Tills Visa Law

Stephen K. Tills, Attorney at LAW

Visitor Visa ~ overstays and consequences

A recent report (Jan, 2016) from DHS to the U.S. Congress shows the number of visitors who have overstayed their visas.  More than half a million aliens overstayed their visitor visas in the United States in 2015 alone, with more than 482,000 of those individuals believed to still be residing illegally in the United States, according to a separate report issued this month by DHS.

Department of Homeland Security (DHS)

Department of Homeland Security (DHS)

What are the consequences of overstaying a U.S. visitor visa?
Most visitors to the U.S. arrive with a basic tourist visa, B-2 visa, which often is valid for 10 years and permits multiple entries to the U.S.. Each entry is limited to 6 months or less, and is indicated on the I-94, or stamped passport, given to the visitor by BCBP at the time of admission. Exceeding the time limit on the I-94 / passport results in an overstay.

If known by DHS or the State Department, the overstay would result in that visa being cancelled, and the person forced to file a new visa application.

IS THAT ALL? ..not necessarily.
(i) If the overstay results in more than 6 months of “unlawful presence” in the U.S., then the person becomes inadmissible to the U.S. for 3 years.
(ii) If the unlawful presence is more than 1 year, the person is inadmissible for 10 years.

 USA Visitors Visa

USA Visitors Visa

UNLAWFUL PRESENCE is also charged to persons who have crossed the border illegally, if DHS has the evidence to prove it.
STUDENT VISA
However, not all visas are granted with a specific period of time authorized, but instead, as in the case of student visas, for “duration of status“.  Student visa holders maintain lawful status by maintaining a full-time student curriculum at an authorized School.  Unlawful presence for students is only commenced following a formal finding of a violation by DHS or an Immigration Judge.  In most cases, students depart the U.S. or apply for “reinstatement” of student status and avoid a lengthy period of unlawful presence.
S_K_Tills_US_immigration

Supreme Court will review Texas case

CHALLENGING OBAMA’S IMMIGRATION ACTION
The Supreme Court announced today (January 19,2016)  that it will review the U.S. v. Texas decision, and analysts believe it will issue a decision in June. In granting the Writ, the Court stated: 

Deportation

People picket the Immigration and Customs Enforcement

The petition for a writ of certiorari is granted. In addition to the questions presented by the petition, the parties are directed to brief and argue the following question: “Whether
the Guidance violates the Take Care Clause of the Constitution, Art. II, §3.” . . . . . (The Constitution requires the President to “take Care that the Laws be faithfully executed.”)
order list: 577 U.S.

Review will not be limited to whether the preliminary injunction was warranted, but whether DAPA, ACA II, etc. were a proper exercise of executive power.S_K_Tills_US_immigration

Is Ted Cruz a Natural Born Citizen?

In the Republican Presidential primary contest, the issue of Ted Cruz’s eligibility was raised, since he at one time was a Canadian citizen by virtue of his birth in Canada.  Like the U.S., Canada grants citizenship to persons born on Canadian soil. In Ted’s case his mother was a U.S. Citizen,  so he was entitled to be a U.S. Citizen as well.  Thus, until he renounced his Canadian citizenship in 2014, he was a dual citizen of the U.S. and Canada.  But, can he become President of the U.S. since the constitution requires that the President must be a natural born citizen?
ted-cruz
As Article II, Section 2 of the Constitution declares:  “No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President . . ..”.  According to the Washington Post’s Ruth Marcus, the intent of the citizenship requirement was, in the words of Founding Father John Jay, to “provide a strong check to the admission of Foreigners into the administration of our national Government.”  (In the middle two sentences, the Framers exempted themselves from this requirement, since many were only first or second generation citizens.)

The result of that analysis would be that anyone who is born to a U.S. citizen parent, or born on U.S. soil, is eligible to be President. Whereas, a person who became a citizen by naturalization would not be eligible.

