Asylees or permanent residents who became residents through asylum may face obstacles if they return to their country.  If such a trip is necessary as for instance a parent is seriously ill or a family emergency occurs that requires the physical presence of the asylee, it is essential to apply before leaving the U.S. for Advance Parole.  To leave without first obtaining this document could lead the United States Citizenship and Immigration Service (USCIS) to believe that the asylee had abandoned asylum status.

It is vital to apply for a refugee travel document that will be valid for one year.  This allows the recipient to travel abroad and return without a visa.  It is wiser to apply for the Refugee Travel Document before leaving, but it is technically possible to obtain one abroad as well.   On returning to the U.S. the asylee will be inspected at the port of entry in the U.S.  The Immigration officer will enquire why the trip was necessary and the asylee should be prepared to show why the trip was made under compelling circumstances.

Asylees or permanent residents who obtained permanent residence through asylum should remember that the trip abroad may put them at risk.  The USCIS may deem that the original application for asylum was fraudulent or that the applicant’s alleged fear of persecution was a pretense to obtain permanent residence.  Thus it is important to show that in returning to his/her country the asylee did not seek any benefits or advantages in his country, namely to obtain any rights and privileges that the alien would normally be entitled to as a citizen or resident of that country.  It would be best in returning to keep a low profile, and make the trip as short as possible and stick to the main purpose for the trip, namely if the trip was to visit a seriously ill relative to make sure that the trip is chiefly for this.  Lastly avoid the appearance of any political activity that would invite the attention of the asylee’s own country’s authorities.

C VISAS, ALIENS IN TRANSIT

C Visa holders are allowed immediate and continuous transit through the U.S. and expeditious departure without unreasonable layovers. Crewmen joining a ship are included in this category and need a letter from the employer that it will reimburse the cost of removal, if necessary. To get the visa, possession of a ticket for going abroad is necessary together with proof of sufficient funds to maintain oneself while in the U.S. and proof of acceptance by a third country to enter that country. This C status normally bars a change of status or adjustment of status.

D VISAS, CREWMEN
D status is for a crewman serving in good faith in any capacity for the normal operation and service of a vessel, ship or boat. This category includes concessionaires such as beauticians and trainees. Entry to the U.S. for a maximum of 29 days is allowed without extension of stay, change of status or adjustment of status. A crewman who jumps ship may be taken by the Immigration Service and deported without a hearing but this must be done within 29 days. If the D visa holder is not removed within 29 days, then the D visa holder is entitled to a removal hearing. The C or D is ineligible to apply for Cancellation of Removal.

EXCEPTIONS ALLOWING A C OR D VISA HOLDER TO REMAIN:

HUMANITARIAN PAROLE
For medical reasons, or a significant emergency or a judicial proceeding, a parole may be granted for the duration of the emergency. This would appear to allow the C and D visa holder to remain until the emergency is over.

ASYLUM APPLICANTS
In the Eisenhower Administration in the 50′s, a Russian trawler came alongside a U.S. vessel to exchange some commodities on the high seas. A Russian crewman jumped off his ship onto the American vessel, asking for asylum. This created a furor on the Russian vessel, and the Captain of the Russian vessel demanded his crewman’s return. The Captain of the American ship did not know what to do, never having experienced this situation before and the U.S. Captain complied. Later the Russian sailor’s ship arrived in Russia, the sailor was arrested and put in the gulag archipelago. He was never heard from again. This incident created a huge uproar in the U.S. As a result, the immigration law was changed to allow asylum claimants if they are on U.S. soil or on a U.S. vessel to ask for asylum and the Immigration Service must consider the asylee’s request for asylum. The asylee may remain in the U.S. until the asylum claim is adjudicated and if refused, until the appeal is resolved. Thus even a C transit holder or a D crewman may make an asylum claim and may remain until such claim is adjudicated and appeals from any denials resolved.

