Tills Visa Law

Stephen K. Tills, Attorney at LAW

Canadian Snow Birds Visit The Sunshine States

snowbirds_floridaCANADIANS in Florida
Canadians can stay in the United States a maximum of 182 days, or six months during the calendar year .
The purported “Canadian Retiree Visa bill“, which would allow Canadians over the age of 50 to stay in the States eight months, instead of the current six is still in limbo. Retired Canadians need to follow the Canadian rules to maintain their Canadian medical insurance. That requires Canadians to live in Canada for a certain time frame to remain eligible for health benefits in Canada. This may supersede any new bills being passed in the United States. (OHIP (Ontario Health Insurance Plan): The (Canadian) person must be physically present in Ontario for 153 days (about 6 months) in the calendar year to get coverage all year round.)
SNOW BIRDS MEMO
For now,  you can refer to the 2010 snow birds memo which addresses several issues for Canadians vacationing in the U.S.:
Summer 2010 Issue 75 Jul 16, 2010.
“A Canadian citizen who is granted entry into the United States under a B-2 Visitors Visa may be permitted to remain in the country for six months less a day. This could be 181, 182 or 183 days, depending on the date on which you enter. It is important to note that each time you enter the United States, even just for a few hours, it counts as one day. Each day that you visit the U.S. in a 12-month period will be counted and should be subtracted from the “six months less a day” that you intend to visit the United States in the winter.

Canada US Border Crossing

Canada US Border Crossing in 1941 Pipeline Ceremony with a Canadian RCMP (Quebec) and a State Trooper (Maine) photo provided by familypedia.wikia.com

Also, when you enter the U.S. for an extended period, such as six months, shorter trips outside of the country departing from and returning to the U.S. do not count as days that you can subtract from your “six months less a day” count. This is the case even if you return to Canada for a week or two during the holiday season.

Those seeking to stay beyond 6 months are advised to formally request the extension at a Port of entry or by filing an I-539, application to change / extend visitor status.
BORDER CROSSING
It is important to note that a U.S. Customs and Border Protection officer has the authority to limit your visit to the United States to any period of time that he/she sees fit. So, do your best to be accommodating when they question your intentions and length of stay. The wrong attitude could cost you days in the sun.

What Happened to the 240-day Visa?
About the JOLT Bill

JOLT Act (Jobs Originating through Launching Travel Act), a measure that has already been passed by the Senate but still needs to be acted on by the House of Representatives. published by Ingleinternational.com

The JOLT bill was introduced in 2011. The bill has nearly 150 sponsors in the ‘House’ but is not yet a law. On January 3, 2017, congress reconvenes. Another year to see what happens with the Jolt proposal. Historically, not a lot of bills get passed.
snowbirdsTRAVEL Insurance
When you prepare for your long travels across the border, it is important that you contact your insurance company to get the latest guidelines. You provincial Health insurance may have certain limitations on coverage to emergencies that could happen after you have crossed the border for your snow bird migration. Contact the Royal Canadian legion and Canadian Snow-birds Association (CSA) for details. The CSA has recommended Medipac Travel Insurance as their preferred choice in travel insurance for the past 19 years.

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Real Immigration Reform would help drain the Federal Court swamp.

The American Immigration Lawyers Association, AILA, has reacted to the election of Donald Trump with  . . let’s say . . .  concern, to keep it  non-inflammatory. But AILA should see a great opportunity for much needed improvements in the Immigration laws of our country.  Here are a couple . . . in my mind . . . . no brainers.

1,  Include Dairy workers in the category of agricultural workers authorized to receive non-immigrant employment visas.  Under current law they can’t. (unless they have a B.S. from an Ag school, like Texas A&M for instance, then they qualify for H1-B. But not many College grads opt for hands-on dairy work)

2,  The change that is so obvious (but would cause a near seismic reaction in the AILA boardroom) is to change the system of deportation for criminal aliens.  We currently have a system that was introduced in the 1940s, and lumps all convictions, whether foreign or domestic into categories of deportable offenses. E.g., Controlled substance offenses, weapon offenses, Aggravated Felonies,  and . . . the one most confusing,  Crimes Involving Moral Turpitude (CIMTs).  Now, the objective was understandable, to take convictions from foreign jurisdictions, and attempt to fit them within our system of jurisprudence.

