Archive for September, 2010

The speculative bubble in immigration practice. Part II.

Sunday, September 26th, 2010

Last week I discussed the irrational exuberance that caused attorneys to file adjustment of status applications for their clients who were deported and then came back even after it had become clear that USCIS was going to find the client ineligible for adjustment of status. This week I will discuss a similar irrational exuberance involving visa-waiver-entrant adjustments.

The visa waiver program, found at INA § 217, allows citizens of certain countries to come to the United States without a visa for a ninety day visit. There are no extensions or changes of status allowed. More importantly, if an alien overstays the 90 days, he can be removed without any administrative appeal, that is, without seeing an immigration judge. However, in discussing eligibility for adjustment of status, becoming a permanent resident while in the United States, the Immigration and Nationality Act allows for entrants under the visa waiver program to adjust status to permanent residence if they are adjusting as immediate relatives, that is as the spouse, parent, or child (under age 21) of a United States citizen. INA § 245(c)(4). For the longest time. USCIS and its predecessor, INS, looked at the exception for adjustment of status as the controlling statute and ignored the prohibition to adjustment of status at INA § 217 and the right to remove an overstay without taking the person to immigration court. In other words, it was safe to adjust status if one entered under the Visa Waiver Program if adjusting as an immediate relative. (more…)

What if she was a foreigner?

Wednesday, September 22nd, 2010

Paris Hilton

Paris Hilton, great granddaughter of Conrad Hilton, and famous person in her own right, pled guilty to misdemeanor cocaine possession in Las Vegas on September 17, 2010. She was sentenced to one year probation, 200 hours community service, $2,000 fine and ordered to complete a drug abuse program. Possessing drugs is a deportable offense under INA § 237(a)(2)(B)(i). It is waivable for a permanent resident if the permanent resident has resided in the United States for the past seven years after a lawful admission and has been a permanent resident for five years. To obtain the waiver, she would have to balance the positive equities in her life versus her criminal history and other past conduct. DUI’s, and prior arrests for drugs in South Africa and Corsica would not be helpful. Long residence, family ties, property and business interests, and contributions to the community, would be helpful equities. So would remorse and rehabilitation. It is also a mandatory detention crime, meaning that she would have to stay detained while asking for her waiver, which would last more than six months based on how things work in San Diego, where I practice. (more…)

EOIR Backs off a Bad Idea

Tuesday, September 21st, 2010

On August 30, 2010, the Executive Office for Immigration Review, the body that contains the immigration courts and Board of Immigration Appeals announced that it was changing the way people can access court information through their telephone number, 1-800-898-7180. The way it is done is by calling and entering an aliens identification number, their “Alien Number,: also called their “A-number.” Then you could hear about court dates for pending cases and outcomes in concluded cases. The implementation of the system years ago made things much simpler for immigration lawyers. People who come in to my office with an A-number often do not know about their court cases – quite often they do not even know they have or had one. Calling the number allows me to learn about the status of a person’s case and the magnitude of his or her problems. Just today someone came to my office with only an A-number and I used the system to find out about the person’s immigration situation. (more…)

The speculative bubble in immigration practice. Part I.

Sunday, September 19th, 2010

Coincident with the speculative bubbles in the general economy in the 2000’s was a speculative bubble in immigration practice. Some of the overlap is easy to explain – the same super-charged, exuberance-reinforcing energy that made the economy grow and grow – for example. easy money for homeowners caused more people to enter the housing market that caused prices to rise that caused people to have more home equity and then more easy money to er-enter the market for more or bigger purchases – caused a super-charging that made for more investment in technology businesses that required more workers that led to the need for more foreign workers and a boom for business immigration lawyers. The bursting of the bubbles in the housing market and the economy in general unremarkably led to a burst of the bubble for business immigration lawyers.

Case in point – the H-1B visa, the primary too for importing skilled labor. There are, generally speaking, 65,000 such visas available each year. They become available on October 1 of each year, the federal fiscal year. Filing for them is permitted six months before the start of the new fiscal year, or on April 1. As of this week, 27,500, or 42 percent are left for fiscal year 2010. Compare this to 2007, when by April 3, six months before the start date of the 2008 fiscal year, 123,480 H-1B petitions were filed – 190 percent of the quota was filed for by two days after the filing period opened. Filing was then called off and a lottery had to be held to choose which of this 123,480 applicants could get the 65,000 visas.

This bubble was not caused by immigration lawyers and filing for H-1B visas did not jeopardize anyone’s presence in the United States. In fact, that so many filed so early, in the first two days after the filing window opened, was indicative that immigration lawyers were doing the best for their clients in crazy times. However, not all filing bubbles were as harmless. Immigration lawyers, their exuberance to file cases trumping their concern for their clients, filed cases in other contexts that are now coming back to bite. I will look at two such areas, one today, and one next time. Today I’ll look at the filing of adjustment of status applications for clients who were previously deported. Next time I’ll look at the filing of adjustment of status applications for clients who entered under the visa waiver program. (more…)