EXTENDED VOLUNTARY DEPARTURE AND DEFERRED ENFORCED DEPARTURE

The Attorney General may bar the removal of persons who fear to return to their country because of political changes in their country or other substantive reasons. Chinese students in the U.S. after Tianamen Square were allowed to remain with deferred enforced departure. This could be extended to crewmen or transit visa holders as well.

If an asylum applicant is approved, he/she may apply for permanent residence after one year.

PAROLE ADMISSION AS A RESULT OF MARRIAGE TO A U.S. CITIZEN
An alien admitted under C or D status and married to a U.S. citizen, may apply for a Parole when or after an Application for Adjustment of Status is applied for. This paroled alien is eligible for adjustment of status because of having been inspected and admitted or paroled under the Immigration & Nationality Act. Admission pursuant to a parole has been held by the Federal Courts to be a lawful admission and thereby erases the bar applicable to C or D visa holders. Parole may be granted to alien spouses of U.S. citizens. If a person is stopped at the border and found inadmissible, there is no constitutional right to entry. However, the issuance of a Parole by the Immigration Service constitutes a lawful entry. This lawful admission enables the parole holder married to

A student who fled China as a member of Falcun Gong because he feared arrest as many of his classmates had been detained, arrived in the U.S. without a visa.  He applied more than one year after he arrived.  Although he submitted proof to the Judge at his removal hearing that he had attended protests in China and that he had exposed himself to imprisonment for having publicly held himself out as a member of this spiritual group, nevertheless he was denied asylum  because he had not filed within one year of arrival here.  According to a study that recently appeared in the Social Services Research Network, many qualified asylum applicants have been rejected solely because of this arbitrary time limitation.

A report promulgated  by Human Rights First last week has confirmed this.  Instead of concentrating on the merits of an asylum case, Judges in spite of evidence presented of life threatening or harsh persecution of the applicant, too frequently have focused on this arbitrary one year rule.  In fact this one year time-line was passed by Congress because it was considered an anti-fraud measure.

The United States is the most sympathetic country in the world to asylum seekers.   At the base of the Statue of Liberty are expressed the following from a poem by Emma Lazarus:

“Give me your tired, your poor, your huddled masses yearning to breathe free…..”

According to reliable sources over one/third of all asylum claims are filed afer the one year deadline.  According to these reliable sources over the past 10 years,  probably 21,000 refugees deported would have been granted asylum if they had filed within one year.   Many of these rejected applicants were unaware that the U.S. offered asylum until they realized this too late.   In China many of these rejected asylum seekers  who had  returned to China were immediately imprisoned.  There is also a great discrepancy for asylum seekers based on the country the asylees apply from.  For example, only 17% of Iraqis who filed late were rejected; about 75% of Guatemalans on the other hand who filed late were rejected.   In the case of Falcun Gong since it is not a well regulated group and has no systematized membership rolls, Judges are often perplexed as to whether to overlook the time limitation or not.  While it is important to eliminate fraud in applications, the arbitrary time limit is not likely to resolve the fraud issue.  This one year rule seems to be more likely to create injustice to many asylum seekers.

The Obama Administration has raised a spectre of fear among employers because of not following document requirements for hiring new employees. Enforcement agents of the Immigration Service have recently been scrutinizing business I-9 compliance throughout the country in record numbers. Restaurants especially have been targeted for heavy penalties and even criminal charges because of failing to properly record identity and working authorization of prospective employees.  What legal defenses are available to these fortuitous raids, and audits and arrests?

EMPLOYER, WHAT MUST THEY DO

A prospective employee must exhibit documents to show employment authorization and identity.  Within three days of employment, the employer is required to complete Form I-9listing these documents for each prospective employee.  The documents must be noted for I.D. numbers and expiration dates. Copies of the documents are not required to be kept, but the employer must retain the I-9s.   The employer is not liable for technical or procedural mistakes if made in good faith.