In Ted’s case, what was the process for his Parents to make him a citizen of the U.S. after his birth in Canada?  They would have filed an “Application for Consular Report of Birth Abroad”.  That form, the DS-2029, is filed in the U.S. consulate with territorial jurisdiction over the place of birth. It results in the issuance of the FS-240, Report of Birth Abroad. Here is a recent announcement from a U.S. consulate regarding an update to the form:

The Department of State is pleased to announce the introduction of a redesigned Consular Report of Birth Abroad (CRBA, or Form FS-240).  The redesigned CRBA, which is an official record confirming that a child born abroad to a U.S. citizen parent or parents acquired U.S. citizenship at birth and serves as proof of citizenship, has been updated with a variety of state-of-the-art security features to help prevent fraud and identity theft. provided by the usembassy.gov.

Presidential candidate Donald Trump recommends that Cruz file a Petition for Declaratory Judgment in Federal Court to get an official Judicial determination on the issue.  But, instead,  maybe he just has to produce the FS-240.  We’ll see.S_K_Tills_US_immigration

Immigration in Chaos

Wow, I don’t think many practitioners in the field of Immigration law would have foreseen the chaos of the last several years. Whether it is Presidential Action creating lawful status out of thin air for millions of people unlawfully present, only to have it blocked in Federal Court,

From left, Judge Thomas M. Reavley, Appellate Judges: Chief Judge Carolyn Dineen King, and Judge Emilio M. Garza (Fifth Circuit Court) taken at Baylor Law School ..by Alan Hunt

From left, Judge Thomas M. Reavley, Appellate Judges: Chief Judge Carolyn Dineen King, and Judge Emilio M. Garza (Fifth Circuit Court) taken at Baylor Law School ..by Alan Hunt

or the visa bulletin fiasco, or Central American families risking their lives after a pull back by Border Patrol, and on and on. And to think that the administration wants the Supreme Court in June, or October, to overrule the 5th Circuit, so that the Executive Actions can be implemented, with 6 or three months left in the administration?
WAIVERS
There have been a few positive changes.  Ex., People who have been present illegally in the U.S. for more than one year are barred for ten years from re-entering the U.S., if they leave.  If someone who crossed the border illegally, gets married to a U.S. citizen and wants to receive an immigration visa at a U.S. consulate abroad, he can’t because he is inadmissible for 10 years unless granted a waiver at the consulate.  The Obama administration made an administrative change in 2013 to allow that person to first file the waiver in the U.S. before departing, and thus know that he will likely be readmitted with the Immigrant visa with minimal delay.
waiver-APPS3
EXECUTIVE ACTION
There are other positives.  However, this administration wants the Supreme Court to overturn the Texas decision in this year’s term.   If the Supreme Court were to overturn the 5th Circuit decision, how can this administration expect U.S. CIS to be able to handle the millions of applications with only months left in the administration? How would that effect the adjudication of the other visa applications, those from U.S. employers, schools, churches, and family preference petitions? There is no guarantee the Presidential Action would survive after the next President takes office.

WORK VISAS FOR FOREIGN GRADS
Another Executive action effective January, 2016. There is the new rule proposal to unilaterally increase the number of work visas for foreign grads.
See the report from  Breitbart:   http://www.breitbart.com/big-hollywood/2015/12/30/obamas-agency-reveals-plan-give-work-permits-myriad-foreign-college-graduates/

WORK PERMITS
Does the U.S. economy require more foreign bachelor / advanced degree graduates in the U.S. to compete for jobs in the current economy?  This administration believes so:  ” The 181-page rule focuses primarily on giving work-permits to foreign college-grads who will compete against Americans for white collar jobs, despite the large number of American graduates now stuck in lower-wage positions and struggling to pay off college debts. The rule will also make each foreign graduate much cheaper for U.S. employers to hire than many U.S.-born college grads.”

Graduation Day!  U.S. College Graduates.

Graduation Day! U.S. College Graduates.

S_K_Tills_US_immigration

Inadmissible to the U.S. as a Muslim

Donald Trump suggested temporarily barring Muslims from visiting the U.S. due to the threats presented by radical Muslim extremists.  Is that legal?  What can cause people to be deemed inadmissible to the U.S.?

Under the Immigration and Nationality Act (INA), the inadmissibility grounds  precluding entry to the U.S. are found in section 212.

