California Immigration Lawyer Blog

On June 1, 2009, new document requirements go into effect at land and sea ports for entry into the United States. Pursuant to the Western Hemisphere Travel Initiative ("WHTI") an individual may show one of the following documents in order to be admitted into the United States:

• U.S. or Canadian passport;


• Trusted Traveler Card (Nexus, Sentri, or Fast/Express);


• U.S. passport card;


• State or province issued enhanced driver's license.

California does not issue "enhanced driver's licenses." (Enhanced driver's licenses contain multiple levels of security features.) It is no longer possible after June 1, to travel to Canada and expect to return with just a California driver's license. You must therefore have proof of citizenship as indicated above or proof of lawful permanent residence (i.e., "green card"), or proof of some other kind of non-immigrant status in order to be able to return to the United States.

For more information about the document requirements, please see my previous post on "Free travel widget helps plan trips abroad and return to the United States." You may also go the U.S. Customs and Border Protection website on WHTI to obtain further information.

On Memorial Day, I was driving through Salinas and noticed that the farm workers were out in the fields working. They apparently were not given the holiday off. I could not help but wonder what legal status if any those people have in the United States and wondered if any type of immigration remedy would ever be available for them. It appears that a remedy may be on the horizon. On May 14, 2009, Rep. Berman (Democrat, California) introduced the Agricultural Job Opportunities, Benefits, and Security Act of 2009 (H.R. 2414) or AgJOBS. A companion bill (S. 1038) was also introduced in the Senate by Senator Feinstein (Democrat, California).

This bill would give "blue card" status to agricultural workers who have worked in the United States during a 24 month period ending on December 31, 2008. In order to receive the status, an applicant would have to show that he or she: 1) worked for 863 hours or 150 work days; or 2) earned at least $7500 from agricultural employment. An individual receiving "blue card" status would be eligible to travel and to work in the United States.

Individuals with "blue card" status would be eligible to adjust to lawful permanent residents (i.e., receive green cards) upon a showing of continued agricultural employment as specified in the Bill. (There are three alternate methods of meeting the continued agricultural employment requirements.) Derivative family members (spouses and children) would also be eligible for the status.

A prior version of this Bill was introduced in 2007 but had failed. This bill is a very legitimate remedy to give status to those who are in the United States already and who are performing work that is much needed in our economy.

On May 11, 2009, the Department of State released a list of "countries of particular concern." The governments of these countries have committed or tolerated particularly severe religious human rights violations. The countries include: China, Burma, Eritrea, Iran, North Korea, Saudi Arabia, Sudan and Uzkebistan.

Also contained in the announcement is a list of sanctions/restrictions that the U.S. government has imposed on each country due to their religious freedom violations. This document would be useful in a political asylum case should the applicant be from one of the above-mentioned countries as the U.S. has now recognized that the governments in these countries commit or permit severe human rights violations based on religion.

In order to petition for your relative to immigrate to the United States, you must: 1) be in the correct legal status and 2) not have been convicted of certain crimes. I will discuss both requirements in this post.

Legal Status

If you are a citizen of the United States, you may petition for your parent, spouse, child, unmarried adult son or daughter, and brother or sister.

If you are a lawful permanent resident of the United States, you may petition for your spouse, child and unmarried son or daughter.

It is not possible to petition for any other kind of family relative such as grandparents, grand-children, cousins, aunts or uncles. Similarly, the only persons who may petition are citizens and lawful permanent residents. Non-immigrants may not petition for relatives to immigrate permanently.

In order to start the process, a "petition for alien relative" is filed with United States Citizenship and Immigration Services ("USCIS") on Form I-130. In general, the petitioner files it with proof of legal status and proof of the relationship. I will discuss the type of proof that needs to be filed with petitions in a later post.