However,  to apply that methodology to convictions from States within the U.S. is so unnecessary and outdated. (like the phonebook)  State penal codes are now easily accessible on-line, so they can simply be listed on a state-by-state basis.  E.g., “These convictions in (Ohio) are deportable offenses: 1,  THEFT,  Ohio Revised Code § 2913.02, . . .  etc.  Thus, a non-citizen could know that if he/she commits this offense, they are subject to deportation.   Instead, the current system would charge that conviction along with many other offenses as being a CIMT .

The problem with the current system, using CIMT as the example, is that there is constant litigation over issues involved with CIMT, in Federal Courts, including the  Supreme Court.  What qualifies as a CIMT?,  What records may be examined to make the determination?, and on and on.  There have been no less than 3 Supreme Court decisions in the last 4 years over issues involved with CIMT.  So, while it keeps AILA and its members, like us, very busy, the time has come to . . .  pull the plug  . . . let the swamp drain. Simplify the process.

Instead,  all 50 States penal codes should be referenced, e.g.,  Announce,  “Okay, These convictions are deportable offenses, . . . . ,  and you can be subject to deportation, with some defenses.  More serious crimes: “Committing these crimes will result in automatic deportation with (nearly) no defenses. ”

It is often said that the current deportation system is back-logged. It’s true and the reason is obvious.

 

 

 

The next President’s “Extreme Vetting” of Muslim immigrants may rely on post-9/11 provision.

THE NSEERS PROGRAM REGISTRATION
If President Trump decides to implement his promise of extreme vetting of certain muslim immigrants,  he can utilize an existing law  passed in response to the 9/11 attacks.  The NSEERS ( National Security Entry-Exit Registration System ) program was created by regulation in November, 2002, to vet persons from certain countries who were already in the U.S. , as were the Islamic radicals involved in 911, most having student visas.

NSEERS Documents

NSEERS Documents …photo provided by KVIA.com

Border Crossing

Border Security…photo provided by barenakedislam.com

From August 2002 until April 2011, nonimmigrants from 25 predominantly Arab and Muslim countries were required to register under the NSEERS program each time they arrived in or departed from the United States, or had to obtain a waiver of these requirements. NSEERS  required immigrants  present in the U.S. from Muslim-majority, Arab, and South Asian countries to register their presence, fingerprints, and photographs with local immigration offices or officers at U.S. ports of entry. While the Obama administration discontinued the reporting requirements of NSEERS in 2011,  the law still exists and could be renewed by simple executive order.

DISCRIMINATION OR SECURITY?
Following its passage in 2002, The NSEERS program was criticized by human rights groups as excessively discriminatory and ultimately ineffective.  Other non-partisan reports showed that it may have been an effective law enforcement tool.   E.g., 83,000 men complied with the National Security Entry-Exit Registration System program, and more than 13,000 of them were placed in deportation proceedings. An inspector General (OIG) report in 2011 stated that the program was obsolete and should be eliminated.

Nwe finger Printing photo from wikimedia

NEW Finger Printing Speeds up Processing …photo from wikimedia.org

New Judge at Immigration Court in Buffalo New York

Walter H. Ruehle, Immigration Judge, Buffalo Immigration Court.
Attorney General Loretta E. Lynch appointed Walter Hammele Ruehle to begin hearing cases in September 2016. Judge Ruehle earned a Bachelor of Arts degree in 1976 from the State University of New York at Oneonta and a Juris Doctor in 1979 from the Union University Albany Law School. From 1993 to September 2016, he served in various capacities for the Legal Aid Society, including as an attorney, director of the Immigration Program, and director of the Upstate New York Immigration Law Project.
From 1991 through 1993, he served as an associate attorney for the Law Offices of James J. Piampino, in Rochester, N.Y. From 1990 through 1991, he served as a staff and directing attorney for the Neighborhood Legal Services, in Hartford, Conn.
From 1979 through 1990, he served in various capacities for the Farm worker Legal Services of N.Y., including as a staff attorney, supervising and managing attorney, litigation director, and legal consultant. In 2012 and 2013, he also served as an adjunct professor at the Cornell Law School.
Judge Ruehle is a member of the Connecticut Bar and the New York State Bar.
justice_seal_usa

DHS mistakenly grants citizenship to deported aliens. Q: Can citizenship be revoked?

