Immigration

How Alcohol and Drugs Can Affect Your Immigration Status

There are three major ways that alcohol and drugs can affect immigration status: substance abuse, criminal convictions, and criminal association. Not only can drugs and alcohol prevent you from getting a green card, but they can make you deportable. It is important to note that everyone’s case is different. In some cases, you do not need a conviction to be considered inadmissible or deportable. In other cases, a criminal defendant can plead guilty to a felony drug trafficking charge and preserve his or her immigration options. Below are a few common ways that drugs and alcohol can affect immigration status.

 

Drug Addict or Alcoholic

Under 8 U.S.C. 1182, any alien who is determined:

(I) to have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others, or

(II) to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior, or

(iv) … to be a drug abuser or addict,

is inadmissible.

If an immigration applicant admits to doing drugs or drinking to a point of self-harm, he or she may not be able to obtain a green card or enter the United States. When a USCIS or consular officer suspects an applicant is a drug addict or harmful alcoholic, the officer will likely refer the applicant to a civil surgeon for a medical review. If the civil surgeon concludes the applicant is a drug addict or harmful alcoholic, any application for a green card or visa will be denied. In addition, even though alcoholism isn’t an explicit inadmissibility ground, alcoholism tends to lead to harmful behavior that is. It is important to never freely admit to or discuss any drug use or any problematic alcohol use with anyone.

Even if a person is already in the United States, he or she could be deported. Under 8 U.S.C. 1227(a)(2)(B)(ii), “any alien who is, or at any time after admission has been, a drug abuser or addict is deportable.” Although there are few ways that ICE agents can prove a person is a drug addict, people aren’t always the smartest when it comes to addiction. ICE agents can come across evidence of drug addiction through a person’s posting on social media or admission through Drug Court programs.

 

Criminal Convictions

Under 8 U.S.C. 1182, a person is inadmissible if he or she is convicted of, admits committing, or admits committing the essential elements of a violation of (or a conspiracy or attempt to violate) any law relating to a controlled substance. There is a time-consuming waiver available only for cases involving less than 30 grams of marijuana.

There are a few major concerns with this ground of inadmissibility. First, a person does not need a conviction to be found inadmissible! Simply “admitting” to possessing drugs is grounds for inadmissibility. Second, the term “controlled substances” relates to federal, not state, law. Even though marijuana is now legal in a few states and countries around the world, it is still a Schedule I Controlled Substance under federal law. Third, this ground of inadmissibility involves actions “relating” to controlled substances; anything from drug paraphernalia to trafficking to drug money laundering could have severe immigration consequences.

For deportations, the law is somewhat different. In order to be deported for a drug-related crime, a person must have a conviction for an offense relating to a controlled substance as defined under federal law. There is also an exception for a single conviction involving possessing for one’s own use of 30 grams or less of marijuana. Convictions “relating to” a controlled substance include possession, trafficking, misbranding, adultering or selling. In addition, different states have different types of diversionary programs that may actually qualify as “convictions” under immigration law. Never assume that a dismissed or expunged charge won’t have lasting immigration consequences.

 

Drug Association

In some cases, a person does not need to admit to a crime or have a conviction to be considered inadmissible. One of the harshest provisions under immigration law relates to noncitizens and drug trafficking. The law punishes anyone even associated with drug trafficking activity or financial gains from either obtaining a visa or green card, or entering the United States at all.

Under 8 U.S.C. 1182(a)(2)(C), Any alien who the consular officer or the Attorney General knows or has reason to believe

(i) is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so; or

(ii) is the spouse, son, or daughter of an alien inadmissible under clause (i), has, within the previous 5 years, obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity,

is inadmissible.

Thus, consular officers only need a “reason to believe” an immigration applicant is associated with drug activity or profits. Under this provision, immigration officials can use all sorts of evidence, including evidence from a criminal case that was dismissed, withdrawn or from which a noncitizen was found not guilty. The type of evidence is endless: family members’ association with drug gangs, financial records, fancy and high priced purchases, etc. This provision of the law punishes family members who turn a blind eye to drug trafficking activity.

 

Because of this highly complex area of law, it is important to retain the expertise of an immigration attorney. The attorneys at Skinner Law Firm can assist you if you have be charged with, accused of, or refused a visa anything relating to a controlled substance. Even if you cannot avoid a conviction, a carefully crafted case can preserve your immigration benefits and your future. Contact us today for a consultation.

