W&O' - Wilner & O'Reilly - Immigration Lawyers
Consult Us Now
Practice Areas
Freedom. One glimpse is all it takes.

Orange County Immigration & Naturalization Law Blog

Trump plan challenges birthright citizenship

The dean of a California law school says the issue of birthright citizenship has been settled law since at least March 28, 1898, when the U.S. Supreme Court ruled on the case of a Chinese American who had been born in 1873 in San Francisco. The Court noted that its interpretation of the meaning of the 14th Amendment depends on the adoption of Anglo-American law dating back to 1608, long before the establishment of the nation. In a nutshell, any person born here is a U.S. citizen, according to the dean.

The Supreme Court case began in 1895, when the then 22-year-old man was denied re-entry to the United States following a trip to China, where much of his family still lived. It was a time of significant anti-Chinese feeling, just nine years after the passage of the Chinese Exclusion Act, and though the Court recognized the man's rights as a U.S. citizen, he was forced to live and raise his family in China.

California children can benefit from parents' new ciitzen status

California parents may be interested to learn that their own quests for citizenship can have direct impacts on their childrens' status. There were already multiple avenues by which children who were under the age of 18 on Feb. 18, 2001 could obtain citizenship. Under today's more-lenient guidelines, however, many other children may be eligible for citizenship based on their parent's naturalization.

Derivative rules grant automatic U.S. citizenship to children under a number of conditions when one of their parents becomes naturalized. For instance, if the other parent earned their citizenship before the child's 18th birthday or was deceased, a child may be granted citizenship. Children whose parents were unmarried at the time of their births may be granted citizenship if their mother was the naturalized parent, but those whose fathers naturalized are not afforded the same right.

Updates to H-1B amendments for workplace changes

A recent clarification of employment visa requirements may have left some California employers scrambling to meet an August 19 deadline. USCIS determined in April that employers are required to file an amended H-1B petition if a worker under such a visa will move to a different geographical work location. Although a situation arose involving one worker and their employer, USCIS indicated that all employers were responsible for updating their H-1B petitions if workers had been relocated outside of the same metropolitan areas initially used on the petitions.

Initially, USCIS required that amendments would be required in all cases involving relocated workers. However, the deadline has been extended, allowing employers to comply on or before Jan. 15, 2016. The agency has also now indicated that it will not generally seek denials of visas or revocations in instances of relocation that occurred prior to the April 9 decision, leaving employers in such cases with the option of not amending their H-1B petitions. At the same time, USCIS will not cancel actions that are already in progress because of relocation activities that preceded the decision.

California representative proposes EB-6 visa category

A California member of the U.S. House of Representatives is one of two sponsors of a bill that would modify the rules and regulations surrounding investment visas. The legislation, termed the Entrepreneurial Business Creating Jobs Act, seeks to add an EB-6 category for foreign individuals who are able to raise money for a business by securing investors.

A bill before the Senate, by contrast, would largely reauthorize the current immigration program, with permanent visa categories EB-1 through EB-5. An individual who can make an investment of at least $500,000 in a project that will create at least 10 U.S. jobs can apply for permanent residency, also known as a green card, under category EB-5.

Court order affects some DACA work permit holders

Residents of California who have received work permits under the Deferred Action for Childhood Arrivals program may be affected by court action that took place in Texas on Feb. 16, 2015. A federal court issued an injunction against the expansion of that program, and that nullified all three-year work permits that were sent out to DACA applicants after the injunction. Some permits were issued prior to the injunction but were returned. Because these were re-sent after the injunction, they are also invalid. DACA is a program that was formulated to provide undocumented individuals who came to the U.S. as children an opportunity to remain and work legally.

Those who received their three-year permits prior to the court action are able to continue to work under the terms of those documents. A two-year option, which was in place prior to the newer program, is still available to those whose three-year work permits were affected. Nearly 3,000 people were issued invalid permits, and the United States Citizenship and Immigration Services has reminded those in possession of these documents that they must be returned no later than July 31, 2015. Failure to comply could reflect negatively during additional deferred action requests or other immigration-related proceedigns.

ICE to release families from immigration detention centers

California residents may have heard about the immigrant families that have been held at the three family immigration detention facilities in Pennsylvania and Texas. For months, immigration attorneys and advocates have urged the Obama administration to release mothers and children from the facilities and end the practice of family detention altogether. On July 13, a spokesman for Immigration and Customs Enforcement announced that ICE would start releasing women and children from the detention centers after reviewing their cases.