Amidst the coverage of the terrorist bombings in New York and New Jersey on Monday (Sept.19/16), a story broke that DHS mistakenly granted citizenship to some 800 aliens who were under orders of deportation.

FBI agents walk around the roof outside an apartment during an investigation at a building Monday, Sept. 19, 2016, in Elizabeth, N.J. FBI agents are searching the apartment in New Jersey that is tied to Ahmad Khan Rahami wanted for questioning in the New York City bombing. (AP Photo/Mel Evans)

FBI agents walk around the roof outside an apartment during an investigation at a building Monday, Sept. 19, 2016, in Elizabeth, N.J. FBI agents are searching the apartment in New Jersey that is tied to Ahmad Khan Rahami wanted for questioning in the New York City bombing. (AP Photo/Mel Evans)

The explanation was that the people had been deported under different names, and that their fingerprint results were lost or unavailable.  That deserves further inquiry. How are non-citizens identified in the Immigration system so that their identity is a certainty to adjudicators?
THREE WAYS
1) Name checks
2) Fingerprints
3) Alien Identification Number.

Name checks are an easy but less secure way of verifying identity. (Many countries / cultures have common given names, e.g. Singh, Hossain, Smith). Fingerprinting is the most reliable means of identification, and all applications granting lawful status in the U.S. require them.  The Alien Identification Number gets assigned to aliens if they are granted Immigration status by U.S. CIS or are if they are arrested by U.S. ICE.

Immigration C E courtesy of Womeininhomelandsa.com

ICE (U.S. Immigration and Customs Enforcement) photo courtesy of Womeininhomelandsecurity.com

If an applicant for Naturalization failed to disclose the use of a different name during a deportation case DHS may not know it absent fingerprints.  But such a failure to disclose could be the basis of a Federal Criminal charge, and /or a new basis for deportation.

CAN DHS UNDO THE GRANT OF CITIZENSHIP?
Yes, the Attorney General has the duty to file a denaturalization claim in Federal Court.  Authority for denaturalization is found at 18 U.S. Code § 1425 – Procurement of citizenship or naturalization unlawfully.   The statute of limitations for a Federal Court charge of denaturalization is 10 years.

More than 800 immigrants mistakenly granted citizenship…read more->bigstory.ap.org

Homeland Security Department headquarters in Washington. The U.S. government has mistakenly granted citizenship to at least 858 immigrants..photo courtesy of bigstory

Homeland Security Department headquarters in Washington. The U.S. government has mistakenly granted citizenship to at least 858 immigrants..photo courtesy of yahoo.com

Sikh man who found bombing suspect: ‘I did what every American would have done’ — FOX6Now.com

What Harinder Bains did isn’t unusual: He saw something suspicious and called police. But who Harinder Bains is makes this story special. Bains is the bar owner who led police to Ahmad Rahami, the suspect in the New York and New Jersey blasts. While officials haven’t pinned an exact motive to the Afghanistan-born Rahami’s act,…

via Sikh man who found bombing suspect: ‘I did what every American would have done’ — FOX6Now.com

The Diversity VISA

DIVERSITY VISA LOTTERY
U.S. Immigration Law attempts to accommodate the World-wide demand for Immigrant visas through Family based sponsorship, Employment-based sponsorship, and for those fleeing persecution.  A lesser known category is the Diversity Visa(DV).  Some 50, 000 Immigrant visas are allocated each year to lucky winners of the Visa Lottery, which is offered only to citizens of countries with otherwise low rates of emigrating to the U.S..  For fiscal year 2018, the Department of State has announced that the application process for the 50,000 visas will occur from October 4 to November 7, 2016.

Immigration Diversity (DV) Lottery

U.S. Immigration Services

Those countries that have had fewer than 50, 000 Immigrant visas issued by the U.S. in the past fiscal year are eligible.  The countries not eligible for the Diversity Visa this year are Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

United States Immigration Diversity Lottery

United States Immigration Diversity Lottery

Applications from natives of the eligible countries are randomly selected and are required to provide passport style photos taken within the past 6 months.  Applicants also have to provide extensive biographic information but a completed background check is necessary only if their application is selected.