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Voluntary Departure: When Self Deportation is the Best Option for Noncitizens

Passports

Voluntary departure is a form of immigration relief. Its meaning is exactly how its read – a person voluntarily agrees to depart the United States. It is usually the best option for people who truly have no other form of relief, and wish to one day return to the United States to live, work, study or tour.

If granted, a noncitizen can leave the United States on his or her own terms (up to a period of 120 days) and more importantly, leave without the stigma of an Order of Removal imposed against him or her. With an Order of Removal, a person would be barred from entering the United States or obtaining an immigration benefit for a certain number of years.

However, it is only available to certain applicants who meet a certain set of criteria. Characteristics that make a person ineligible for voluntary departure no matter when it is requested, including persons who were previously granted voluntary departure, arriving aliens, aggravate felons and terrorists. In addition, a very important factor for voluntary departure is when it is requested – before, during or after removal (deportation) proceedings.

Requesting Before Commencement of Removal Proceedings

Requesting voluntary departure before any immigration hearing is scheduled is the most flexible option. The noncitizen would work out an agreement with the Department of Homeland Security (DHS), and without a judge’s inquiry into any negative characteristics, such as police contact.

If granted, DHS may give a person up to 6 months (120) days to leave. This allows the most amount of time to have arrangements made for housing leases, moving expenses, bank accounts, employment terminations and family arrangements.

Requesting During (at the Beginning) of Immigration Proceedings

The first hearing in removal proceedings is the Master Hearing. In order to be granted the same departure benefits as Section A (above), the noncitizen must request voluntary departure at the Master Hearing. When a noncitizen requests voluntary departure from an immigration judge, he or she must admit certain facts and give up certain rights.

The noncitizen must admit he or she is removable, must give up the right to appeal and must give up the right to apply for any other type of immigration benefit. For example, an applicant cannot request voluntary departure and cancellation of removal, asylum, TPS or other humanitarian protections at the same time. An immigration judge has wide discretion in granting or denying voluntary departure.

Requesting At the Conclusion of Removal Proceedings

Even if a noncitizen fights removal, there is still a chance to request voluntary departure. However, the law is much stricter at this point. If granted, the noncitizen will only have 60 days to leave the United States.

In order to be eligible for voluntary departure at the end of removal proceedings, a noncitizen must prove he or she:

  • Has been physically present in the United States for at least one year;
  • Has been a person of “good moral character” for the past 5 years;
  • Does not have a conviction for an aggravated felony;
  • Has the means (financial and travel ability) to leave the United States;
  • Will post a bond (at least $500) ordered by the immigration judge;
  • Can show valid travel documentation, including a valid passport.

The consequences of a denial of voluntary departure are severe: the noncitizen not only must leave the United States, but he or she will be subject to a Removal Order. A Removal Order prevents a person from entering the United States for a period of not less than 5 years. There may also be time bars based on accrual of any unlawful status. A denial of voluntary departure cannot be appealed.

Voluntary departure may be the best option, especially since it allows a person to one day become eligible for an immigration benefit. This is incredibly important for families, students and people who have built their careers within the United States.

If you are interested in seeking voluntary departure, then contact an experienced immigration attorney in Pennsylvania at Skinner Law Firm today. Our offices are located in Media in Delaware County and West Chester in Chester County, PA. Call (267) 388-3476 today.

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What to Expect During a Green Card Marriage Interview at USCIS

Gavel Law Scales of Justice

 

One of the most scrutinized, carefully reviewed areas of immigration law is obtaining a green card through marriage to a U.S. citizen. Not only is this one of the fastest ways to obtain a green card, but it is one of the fastest ways to obtain U.S. citizenship. With a green card, spouses are free to live, work and travel to and from the United States.

Even in the case of divorce, most green card recipients can retain their lawful status and eventually obtain citizenship. As a result, U.S. Citizenship and Immigration Services (USCIS) officials are always on the prowl for fraudulent marriages. If caught in a fraudulent marriage, both the petitioner and beneficiary could be charged criminally, and the beneficiary could be deported.

In order to deter fraudulent marriages, both the U.S. spouse and the immigrant beneficiary must attend a marriage interview. During the interview, USCIS officials will be looking for signs of a “bona fide” marriage – in other words, a real and legitimate marriage, not one that was entered into for the sole reason of obtaining a green card. A USCIS official will carefully review all paperwork submitted and will want to question the parties. Here is what to expect before, during and after a green card marriage interview.