That section provides a number of reasons that foreigners can be denied entry:
212(a):
(1)  Health – communicable disease
(2)  Criminal:  having criminal convictions or if there is “reason to believe” that criminal acts were committed.
(3)  Security and related grounds: includes membership in communist / totalitarian party,  member of terrorist organization.
(4-6)   Prior Immigration violations, previous deportation, alien smuggling, etc..
(7) Misc grounds:   Practicing Polygamists, International Child Abduction, Unlawful Voters, Ineligible for Citizenship, Foreign Nationals who Evaded the Draft

world_religion

Membership in a certain religion cannot be the basis for denying  entry to the U.S.. But, anyone with ties to terrorism is barred under INA section 212(a)(3). . .

What can be done by an alien who is deemed inadmissible?  Depending on the basis of inadmissibility, they may be eligible to file a waiver application.  (not available for the terrorist ground)
S_K_Tills_US_immigration

The Fiance Visa,The DOS: online forms

After the terrorist attack in San Bernadino last week, Breitbart is among a few media sources that are questioning whether the female terrorist was admitted to the U.S. due to a failure in the fiancé visa application process.  The application process was changed by the Department of State in 2010 so that the first step is submission of an online application, DS-160, for all non-immigrant visas.
city-hall-california

The new online application began in January, 2010, and  was designed to allow for a preliminary review of the applicant and the desired visa category. (There are numerous categories of non-immigrant visas, with one type of visa for every letter of the alphabet ending at last check with W.)

In the San Bernardino case, the Islamic female was admitted to the U.S. as a fiancée, a “k” visa. She was most recently in conditional resident status, which she obtained after the marriage to her U.S. citizen spouse.

illegal-immigrationThere are reports that on her visa petition prior to entering the U.S. she gave a false address on the application. That information is required on the online form ds-160. (This form requires extensive background information and is time consuming. It has taken our office upwards of two hours to complete.)  If that is true, it does not explain how She was able to get by the in-person interview at the U.S. Consulate.  The primary objective of the consular interview is to assure that DOS (Department of State) is issuing the visa to a verified beneficiary of the visa petition.

The failure to find the erroneous address in the application resulted in an approval of the fiancé visa. It was missed again when she filed for her conditional green card after the marriage, although that process examines the bona-fides of the marriage which takes place in the U.S.
S_K_Tills_US_immigration

5th Circuit upholds injunction against President Obama’s Executive Memoranda

The 5th Circuit issued a permanent injunction against the 2014 Executive Actions by President Obama. (Nov 10, 2015)
See: http://www.ca5.uscourts.gov/opinions/pub/15/15-40238-CV0.pdf
Judge Jerry Smith issued the decision and was joined by Judge Jennifer Walker Elrod. The Majority decision mirrors the earlier decision affirming the grant of the Preliminary injunction. As is often the case, the interesting read is in the dissent.
The dissenting Judge, Carolyn King, argued that the 26 States that sued to stop the Exec. Actions (DAPA & DACA II) did not have “standing” to sue. 2 points from the dissent stand out: Firstly Judge King stated that the Majority grossly extended the States standing to sue, and secondly, they erred in denying the agency, DHS, authority ” to use its decades-long practice of granting “deferred action” to these individuals ” emphasis added. In reading the majority opinion, though, it’s the President’s decision to grant lawful status to an entire class of aliens, not on an individualized case- by-case basis, that the States and the Majority objected to.

From left, Judge Thomas M. Reavley, Appellate Judges: Chief Judge Carolyn Dineen King, and Judge Emilio M. Garza (Fifth Court of Appeals) taken at Baylor Law Schoo ..by Alan Hunt

Appellate Judges: From left, Judge Thomas M. Reavley, Chief Judge Carolyn Dineen King, and Judge Emilio M. Garza (Fifth Court of Appeals) taken at Baylor Law School ..by Alan Hunt (2004)

A key issue was whether States have standing to sue. The dissent cites a history of Supreme Court decisions which have limited the individual States of this Country the right to file suit in Federal Court to stop actions by the Federal Government. The dissent characterized as “The majority’s breathtaking expansion of state standing” that the States could challenge the President’s actions, and the “separation of powers” as prohibiting suit. The dissent doesn’t answer who has standing to challenge (if not the States) Executive authority and in what venue (if not Federal Court).
An additional and glaring omission from the discussion and the decision is what to make of an Executive Agency using a “memorandum” to change law, as opposed to an Executive Order.