Correct Photo Placement for Diversity (DV) Application

Correct Photo Placement for a Diversity Visa (DV) Application, photo courtesy of dvlotteryhome.com

Notes on the Trump Immigration Plan

Presidential candidate Donald Trump set forth his proposed changes to Immigration policy, as follows:

  •  Build the wall
  • Cut Federal funding to Sanctuary Cities
Trump on Immigration photo provided by vox.com

Donald Trump on Immigration,  Sept 6, 2016.  photo courtesy of vox.com

The House Appropriations Committee in July 2015 adopted an amendment into a spending bill that would make “sanctuary cities”  ineligible for federal grants if they refuse to cooperate with federal officials in immigration cases.

  •  End the catch and release policy for undocumented immigrants and instead return them to their country of origin.

In 2014, Border Patrol agents received written guidelines instructing them that the vast majority of illegal immigrants in the U.S. are off limits to federal agents and are substantially immune to detention and deportation. The training materials, when coupled with a November 20, 2014 memo on prosecutorial discretion from Homeland Security Secretary Jeh Johnson, indicate that agents should primarily only arrest someone who they directly see cross the border, if they are a wanted criminal, a convicted felon, have an extensive or a violent criminal history, or otherwise pose a national security or public safety threat.

  •  Have zero tolerance for undocumented immigrants who have committed a crime, and deport them.

That would require a change in the law.  For lawful residents that have resided in the U.S. for more than 5 years, a single misdemeanor or felony conviction would likely not be a removable offense. It usually takes two or more.   

  •  Triple the number of deportation officers at the department of Immigration and Customs Enforcement.  Add 5,000 additional border patrol agents.
  •  Repeal President Obama’s executive orders that temporarily protected undocumented immigrants from deportation and authorized them to receive work permit.

The only DACA program that survived judicial review is DACA I. DACA II and DAPA were blocked by the Texas Court and on appeal by the Supreme Court.

  • Stop issuing visas to any country where “adequate screening cannot occur” that might endanger national security
  • Ensure foreign countries take back deported immigrants from the United States (Mr. Trump said 23 countries refuse to do so).

 The countries that refuse include China, India, Cuba, Pakistan, Vietnam, Honduras, Nicaragua, El Salvadore, and a number of island nations in the West Indies. 

  •  Complete a biometric entry and exit visa tracking system under development. “It will be on land, it will be on sea, it will be in the air,” he said.

The biometric entry system is used currently for applications for LPR status, and most extended visitor visa applications but not for visitors arriving by car and plane at a port of entry.

Champlain. new York, Port Of Entry, courtesy of Architects

Champlain. New York, Port Of Entry, courtesy of Architects

Amnesty and Presidential politics

The press has been questioning whether the presidential candidates support “amnesty” for illegal immigrants. Donald Trump is expected to give a speech on Wednesday (Aug 31, 2016) regarding his proposed Immigration policy. What does the press mean when they use the term amnesty?

AMNESTY defined (Black’s Law Dictionary):
A sovereign act of pardon and oblivion for past acts, granted by a government to all persons (or to certain persons) who have been guilty of crime or derelict, generally political offenses.

Q: In the Immigration context, what is being pardoned?
Under the U.S. Immigration law, A Foreign National (FN) who enters the U.S. without being inspected and admitted (EWI) is not eligible to remain in the U.S. and obtain lawful status. That includes non-immigrant visitor status, or lawful permanent resident status (Green Card). The only exceptions are for those seeking asylum , and those whose removal would result in “Extremely Unusual” hardship to certain U.S. citizen family members.
So, an exercise of amnesty would allow those in EWI status an opportunity to apply for legal status, without having to leave the U.S..

Q: Who are the beneficiaries of Amnesty:
Basically, we can divide the illegal population into 3 groups:

Those foreign nationals in the U.S. who have
1) entered the U.S. illegally, or
2) over stayed their non-immigrant visas (NIV), or
3) disobeyed an Order of Deportation requiring that they leave the U.S..

In the case of #1, those who have entered the U.S. without being inspected or admitted are very limited in their ability to obtain legal status. They cannot apply for valid non-immigrant status or Lawful permanent resident (green card) status while still in the U.S.. The limited exceptions to this are for those who are from countries that have received Temporary Protected Status (TPS) (which was detailed here in a recent post). Or for those fleeing persecution in their country and are granted asylum.

The only other option for #1 is what we practitioners consider to be the PRIMARY AMNESTY provision, and that is for those whom INA section 245(i) applies.