What to Do Prior to the Marriage Interview

Prior to the interview, all applicants and petitioners will need to submit relevant evidence. Required documents include birth certificates, copies of passports, photographs, and a marriage certificate. Married couples will also be asked to submit evidence of a real marriage. It is important to start gathering this evidence prior to filing any applications. Having sufficient evidence of a bona fide marriage before an interview makes a tremendous difference.

Both the petitioner and beneficiary also have additional requirements. A petitioner will have to submit evidence of financial support of his or her immigrant spouse. A beneficiary will have to undergo a medical exam to prove no health-related grounds of inadmissibility. Submitting proof of these requirements before the marriage interview will make the process that much easier.

What to Expect During the Marriage Interview

Unfortunately, due to wait times, couples may actually spend more time in the waiting room than in the actual marriage interview. Once in the actual interview, a USCIS official will review all paperwork and may ask brief questions. Common questions include asking how the couple met, when they got married and where they currently live.

So long as the USCIS official is satisfied, the green card application will be granted. However, some couples by the very nature of their marriage may catch the scrutiny of immigration officials. Common traits that are sometimes given extra scrutiny include:

  • Large Age Gaps: Large age gaps will draw attention of USCIS because different age groups tend to have different interests. USCIS will take notice of a foreign text-savvy millennial married to an old-school baby boomer.
  • Short Engagements: USCIS officials may question the validity of a marriage when a couple had a very short engagement/courtship, or only met in person once or twice prior to a proposal.
  • Vast Social and Cultural Differences: People of all religions, languages, races and socio-economic backgrounds fall in love, but vast differences including one spouse’s extreme religious practice and another’s suspicious cultural beliefs will be questioned.
  • Uninformed Spouses: Understandably, spouses may not know each and every detail about their loved ones. However, not knowing each other’s birthday, the names of their in-laws, or their spouse’s occupation is troublesome.
  • Daily Living Arrangements: Not every spouse can pinpoint exactly where the blender or vacuum is located in the shared house, but all spouses should know how many rooms, bathrooms and garages there are in the home.
  • Too Young & Too In Love: Very young couples sometimes don’t have years of financial stability and matureness to prove a bona fide relationship, or at least one that they intend to last.
  • Marriage in Removal: The most scrutinized marriages are those entered into during removal proceedings. Couples are subject to a second interview involving intense questioning to determine if the sole reason for marriage was to prevent deportation.

Couples tend to show a bona fide marriage through a variety of ways, including submitting photographs, joint bank accounts, and joint rental leases. Even with the submission of these documents, USCIS officials are trained to inquire deeper than the actual documents.

They may ask follow up questions such as when were the submitted photographs were really taken; have there been actual withdrawals/deposits into the joint bank accounts; do both parties truly live at the rental address, and so on. Here, the motto ‘more is less’ comes into play: the more evidence of a bona fide marriage, the less scrutiny it will draw, even if any of the above scenarios apply.

What Happens After the Marriage Interview

If everything goes well, a beneficiary’s adjustment is usually granted and a green card is mailed out shortly thereafter. If USCIS officials remain suspicious, however, the couple may be sent to a second interview known as the marriage fraud interview. The purpose of this interview is to root out serious inconsistencies of the parties’ statements. The parties are usually separated and asked questions which may be very personal and specific, including:

  • What side of the bed does your spouse sleep on?
  • What did you spouse eat for breakfast this morning?
  • Who paid the last electric bill?
  • Who is your spouse’s best friend?

In extreme situations, Immigration and Customs Enforcement (ICE) agents may do their own supplemental investigation. Whether your case involves one or two interviews, having an attorney can make all the difference. If you and your spouse cannot submit proof of a bona fide marriage, it may be more difficult to obtain a green card.

Thus, preparation for a marriage interview – or a subsequent marriage fraud interview – is essential. If an application to adjust status is denied, the consequences range from forfeiture of fees to initiation of removal proceedings.

We Represent Clients in Green Card Marriage Interviews

If you are facing a marriage interview at any USCIS office, call us today. We are experienced in all matters of immigration law, including green card applications and marriage interviews. We have offices in Westchester in Chester County, PA, and in Media in Delaware County, PA.