U.S. President Barack Obama signs two Presidential Memoranda associated with his Executive Actions on immigration From his office on Air Force One upon his arrival in Las Vegas Nevada November 21, 2014.

U.S. President Barack Obama signs two Presidential Memoranda associated with his Executive Actions on immigration From his office on Air Force One upon his arrival in Las Vegas Nevada November 21, 2014.

This photo is provided by www.theatlantic.com

Sanctuary Cities

CENTER FOR IMMIGRATION STUDIES
A recent article by Judicial Watch cites a study by Center for Immigration Studies as to the increasing number of localities that are shielding illegal aliens from the reach of ICE*. (These advocacy groups lean right politically)   This study takes data from a report by Department of Homeland Security (DHS) in 2014 which was only made public earlier this month, in October, 2015. What’s surprising in the report is the growth in the number of localities involved in this sanctuary cities policy and the breadth, in the case of Colorado.
SANCTUARY CITIES
The graph of the growth in sanctuary cities resembles a “hockey stick”, laying flat on the ice with the blade pointing up.  (See DHS report attached below).  The start of the blade begins in April, 2014, which corresponds with the Obama Administration’s policy memo outlining the new priorities policy for detaining those with Immigration violations, which we touched on here in an earliest post.This map shows the 340 Sanctuary cities in the U.S. provided by Center for Immigration Studiessanctuary-cities
(Sanctuary Cities first became a policy of a few jurisdictions with a high percentage of Immigrants in order to shield illegal immigrants who agreed to assist law enforcement in criminal and other legal proceedings.)
It’s not clear that the Obama priorities memo should have led to the spike in sanctuary cities. The memo was meant to be used by DHS agents when they encountered aliens with Immigration violations to determine whether they should be held in ICE custody, according to the new priorities. For those with criminal backgrounds or prior Immigration violations, ICE officers would make an initial custody determination, after conducting an FBI background check.
The initial custody determination based on the priorities memo can later be challenged by the alien in Court. The memo wasn’t intended to give localities the responsibility to decide who they would allow DHS to encounter.  Colorado, for instance, has essentially made their sanctuary policy state-wide, as all Colorado counties are listed as sanctuary. (The Republican Presidential candidates have a debate there tonight)

Republican Presidential Debate at the University of Colorado in Boulder

Republican Presidential Debate at the University of Colorado in Boulder (Oct. 28, 2015)

According to Judicial Watch, the number of jurisdictions that are obstructing immigration enforcement has grown to roughly 340, according to the Department of Homeland Security. This has resulted in the release by local authorities of approximately 1,000 criminal aliens per month. ICE was not able to re-apprehend most of the offenders released by the sanctuaries. As of last year, 6,460 (69 percent) were still at large. Of those still at large, 1,377 (20 percent) had another criminal arrest following the one that resulted in the ICE detainer.
* U.S. Immigration and Customs Enforcement’s (ICE)ice
S_K_Tills_US_immigration

Kate’s law: What it would change

Bill O’Reilly at Fox News has been pushing the self-named Kate’s law in response to the murder by an illegal immigrant (Mr. Lopez-Sanchez) of Kate Steinle in San Francisco. Kate’s Law if passed by Congress would enact mandatory sentences on illegal aliens who re-enter the U.S. after having previously been deported. In Kate’s case, She was shot and killed by Lopez-Sanchez who had previously been deported at least 5 times including twice for having controlled substance (heroin) convictions. His second controlled substance conviction caused him to receive an “aggravated felony” charge of deportation which is a lifetime bar against returning to the U.S.. Nevertheless he chose to return and has been deported three times for illegal reentry after removal.  More importantly, Lopez-Sanchez has been criminally prosecuted in Federal Court 3 times,  and has 3 separate times served sentences of more than 50 months in Federal detention for ILLEGAL RE-ENTRY.