Documents proving employment and identity:

U.S. passport

Green Card

Foreign passport with P.R. stamp

Employment Authorization Card

Foreign passport with Form I-94 displaying an

unexpired right to work

For Employment Authorization Alone

Social Security Card

Proof abroad of U.S. citizenship by acknowledgment of

U.S. Department of State

Certificate of a U.S. birth certificate

Tribal document of native American

U.S. citizen I.D. Card

I.D. Card of Permanent Resident

Employment Authorization Card issued by Department

of Homeland Security

For Proof of Identity Alone

Driver’s license

Federal, State or local town or city I.D. card

School I.D. card with photo

Voter Registration Card

U.S. military card and dependents’ cards

Native American Tribunal Cards

For children under 18 for identity

School records

Hospital or doctor’s records

Day Care or nursery records

FALSE STATEMENTS ON FORM I-9

Misrepresentation by an employer on the I-9 form can be a criminal offense.  To prove having employed an undocumented alien, the government must prove actual knowledge or constructive knowledge that a person exercising reasonable care would be able to infer that an employee was not authorized to work.  The employer is not required, however, to guess.  For example if an employee is seeking a labor certification to obtain permanent residence, it does not mean that the employee doesn’t have work authorization. The employer cannot infer that the employee doesn’t have the right to work by an employee’s “foreign appearance or accent”.

An advice from the Social Security Administration that the employee’s Social Security number does not match the employee’s name is no proof because the Social Security Administration admits that their  records are unreliable.

INVESTIGATIONS

To conduct an investigation, the Immigration Customs Enforcement Agency

(ICE), must possess reliable information based on an already tested  reliable source of the employer’s violation.  A particular immigration officer may not justify an investigation by suspicions only.   ICE may conduct I-9 audits that are random selections but work sites may only be visited based on confidential sources and reliable witnesses..  Subpoenas may be issued by ICE prior to filing a complaint and an employer may challenge its reasonableness in Federal Court.  Without a warrant, ICE officers have no right to enter premises and speak to employees as the Fourth Amendment (Requirement of Reasonable Search and Seizure) protects the employer and employee.

HEARINGS

The employer has the right to an Administrative Hearing and the right to be represented by a lawyer.   At least 30 days notice is required before the hearing and it must take place at a practicable place for the employer.   A written record of the hearing must be taken and only relevant and reliable evidence may be adduced.

DEFENSES

Good faith and substantial compliance are defenses.  The criteria is reasonableness, namely that the documents presented to the employer by the employee reasonably appeared to be genuine.  If the employer substantially complied it is also a defense to paperwork violation.

CRIMINAL PENALTIES

Regular, repeated and intentional activities amounting to a pattern or practice may be used as a basis for a criminal violation.  Normally an employer may face a penalty of $3,000 and/or  six months in jail if convicted.   The government may settle for a fine in lieu of a criminal prosecution.

ADMINISTRATIVE AND JUDICIAL REVIEW

An employee receiving an adverse order may seek an appeal within 10 days.  A Petition for Review may also be filed in the Court of Appeals after the administrative agency’s decision.

Undocumented children have an unquestioned right to attend public school, full time.  In 1982, the U.S. Supreme Court affirmed a Constitutional right to a free public education in the district where a child  resides.  A school district may not inquire at the time of enrolling as to the student’s immigration status, and the school registrar may not inquire for the student’s social security number.   The school may not create the impression that immigration status information may be used to bar a student from enrolling in school.

In New York, specifically the Education Department has instructed all districts to desist from requesting resident alien cards when parents register their children in school such a request could chill illegal aliens from registering their children for fear of their exposure.

New York State’s education laws require a free public school education for any one residing in New York, ages 5 to 21, to study full time up to a high school diploma.  Proving age and residency may be shown in a way that does not expose immigration status such as a parent’s utility or TV bill, or a rental lease of the parent or guardian, to prove residency or a passport to prove the child’s age.

Although a school after enrollment may need to collect personal data of age and residency in N.Y.,  all schools have been instructed to avoid any inquiry about immigration status.   A birth certificate or Baptismal certificate besides a passport or showing  the date of birth is enough to satisfy a school’s need for proof of age.  Even if a child has entered as a non-immigrant, the school may not object to admission provided evidence of age and an residency in New York be shown.  If the child does not live with a parent, it is enough to show that the guardian with whom the child is living has full responsibility for the child’s support and custody.