Contact us today at 267-388-3476 to schedule a consultation with one of our immigration lawyers and to discuss your particular case.

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Two For the Price of One: B2 Visitor Visa Information Ahead of Pope Francis’ Visit

Capri Nations

TWO FOR THE PRICE OF ONE:

B2 VISITOR VISA INFORMATION AHEAD OF POPE FRANCIS’ VISIT

With the upcoming September 2015 World Meeting of Families set to take place in Philadelphia, it will be the first (and likely last) time most Americans will be able to see Pope Francis.  Considering the excitement of the event, it is not uncommon that people wish to use this event to invite foreign relatives to the United States. Inviting relatives to visit the United States is not as simple as boarding a plane and passing through customs. A majority of foreign nationals need a tourist visa to travel to the United States. Only a small population of nationals from mostly European and a few South Asian countries may apply for a visa waiver program.[1]

Any person wishing to tour the United States must obtain a B2 Tourist Visa from a nearby American Embassy or Consulate. Generally, a foreigner submits an electronic application, pays the filing fee and schedules and attends an interview. Each Consulate may require additional local rules, so it is important to call or go to the consulate’s website beforehand. In addition, the interview and processing times vary from city to city. Some cities can see a B2 applicant interviewed and processed within a week; other countries require at least a month for each. Interview and processing times can be checked through the State Department website here.

Shortly after the interview, he or she will receive an approval or denial. Even with an approval, a tourist visa only guarantees a person is allowed to get to the United States. Once at Customs, depending on certain grounds of inadmissibility, entry may still be denied. There are many reasons why an otherwise eligible applicant’s tourist visa could be denied.  The application asks many questions regarding personal, criminal, previous immigration and familial information. A single mistake could result in a denial. Consider the following:

Luiz, a Brazilian national, applies for a tourist visa. On his application, Luiz lists his purpose as travel for two months, and lists a four-star hotel in New York City as his location. However, in reviewing his occupation, immigration officials notice he has a low to moderate income and little to no documents showing how he will pay and support himself in New York City. At his interview, Luiz is shocked to almost immediately be given a denial.

In this scenario, Luiz may have mistakenly forgotten to indicate that his parents were paying for his trip out as a gift for his recent graduation. He also may have forgotten to submit documents to support this. These documents could have included receipts, a letter from his parents’ credit card company confirming his authorization on their card and even affidavits from his parents. Unfortunately, he will have to apply again, hopefully in time for his travel.

However, most B2 Visas are denied because the applicant can’t prove he or she intends to enter and stay only as a visitor, with the intent to actually leave the United States sometime in the future. This requirement is mandated by immigration law and immigration officers must consider it when reviewing an application. The reason tourist visas are carefully scrutinized is because of the potential for abuse: anyone who could easily obtain a tourist visa could enter, overstay and remain in the United States illegally with little to no effort. Immigration officers have carefully selected ways of detecting who truly intends to enter as a visitor.  Consider the following:

Bo, a Chinese national, wants to travel to the west coast of the United States for a tour of national parks. Only wanting to visit a few big parks, but not knowing exactly which ones, she applies for a tourist visa for 2 weeks. Unlike Luiz, Bo submits B2 supplemental documentation that she believes proves she is only staying in the United States temporarily, and will actually leave: a letter from her employer granting vacation leave, bank accounts showing sufficient funds in Chinese banks, affidavits from her boyfriend, her apartment lease contract, and even submits proof that she has previously visited other countries’ national parks as a token of her hobby. After processing, her visa is approved.

Many tourist visas are used to visit relatives, and as a result, an applicant can’t provide receipts from hotels. In these situations, it may not be clear to immigration officials how a foreigner will support himself or herself while in the United States. In these situations, an applicant may need to dig deeper for documents from relatives or have his or her relatives submit an Affidavit of Support, which is an official immigration form. It is very important to prepare and file these documents truthfully and correctly, as a relative may be liable in the event a foreign national becomes a public charge.

If you reside in the United States and wish to invite a foreign relative to visit, including the upcoming Meeting of the Families event in Philadelphia, preparation and presentation is vital. In some cases, your relative may be ineligible to apply for a tourist visa based on a past immigration violation or current condition. In these cases, it is important to save time, money and effort by contacting an attorney beforehand for assistance. Call us today at (267) 388-3476 to inquire about obtaining a tourist visa for your loved ones.

