Wilner & O'Reilly, APLC
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Orange County Immigration & Naturalization Law Blog

Criminal acts that can lead to deportation

Green card holders living in California are sometimes worried that even minor brushes with the law could lead to their deportation. While some forms of criminal activity can lead to a person being deported, small offenses will rarely have such serious consequences. However, the law in this area is subject to interpretation.

Permanent residents of the United States may face deportation if they are convicted of a crime involving moral turpitude within five years of being issued their green card. Such crimes range from sexual offenses such as rape and prostitution to violent acts like serious aggravated assault and murder. Perjury, larceny and counterfeiting are also considered crimes of moral turpitude. Minor infractions such as public drunkenness, gambling and disorderly conduct will rarely be considered crimes of moral turpitude and are unlikely to result in a permanent resident's deportation.

Congress considers changes to the EB-5 visa program

California residents may have read recent media reports about the controversial EB-5 visa program that grants permanent legal residence in the United States to foreign nationals who invest $500,000 or more into an enterprise that creates jobs for Americans. The program has been particularly popular among wealthy Chinese citizens, but it has come under fire from critics who say that it amounts to selling green cards to the wealthy. The criticism of the program has crossed party lines, and Congress is considering a number of changes designed to reduce the likelihood of fraud and ensure that the jobs created are in areas of high unemployment.

One of the legislative proposals being considered would see the required investment for an EB-5 visa increased to between $800,000 and $1.2 million while another would require greater transparency regarding how the money is to be spent. Investors may also be questioned more thoroughly about how they earned the money.

Mixed results on California drug bills for immigrants

According to reports, California Gov. Jerry Brown recently signed one new bill that provides some protection for immigrants charged with drug offenses, while he vetoed another. The result is that immigrants will enjoy more protections, but they will still face the possibility of their offenses triggering deportation and removal proceedings.

Under federal law, a conviction for a drug offense can trigger deportation proceedings, even for immigrants who hold green cards. The main problem in California is that immigrants thus face greater potential penalties if they choose to enter the state's drug diversion program. The drug diversion program requires a guilty plea for people to participate in it. That guilty plea is later withdrawn and the case is dismissed if the participant successfully completes the program.

Sudden immigration policy change affects tech workers

Two representatives from California have criticized a recent decision by the State Department to change an immigration policy. The sudden and unexplained policy revision left an estimated 20,000 to 30,000 immigrants unable to apply for green cards as they had expected. According to U.S. Reps. Mike Honda and Zoe Lofgren, the revision has undermined predictability and stability in the immigration system.

A majority of the immigrants who were affected by the policy change are originally from China and India. Many of these immigrants work in the medical and tech fields and hold advanced degrees. On Sept. 9, a bulletin issued by the State Department stated that the affected immigrants would be able to apply for permanent residency on Oct. 1. Then on Sept. 25, a revised bulletin was issued that informed the immigrants they would not be able to apply but gave no information about when they could apply in the future.

DOL awards H-1B workers back pay from U.S. employer, owner

Two H-1B employees with H-1B visas have been awarded more than $291,000 in back pay, application fees and interest after their employer failed to allow them to work and to pay them. This ruling is a clear reminder to California employers and employees alike that immigrant workers with H-1B visas must be employed and receive payment.

According to the case which went to the U.S. Department of Labor, a company sponsored the two workers for H-1B visas but did not employ or pay them after they made themselves available for work. After the judge determined that the workers were benched, the company and its owner were ordered to pay the workers' wages for as long as their work visas are valid. In addition, the company and its owner must repay the immigration application fees that each worker provided as well as pre- and post-judgment interest.

High costs and language tests can be barriers to citizenship

California is a popular destination for Mexican immigrants who have received a green card and are able to legally live and work in the United States. Studies have found that the overwhelming majority of these immigrants hope to go on to become naturalized American citizens, but many of them never actually go on to take this step. Government data reveals that approximately 8.8 million green card holders have not applied for naturalization, and this is often blamed on the barriers that have been placed in their way.

The high costs associated with the naturalization process are often cited as the main factor preventing permanent residents from applying for naturalization. The cost of submitting a naturalization application is currently $680, and this is often beyond the means of immigrant families struggling to pay their bills. There is also no family payment cap in place, which means that each member of a family hoping for naturalization must pay the fee. These fees are also nonrefundable should the application be denied.

Identifying foreign workers that are eligible for U.S. visas

Employers in California that are interested in hiring non-U.S. citizens for job positions in the United States will have to consider each candidate's visa eligibility. Identifying candidates who are more likely to be approved for work visas can save a company's human resources department a lot of time and expense.

The first thing that should be considered before hiring a foreign-born job candidate is the person's criminal history and previous U.S. immigration history. Any criminal history at all could delay visa processing, and criminal convictions could make a person permanently inadmissible to the U.S. If a job candidate has a record of U.S. visa denials and refusals of entry, a new visa application is likely to be heavily scrutinized. People who did not leave the U.S. once a previous visa had expired could be barred from reentering the country for up to 10 years.

Other options for employment immigration besides H-1B visas

As many California businesses and foreign employees know, the government limits the number of H-1B visas it will approve each year. This year, approximately 148,000 H-1B applications were denied, leaving some believing they didn't have another alternative. There are several alternate types of employment visas that may be an option, however.

Through the North American Free Trade Agreement, Canadian and Mexican workers who qualify may be able to come to the country under trade NAFTA, or TN, visas. Canadians are allowed to apply at the U.S. port of entry, while Mexicans are required to apply at a U.S. Consulate. These visas are good for three years and then may be renewed for an additional three-year period.

Furor over anchor babies at odds with immigration laws

Most California residents are likely aware that immigration has become a contentious issue in the run-up to the 2016 presidential election, and some candidates have called for changes in the law to prevent citizenship being granted automatically to the children of undocumented immigrants born in the United States. The political debate on this issue may foster a belief that having what the media refers to as an anchor baby is a way for immigrants to achieve legal residence in America quickly and easily, but immigration laws give few advantages to the parents of these children.

The parents of such a child may not petition to become citizens themselves until their child has reached the age of 21. They must also have spent at least 10 years living overseas before their petition will be considered if they spent a year or longer living illegally in the United States. There are exceptions to this 10-year rule granted to the children or spouses of U.S. citizens, but undocumented immigrants rarely qualify for them.

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.

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