EXECUTIVE ALTERNATIVES TO CONGRESSIONAL INACTION

Congress has failed to enact immigration reform since the Presidential Election, almost two years. The Director of Immigration has been directed to extend benefits and protections to undocumented immigrants under the powers of the Executive Branch without relying on Congress now. These powers may be used to aid family unity, to foster economic growth and to relieve immigrants from uncertainty and hardship in having to return home by granting them the right to Adjustment of Status.

TEMPORARY PROTECTED STATUS (TPS)

Salvadorans, Haitians, Hondurans and Nicaraguans who have been granted TPS now are ineligible to adjust to permanent residence. The new executive proposed Order would enable some 400,000 undocumented nationals of these countries to obtain permanent residence here without returning home.
PAROLE IN PLACE

The Immigration Service has legal authority to parole immigrants on a humanitarian basis. Any alien present in the U.S. even though not documented, may be deemed an applicant for admission. This privilege has been seldom granted before. The Immigration Service has decided to expand this humanitarian program by allowing “qualified applicants” to be excused from returning to their country. The President has this power under parole. The program is called “Parole in Place”, PIP. Last month PIP qualified U.S. military dependents to receive its benefit to preserve family unity and to avoid the need to depart for families of the military.

Another group the Immigration Service is considering for PIP are minors who entered without inspection. Under consideration are immigrants who have lived in the U.S. for many years, the elderly, and the caretakers of children who are disabled.

EXTREME HARDSHIP

Applicants who entered without documents or overstayed who have applied for a Waiver of Inadmissability have been treated harshly by Consulates. Even though such applicants have U.S. spouses, U.S. children and/or U.S. parents, the Consulates have been unsympathetic and stringent in their interpretation of extreme hardship for U.S. family members who suffer by their family member’s exclusion.

The Executive Branch now will lower this “hardship” bar to avoid long periods of separation from spouses, children and parents. By a lower standard of proof, many undocumented aliens would have less reason to fear and would come out of the closet to apply for immigration relief.
DEFERRAL ACTION

If the Immigration Service believes an undocumented alien’s removal is not in the public interest, the Service may grant indefinite deferred action. This would enable such immigrants to get work authorization, travel abroad, and live here. Relief may become available (ostensibly because Congress might change the law in future, even though no relief now exists.

Governor Paterson of New York who promised to grant Pardons to immigrants who had committed minor crimes or had occurred years ago, just fulfilled his promise, granting a Pardon to a Chinese man who as an adolescent had been involved in a series of muggings in Chinatown, NY. Immigration officers recently jailed him for mandatory deportation to China, where he had not lived since the age of 5. He had promised the Judge who sentenced him when he was a teenager to reform, and since he had bettered himself by becoming an information technology executive rising from his childhood condition of poverty, the Judge recommended him for a Pardon. The Governor granted it and as a result the young man just obtained his U.S. citizenship and will not be separated here from his home and his family.

The Governor created on May 5, 2010 a Special Immigrant Board of Pardons to review cases of immigrants threatened with deportation for minor or old crimes.

U.S. citizens and permanent residents, not to mention non-immigrants are often plagued by the U.S. Customs and Border Patrol at points of entry to the U.S. because of reports in the Border Patrol’s dossiers or because the entrant has a similar name to someone else who has such a record.  One egregious example was that of the late Senator Ted Kennedy, the brother of President John F. Kennedy, who was stopped at the point of entry because he had the same name as a Ted Kennedy who had an adverse report in the Border Patrol records.  It took a call at that time to President Bush to release Senator Kennedy for admission; namely that he was not the Ted Kennedy that had an adverse report in the Government’s records.

What can be done? An interrupted entrant who has endured this inconvenience has access to the Department of Homeland Security’s Traveler Redress Inquiry Program, DHS – TRIPS.   To clear your record, on the internet go to:  www.dhs.gov/files/programs/gc_1169676919316.shtm.  Often the DHS has old records of someone and these records are not pertinent to the entrant’s present lawful status.