Lopez-Sanchez’s  criminal record can be found here:   http://dailycaller.com/2015/07/08/francisco-sanchez-kate-steinles-killer-used-30-aliases-over-the-course-of-a-25-year-life-of-crime/

MY THOUGHTS
Is the mandatory sentencing being proposed in Kate’s law supposed to change behavior, and prevent criminal aliens from re-entering the U.S. after being deported?  If spending 4+ year Federal sentences on three occasions for illegal re-entry didn’t keep Lopez-Sanchez out, would the recommended 5 and 10 year minimum sentences? Probably not. Especially, if the “sanctuary cities” policy like that of San Francisco continues.  What is that policy exactly?  That’s a topic for another day.

Do you need assistance?
If you are detained for immigration reasons or need to resolve your immigration status contact an Immigration Lawyer for good results.
Stephen K. Tills Esq.: an attorney and member of AILA, specializes in your area of need: Green Card Work Visa, Waivers, Detention, Citizenship, Fiance, Immigration.
Find out more:- call 716.662.5080 Immigration office of Stephen K.Tills Esq. in the Buffalo, NY.
Contact form :- www.TillsVisalaw.com email: stephen@tillsvisalaw.com

According to Donald Trump, 200k Syrian refugees are headed to the U.S.?

Presidential candidate Donald Trump made headlines again stating that the U.S. will admit 200,000 refugees from Syria.  The reality is that such an endeavor could only be completed over a span involving the next three or four President(s) terms.

The process involves the State Department, the Department of Homeland Security and the Department of Health and Human Services. The government also collaborates with the Office of the United Nations High Commissioner for Refugees – the U.N. agency that refers refugees to the U.S. – NGO’s like the International Organization for Migration, as well as national, state and local groups that provide on-the-ground assistance to those approved to resettle in the U.S..

Displaced Refugees from Syria - published by Reuters

Syrian Refugees walking to Germany & Austria – (reuters) courtesy of  www.bbc.com

Presently there is no UNHCR capability in Syria, the office in Demascus has been closed for several years. Nor is their a functioning Dept of State refugee office in Syria. A link to the Syrian embassy is attached. http://damascus.usembassy.gov/visas/political-asylum-and-the-united-states-refugee-program.html The U.S. DOS refugee admissions program can process Syrian refugee applicants at offices located in Turkey, Greece, and, Germany. The UNHCR  admissions program located in Amman, Jordan is for Syrian refugees  who will ultimately settle in numerous countries, including the U.S..

TODAY’S PROCESS
The application process is an individualized one, involving  potential arrivals going through extensive background / security / health screenings to ensure they are who they say they are, that they are truly fleeing persecution and that they will resettle peacefully in the U.S.. The security check in particular is a rigorous vetting process involving an in-person interview with a DHS representative. (Our recent experience with background checks in the region is that each case can take 6-12 months or more.)

Senior Fellow and Doris Meissner -Director, U.S. Immigration Policy Program

Doris Meissner -Senior Fellow and Director, U.S. Immigration Policy Program

After completion of the background checks, the applicant must still be interviewed to determine that he has a “well-founded” fear based on one of the 5 grounds for asylum: political, race, nationality, religious, or member of a particular social group.  Only after these checks are completed, and the applicants are successfully deemed refugees, do nonprofit resettlement agencies begin arrangements for placing people in specific locations.  According to former commissioner of the U.S. Immigration and Naturalization Service Doris Meissner in a recent U.S. News interview,  the U.S. is out of practice when it comes to responding to a massive refugee crisis.

“The ability that the United States has to actually bring people into the country as refugees or as immigrants, in the post-911 environment, is much more complex and takes a longer period of time.”  Ms. Meissner suggests that handling 10,000 refugee cases in one year is overly ambitious unless changes are made to the process.

Do you need assistance?
If you are detained for immigration reasons or need to resolve your immigration status contact an Immigration Lawyer for good results.
Stephen K. Tills Esq.: an attorney and member of AILA, specializes in your area of need: Green Card Work Visa, Waivers, Detention, Citizenship, Fiance, Immigration.
Find out more:- call 716.662.5080 Immigration office of Stephen K.Tills Esq. in the Buffalo, NY.
Contact form :- www.TillsVisalaw.com email: stephen@tillsvisalaw.com

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