According to the ICE spokesman, the agency will have a new policy of refraining from detaining mothers with children who are seeking asylum in the United States. ICE said that it would still detain mothers with children if they presented a threat to public safety or national security. To avoid detention, mothers would also have to show that they have a credible case for asylum and a verifiable address.

Changes for H-1B visa holders who move job sites

According to a recent ruling by the Administrative Appeals Office of U.S. Citizenship and Immigration Services, if an employee on an H-1B visa is moved to a new location by the employer, that employer must file a new labor condition application. This decision came as a result of a situation in which an employee who was hired to work in a particular metropolitan statistical area in Southern California was supposed to be transferred after two months to a different work site in another MSA.

During a consular visa application interview, the plan arose, and as a result, USCIS revoked its approval of the petition. This decision was upheld by the AAO.

Appeals court finds citizenship law unconstitutional

Fathers in California may now have an easier time conferring citizenship onto their children who were born in foreign countries. On July 8, a federal appeals court decided that a law that treats mothers and fathers of foreign-born children differently was unconstitutional. Immigration attorneys have noted that the law, which directly discriminates against petitioners based on their gender, may eventually be revisited by the Supreme Court.

Up until now, U.S. citizen fathers of foreign-born children had to reside in the United States for five years before their children could become U.S. citizens. The requirement applied only to fathers who had children outside of marriage with a non-U.S. citizen partner. Unwed U.S. citizen mothers who were in the same situation were only required to spend one year residing in the U.S. before they could confer citizenship onto their foreign-born children.

Abercrombie & Fitch fined for immigration discrimination

On June 25, Abercrombie & Fitch settled an immigration discrimination charge by agreeing to pay over $158,000 and submit to two years of federal monitoring. The charge against the clothing retailer, which has several locations in California, was filed by a woman who claims that she was required to present a green card to prove that she was eligible for employment, although similar proof was not required by applicants who were U.S. citizens.

The company's request of the plaintiff reportedly violated the U.S. Immigration and Nationality Act. Although the company did not admit to discriminating against the plaintiff based on her immigration status, the company agreed to pay the woman $3,661 for back pay plus interest. A $153,932 fund was also set up to compensate other people who might have been similarly discriminated against. The company also agreed to pay a $1,100 civil fine for the violation.

Supreme Court allows appeals of immigrants in mishandled cases

California immigrants may encounter challenges when seeking legal assistance in a variety of situations. Language and cultural barriers may make communication difficult, and if a case is handled incorrectly, an immigrant may have little realization of the fact that this has occurred. In some situations, a deportation could even occur because of a legal error. However, the U.S. Supreme Court has recently ruled that federal appeals courts have the ability to intervene in cases requiring review based on legal errors.

The case resulting in this decision involved a man who pleaded guilty to domestic abuse charges. Because he was undocumented, he faced deportation action after this incident. His immigration attorneys at the time made a clerical error by failing to file the correct documents. He did not become aware of the error until he retained different attorneys. However, the deadline for filing an appeal was missed during this process, leading to the dismissal of the appeal.

W&O' - Wilner & O'Reilly - Immigration Lawyers

Office Locations:

Orange County Office
333 City Boulevard West, Ste. 1918
Orange, CA 92868

Phone: 714-919-8880
Toll Free: 800-352-7034
Orange Law Office Map

Riverside Office
3403 Tenth Street, Ste. 742
Riverside, CA 92501

Phone: 951-787-0010
Toll Free: 800-352-7034
Riverside Law Office Map

Salt Lake City Office
343 South 400 East
Salt Lake City, UT 84111

Phone: 801-594-9999
Toll Free: 800-352-7034
map and directions >>

Sacramento Office
2730 Gateway Oaks Dr. Ste. 200
Sacramento, CA 95833

Phone: 916-643-4657
Toll Free: 800-352-7034
Sacramento Law Office Map

Utah County Office
1145 South 800 East
Orem, UT 84097

Phone: 801-594-9999
Toll Free: 800-352-7034
map and directions >>

San Francisco Office
1001 Bayhill Drive, Ste. 200
San Bruno, CA 94066

Phone: 650-243-0475
Toll Free: 800-352-7034
map and directions >>

San Diego Office
4445 Eastgate Mall, Ste. 200
San Diego, CA 92121

Phone: 858-939-0421
Toll Free: 800-352-7034
map and directions >>