Visa waivers are allowed to nationals of most West European countries, and Japan & Australia, permitting a visit to the U.S. for 90 days without extensions.  If a national of these countries overstays, he/she can be barred from returning to the U.S.   The New York Circuit Court of Appeals (2^nd Circuit) is one of the Circuits among 5 others of the12 Circuit Courts in the U.S. that allows visa waiver aliens to adjust their status in the U.S., if they marry an American even if they have overstayed their visa waiver period.  However, in the 6 other Circuits that include the 3^rd Circuit consisting of New Jersey, Pennsylvania, Delaware and the Virgin Islands, another rule applies:  a foreign spouse of a U.S. citizen who has a visa waiver and has overstayed has no defense against deportation if an immigration officer decides to expel the foreign spouse.

Recently a German-British dual national who came with a Visa Waiver was picked up by Immigration officers at his home and was taken away in handcuffs.  He learned he was deportable without having to have a hearing because he inadvertently overstayed his visa because he had filed his application for adjustment of status without enclosing his wife’s alien relative petition, his wife being the American citizen petitioner. An Immigration Judge could not help him because the Third Circuit Court had just held that even though he had entered legally, since he had exceeded his 90 day stay allowance, he was summarily deportable.   An article about the misfortunes of this couple was published in The New York Times indicating the harshness of this rule that had created a furor.  As a result, although the Immigration officers had followed the letter of the law according to the Third Circuit, the Immigration office released the alien into the arms of his wife, and he was able to correct the mistake in his application.

However, this case points out that 6 Circuits in the country including New York allow visa waiver holders to obtain permanent residence through their U.S. spouses even if they overstay, whereas the other 6 Circuits including New Jersey, Pennsylvania, Delaware, and the Virgin Islands, hold they may not.

By creating a new commercial enterprise in the U.S., an investor may obtain conditional residence.  The venture must fill no fewer than 10 full time newly created positions for U.S. citizens, permanent residents, or other persons with employment authorization.  The investor needs to demonstrate management skills by hands-on oversight and active engagement in every aspect of the new business.  At least $1,000,000 has to be invested unless the venture will be in a targeted employment area (where there is high unemployment) and then the investment need only be $500,000.

The investment must be at risk for profit and be a new enterprise.   If the investment is in an already existing business, then the company will have to show it has expanded the company bought into by the investor’s input, namely, by showing that the existing company’s net worth has increased by 40% as a result of the new investment or that the number of employee positions has increased by 40% as a result of the new investment.

The investment may be in cash, equipment, inventory, tangible property or securities.  A loan to the company is not satisfactory.  The investment needs to be at risk, and a loan can be made to be redeemable whenever the lender wishes.

The value of the equipment, inventory, etc. must be determined by market value.   The foreign investor may not spread out the investment in several enterprises; it must all be put into one business.  Lastly, the investor may be asked to prove the legitimate source of the money invested.

EMPLOYMENT FOR 10 FULL TIME POSITIONS:

a) the positions created must be full time.  The company may change individual employees in these various new positions as needed as long as the newly created  positions themselves remain at least at ten;

b) the workers filling these positions may not include the investor’s family members or non-authorized to work persons;

c) if the business invested in has had net losses for one or two years exceeding 20% of its net worth, then the business will be excused from the 10 new employee requirement; it would then be enough to maintain from the existing staff at least 10 full time jobs.

Within 90 days of the 2nd anniversary, the investor may petition to remove the condition and make the residence permanent.

An investor pilot program has been created that allows investors through Regional Centers to be relieved of the 10 position requirement by the investor’s promotion of economic growth in the region through exports or increasing regional productivity and by directly or indirectly creating new jobs or increasing local capital investment as approved by the Regional Centers. If the new business of the investor has had a positive economic impact as confirmed by the Regional Centers and has created jobs beyond the investor’s business itself, then the investor may be excused by the Regional Center of providing 10 new employee positions through the investor’s new business.