 

[1] As of June 2015, these countries include only: Andorra, Australia, Austria, Belgium, Brunei, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Irelan, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, Taiwan and the United Kingdom. See Here for more guidance.

 

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Effects of 5th Circuit’s Decision On Expanded DACA And DAPA Executive Actions

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 EFFECTS OF 5TH CIRCUIT’S DECISION ON EXPANDED DACA AND DAPA  EXECUTIVE ACTIONS

On May 26, 2015, the 5th Circuit Court of Appeals denied the government’s request to lift an injunction currently placed on President Obama’s expanded executive action programs known as DACA/DAPA. Essentially, this means removal proceedings will still continue against people otherwise eligible for the expanded programs’ benefits. Most of these people include undocumented parents of United States citizen-children. At this point, the future of the program is unknown. More importantly, its overall constitutionality is called into question.

Background

In June 2012, under the directive of President Obama, the Department of Homeland Security issued a memorandum in which immigration officials must refrain from deporting certain undocumented aliens. The process, known as deferred action (or DACA) would not – and has – granted any immigration status to those who apply. Rather, it simply prevents immigration officials from initiating removal proceedings against these people. In essence, these people are on a hiatus from any immigration action. So long as a qualified person submitted an application and was granted deferred action, he or she could apply for a work permit and remain in the United States. A qualified DACA recipient must meet the following:

  1. Came to the United States under the age of 16;
  2. Is currently under the age of 30;
  3. Continuously resided in the United States for at least 5 years prior to June 15, 2012 and currently present in the United States;
  4. Graduated high school, obtained a GED, is currently in school or has served honorably in the United States military; and
  5. Has not been convicted of a felony, significant misdemeanor, multiple misdemeanor offenses or otherwise be a threat to national security.

As of to date, hundreds of thousands of young men and women have applied for DACA, and most have been accepted. Accepted applicants can reapply every two years, so long as they stay out of serious trouble. This has allowed many young people to obtain lawful work status and live without a constant fear of deportation.

DACA Expansion

In February 2015, two expansions to the current DACA program were supposed to go into effect. The expansions were thereafter referred to as expanded DACA and DAPA. First, the expanded DACA bumped up the continuous residency date to January 1, 2010, authorized 3 year work permits and eliminated the 30 year old age cap. Second, the DAPA expansions allowed certain undocumented aliens to apply for a new program if they met the following:

  1. Be the parent of a US citizen or lawful permanent resident;
  2. Continuously resided in the United States since January 1, 2010 and physically present as of November 20, 2014;
  3. Have no lawful status;
  4. Are not an enforcement priority; and
  5. Present no other factors that, in the exercise of discretion, make the grant of deferred action inappropriate.

The expanded DACA/DAPA was supposed to address the inequities under immigration laws which discourage family unification. Just as it was unfair to punish young men and women who were brought to the United States as children when it was not their choice, so was it unfair to punish United States citizen-children by deporting their otherwise lawfully-acting undocumented parents.

At the same time, the expanded DACA/DAPA program was supposed to prioritize detaining and deporting the most serious criminal and immigration violators. This new enforcement policy was meant to save time and resources of CPB and ICE officials. Surprisingly, the expanded DACA/DAPA’s new enforcement priorities still remain in effect, despite the 5th Circuit’s ruling. Thus, the government’s new guidelines for detaining and deporting certain undocumented aliens will continue. This means that people otherwise eligible for the new programs who have been convicted of crimes such as DUI may be deported unless they qualify for a very limited form of immigration relief or discretion.

 

Federal Lawsuits

To date, 26 states have filed federal lawsuits to prevent the programs from going into effect. The states argued that the expanded programs were illegal and imposed a significant burden on them. One of the most pivoted states to fight the original and expanded program(s) has been Texas. Right before applications under the expansions were supposed to take place, an injunction was ordered by a federal judge in Texas. The government appealed the decision and as of May 26, 2015, the injunction has been upheld. Even conservative estimates show that up to 3-4 million undocumented aliens could have benefited from the expanded policies. Most of these people reside in the southern states, like Texas.

It is important to note that the current ruling does not affect the old DACA program. Those eligible under the old DACA program can still apply and receive deferred action. If you believe you qualify for the old DACA program, or have concerns regarding eligibility for the new programs – should the injunction be lifted – be sure to consult an attorney immediately before immigration officials contact you.

 

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