in the U.S. but receive work permits as well. The President’s executive action immediately came under scrutiny. On February 16, 2015, a judge in Texas issued a nationwide injunction to stop implementation of DAPA. On April 17, 2015, the U.S. Court of Appeals for the Fifth Circuit … Read More »
Going through a divorce can be stressful enough without the added element of marriage-based immigration issues. While all your time and energy may be focused on terminating your marriage, you cannot neglect how this change in your relationship may or may not affect your ability to remain in the United States after your divorce. Here are answers to ten questions which commonly arise when divorce and immigration intersect:
Will separation from my spouse affect my immigration benefits? Generally, no. Physical or legal (court-ordered) separation from your spouse does not constitute a termination of your marriage and will not affect your immigration status. In some states, an extended legal separation may convert into a divorce after a period of time. In these instances, your immigration status would be terminated if it is dependent upon your marriage.
Will my divorce affect my non-immigrant status? If your … Read More »
In my immigration practice, one of the most common issues I come across is a theft-related crime in the background of my immigrant client. Whether a non-citizen is applying for a green card, a green card holder is coming back into the country after a trip abroad, or a green card holder is applying for naturalization, a theft-related conviction can have dire consequences.
Recently, the U.S. Court of Appeals for the Fourth Circuit took a closer look at Virginia’s grand larceny statute, Virginia Code § 18.2-95, to see if grand larceny in Virginia constitutes a theft “aggravated felony” for immigration purposes. To be deemed an aggravated felon for a theft conviction, the immigrant must have been convicted of an actual theft offense that carries with it a term of imprisonment of at least one year. In Omargharib v. Holder, Mr. Omargharib, … Read More »
On November 20, 2014, President Obama announced a new plan for executive action on immigration, which will offer temporary relief from deportation to millions of undocumented immigrants. The highlights of the plan include:
Deferred Action. Under the new plan, undocumented immigrants can receive work permits if they satisfy ALL of these criteria:
Entered the U.S. before January 1, 2010;
Not in any kind of lawful status as of November 20, 2014;
Have a son or daughter who is a U.S. citizen or lawful permanent resident (green card holder);
Do not have various convictions, ties to gangs or terrorism, etc.; and
Do not present other factors that negatively affect a granting of deferred action.
DACA. DACA (Deferred Action for Childhood Arrivals) is a program announced in 2012, which allows certain individuals to receive work permits and be safe from deportation. President Obama’s new executive action expands the DACA program … Read More »
As I detailed in Chaidez Case Limits The Reach Of Padilla and Post-Conviction Relief And Immigration Consequences, the area of post-conviction relief is a hot topic for non-citizens living in the U.S. Generally speaking, post-conviction relief is the means by which one convicted of a criminal offense seeks help in the form of a conviction modification or even the vacating of the conviction itself. The result in my Virginia Supreme Court case, Commonwealth v. Morris, unfortunately reduced the time in which one may try to collaterally attack a conviction in a Virginia court.
What about the issue of elected officials modifying a conviction in some manner? Is this a plausible means of relief in Virginia and beyond? In Sharma v. Taylor et. al., we will see exactly how a federal court views post-conviction relief in the naturalization context. My client in this case … Read More »
The words “aggravated felony” can be overwhelming to see if you are in removal (deportation) proceedings. Aggravated felony is an immigration term used to reference a particular type of state or federal crime. Although the word “felony” is included in the term, the underlying criminal conviction could be classified as a misdemeanor and still qualify as an “aggravated felony.”
The following are some of the criminal convictions which can be qualified as aggravated felonies in immigration court:
Murder, rape, or sexual abuse of a minor;
Drug or firearm trafficking;
Any theft or violent crime for which the defendant received a sentence of at least one year (including any suspended sentences);
Any crime involving fraud or deceit where the loss to the victim was over $10,000; and
Any conviction for attempt or conspiracy to commit an aggravated felony.
As discussed in our discussion on Deportation or Removal, there are various avenues available … Read More »
I recently handled the immigration case of an individual who has resided in the U.S. since the late 1950s. Having entered on a farmworker visa and then falling out of status once the visa expired, my client filed for a green card based on a little-known program in the U.S. called Registry. Quite simply, Registry allows for a person to obtain a green card (or permanent residency) if they can prove physical and continuous presence in the U.S. since January 1, 1972.
Other criteria for a green card through the Registry include that the individual is:
a person of good moral character;
not ineligible for citizenship; and
not deportable as a terrorist or inadmissible for engaging in Nazi persecution, genocide, torturous acts, or extrajudicial killings.
Importantly, the applicant must have proof of his/her continuous physical presence in the U.S. since 1972. Such proof includes: bills, … Read More »
Over the last few weeks, the recent upsurge of unaccompanied minor children crossing illegally into the United States has caught the attention of the media and protesters alike. Anti-immigration activists will predictably seek to frame this situation in the most political terms possible. But this is a case where, rather than arguing over invisible borders, we should act as adults seeking to protect the innocent.
In order to understand this recent influx of child immigrants, it is important to understand how we got here, how bad the situation is for these children, and what we are doing to address the issues.
How Did We Get Here?
In 2008, President Bush signed the Trafficking Victims Protection Reauthorization Act into law. This Act set guidelines on how unaccompanied minors arriving from non-border countries should be handled. Minors qualifying under the Act are entitled to have a hearing … Read More »
If your H-1B petition was not selected in this year’s H-1B lottery, you are not alone. With over 170,000 visa petitions received, the allotted H-1B visas were filled quickly this year. USCIS conducted a random lottery to select petitions which would be considered for the available visas. Many employers whose petitions were not selected are left with job openings in need of qualified candidates. However, those employers do have additional options available to sponsor their foreign candidates.
Below is an overview of some non-immigrant visa alternatives for employers to consider:
O-1 visas (extraordinary ability). O-1 visas are for foreign nationals who are outstanding and widely recognized in their field. They should be considered within the very top of their field to qualify for this type of temporary visa. The specified fields which are available are limited, but include science, arts, education, business, … Read More »