Crimes that make a petitioner ineligible to file

A petitioner is prohibited from petitioning for a relative if he or she has been convicted of "any specified offense against a minor" unless the Secretary of Homeland Security determines in his or her sole and unreviewable discretion that the petitioner poses no risk to the beneficiary. The list of offenses include:

• An offense (unless committed by a parent or guardian) involving kidnapping;
• An offense (unless committed by a parent or guardian) involving false imprisonment;
• Solicitation to engage in sexual conduct;
• Use in a sexual performance;
• Solicitation to practice prostitution;
• Video voyeurism as described in section 1801 of Title 18, United States Code;
• Possession, production, or distribution of child pornography;
• Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct; or
• Any conduct that by its nature is a sex offense against a minor.

Continue reading " Can I petition for my relative to immigrate to the United States? " »

United States Citizenship and Immigration Services ("USCIS") has recently published new guidance on the type of proof veterans may provide to establish eligibility for naturalization. In the past,when applying for naturalization pursuant to Sections 328 and 329 of the Immigration and Nationality Act (Naturalization through service in the Armed Forces or Naturalization through active-duty in the Armed Forces during certain specified periods of hostilities), veterans were required to submit a certified Form N-426, Certificate of Military or Naval Service. It was quite burdensome for veterans to obtain a certified Form N-426 when they were no longer on active duty because they had to request certification by sending it to the military records center for certification. It added delay to an already lengthy process.

Now USCIS has issued a new memo indicating they will accept an uncertified Form N-426 from a veteran applicant for naturalization if all of the following conditions have been met:

1. The applicant is separated from the Armed Forces at the time of filing Form N-400 (Application for Naturalization);
2. The applicant submitted a completed but uncertified Form N-426;
3. The applicant submitted a photocopy of his or her DD Form(s) 214 (report of separation) for all periods of time captured on Form N-426; and
4. The DD Form 214 lists information on the type of separation and character of service.

When all four conditions are met, the Nebraska Service Center will process the Form N-400, Application for Naturalization accompanied by an uncertified Form N-426.

You may find the entire text of the USCIS memo here: Acceptance of DD Form 214 as Certification of Military or Naval Service for Veterans of the U.S. Armed Forces.

For more information on military naturalization, please see my previous post on "USCIS releases fact sheet on military naturalization."

This year is very different in terms of the number of people filing for H-1B visas. Last year, USCIS, received enough applications on April 1 such that the cap was reached on the first day applications were accepted. This year, it is a different story.

As of May 4, 2009, USCIS had received 45,000 petitions toward the 65,000 cap limit. Thus it is still possible to file an H-1B petition for a job beginning October 1, 2009. (The government fiscal year begins on October 1.) There is also an additional 20,000 visas available for persons with advanced degrees (a Master's degree or higher). Although USCIS has received 20,000 of these applications, they are still accepting additional applications because it has been their experience that not all of these petitions are approvable.

You can check the USCIS website on current cap counts for H-1B filings.

On April 19, 2009, I wrote a post about Mr. Demjanjuk and Germany's request to extradite him. Specifically Germany has requested the extradition of Mr. Demjanjuk so that he can be tried on 29,000 counts of human rights violations when he was serving as a concentration camp guard in the Nazi Germany. Mr. Demjanjuk filed a request to re-open his deportation case and a stay of removal seeking relief under the Convention Against Torture.

Today the 6th Circuit Court of Appeals denied his request for a stay of the removal order. The Court noted that the BIA denied the request to reopen his case because the BIA concluded Mr. Demjanjuk failed to submit sufficient evidence to show that he would be subjected to torture in Germany. Similarly, the Appeals Court found that Mr. Demjanjuk would not suffer irreparable harm in being transported to Germany. The Government has represented that they will transport Mr. Demjanjuk in an aircraft equipped as a medical ambulance and attendance by personnel. Under such circumstances, the Court ruled
that Mr. Demjanjuk's removal to Germany is not "likely to cause irreparable harm sufficient to warrant a stay of removal."