245(i) is a route to lawful permanent resident status for those who can show that they were the beneficiary of an LPR visa petition prior to a certain cut-off date,  that they were physically present prior to that date, and THAT they pay a penalty ($1,000).   The current date for eligibility under 245i is April 30, 2001, (along with physical presence as of December 21, 2000).  If the FN has visa receipt and physical presence, by the cutoff dates, and they pay the penalty they can obtain a “green card” if a visa petition is approved.

In the case of #2, those who entered the U.S. legally with a visa, or were visa exempt, but overstayed, they are permitted to file for LPR status if petitioned by a U.S.C. immediate relative (spouse, parent, or child over 21).  They can also obtain LPR status through an employer or non-immediate family member if they are 245(i) eligible. If not 245(i) eligible, they must return to their country and attempt to consular process the immigrant visa (subject to any bars of admissibility)

In the case of #3, those ordered deported,  they cannot file for green card status while under a Deportation order.  They must successfully file a motion to reopen the Deportation case, and have the Order rescinded.  Due to time limitations imposed by law,  an Order can only be reopened upon motion filed jointly with the DHS attorney assigned to the case.

So,  if amnesty means obtaining LPR (green card) status, then the above rules apply.

Q:  What about citizenship?

FNs can only obtain citizenship in the U.S. if they first obtain LPR status. An illegally present FN cannot be granted citizenship without first being granted a green card.  They can apply for citizenship after having green card status for 5 years (3 years if obtained by marriage to U.S. citizen) and meet all other requirements of citizenship (physical presence, good moral character, etc.)

We don’t know yet what the candidates have in mind when they are questioned about “amnesty“.  We practitioners know that the current amnesty provision, 245i, as outlined above requires having a petition filed prior to April 30, 2001, and the payment of a $1,000 penalty.  We  also know that citizenship can only be applied-for after LPR status is acquired.   Thus, it would not be correct, under current law,  for a candidate to say they supported green card status, but not citizenship.

If a candidate does support a new amnesty provision,  a simple change in the law would be a new date for the 245i provision,  one more recent than 2001.

Waivers to Enter United States of America

Immigration To Enter The United States of America

Melania Trump’s Visa Controversy

There is speculation by some in the media that Melania Trump may have obtained her lawful permanent resident status, LPR, (Green card) despite having a possible visa violation.

Melania and Donald Trump

Melania and Donald Trump

Let’s skip the speculating, because we don’t know what her status was prior to her marriage with Donald Trump.  But, based on what we do know, we can discuss as follows:

1.  Was Melania, born in Slovenia, permitted to conduct a photo shoot in the U.S. in the mid-nineties?

She is reported to have had the name Melania Krauss when She performed modeling shoots in the U.S.. As a model, like any other non-immigrant who has not obtained a work permit, She cannot be employed in the U.S..  She can work for free, She can be self-employed, or She can run a business, but She can not be a paid employee of a U.S. company without work authorization.

So, yes, She was permitted to do a photo shoot but could not be paid.

2. In what specific visa status could She work as a model?

***      B-1 business visitor.  If She was not paid for her work.  The most common visitor visa, with a maximum stay of 6 months, the B visa is issued to tourists as a B-2, or for business as a B-1.

USA Visa Law

USA Visa Law

Models use the B-1 for photo shoots to build a resume and pardon the pun, exposure.  They cannot receive pay for the work.

Ms. Trump could have done the same activity if She entered under the Visa Waiver program, with maximum stay of 3 months,  except that Slovenia, a part of the former Yugoslavia, wasn’t added as a U.S. visa waiver country until September, 1997.

***  H-1B visa.  This category is usually reserved for persons in high-skilled employment, with at least a bachelor’s degree,  but an exception has been made for modeling. The H-1 visa permits compensable employment and a continuous stay in the U.S. for up to 3 years, and then is renewable for an additional 3 years.

3.  What if Melania worked without authorization (for compensation) prior to her marriage to Trump and subsequent Immigrant Visa application?

It would not have prevented her from filing the visa application.  Spouses of U.S. Citizens are given special status throughout Immigration law, and applying for Lawful Permanent Resident LPR status is one example.  Unauthorized employment in the U.S. does not make spouses of U.S. citizens in-eligible to file for a green card.

 

 

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