Hells Angels Sues Over Visa Denials for Foreign Members

 

via The Blog of the Legal Times

The Hells Angels Motorcycle Club has a history of clashing with law enforcement, but the group is hoping a Washingtonfederal judge will take its side in a new fight over federal immigration law.
In a lawsuit (PDF) filed last week, Hells Angels challenged policies that bar foreign members from traveling to the United States.

Hells Angels describes itself as a club for motorcycle enthusiasts, but it's classified as a criminal organization by the U.S. Department of State and U.S. Department of Homeland Security. In a lawsuit filed August 16 in U.S. District Court for the District of Columbia, Hells Angels claims that the "known criminal organization" designation isn't warranted and that federal officials have a blanket policy of denying visas to foreign members that conflicts with federal immigration laws.
Hells Angels, according to the complaint, has charters in 35 countries, including theUnited States, and clubs in at least four more countries are seeking to join.

Supreme Court Limits Arizona's Overreach on Immigration, Leaves Door Open to Future Challenges

Courtesy of the American Immigration Council

June 25, 2012

Washington D.C. - In a blow to the state anti-immigration movement, the Supreme Court ruled today that the authority to enforce immigration laws rests squarely with the federal government, limiting the role that states may play in crafting state-level answers to immigration enforcement. By a 5-3 margin, the Court struck down three of the four provisions of SB 1070 that were challenged by the Obama administration as pre-empted under federal law. While the Court agreed that Arizona’s attempt to limit immigration by creating new laws and new penalties to punish undocumented immigrants was pre-empted, it found that a provision requiring local police to investigate the legal status of suspected undocumented immigrants was not pre-empted on its face. The court read this provision very narrowly, however, leaving open the door to future lawsuits based on racial profiling and other legal violations.

“Today’s decision makes clear that the federal government—and only the federal government—has the power and authority to set the nation’s immigration policies,” said Benjamin Johnson, Executive Director of the American Immigration Council. “Despite its strongly worded rejection of Arizona's effort to set its own immigration policies, the Court adopted a wait-and-see approach to the controversial racial profiling section of the law. There is already ample evidence of discrimination and abuse in Arizona, and many communities in the state will bear the brunt of the Court's unwillingness to face that reality. It's time for Congress to heed the dire warnings contained in this opinion and recommit to fixing our broken immigration system.”

Link to American Immigration Council Press Release.

VIDEO: Sheriff Joe Arpaio talks SB 1070, DREAM Act

http://www.abc15.com/dpp/news/region_phoenix_metro/central_phoenix/video-sheriff-joe-arpaio-talks-sb-1070-dream-act

Obama Statement on SB 1070 Supreme Court decision

I am pleased that the Supreme Court has struck down key provisions of Arizona's immigration law. What this decision makes unmistakably clear is that Congress must act on comprehensive immigration reform. A patchwork of state laws is not a solution to our broken immigration system – it’s part of the problem.

At the same time, I remain concerned about the practical impact of the remaining provision of the Arizona law that requires local law enforcement officials to check the immigration status of anyone they even suspect to be here illegally. I agree with the Court that individuals cannot be detained solely to verify their immigration status. No American should ever live under a cloud of suspicion just because of what they look like. Going forward, we must ensure that Arizona law enforcement officials do not enforce this law in a manner that undermines the civil rights of Americans, as the Court’s decision recognizes. Furthermore, we will continue to enforce our immigration laws by focusing on our most important priorities like border security and criminals who endanger our communities, and not, for example, students who earn their education – which is why the Department of Homeland Security announced earlier this month that it will lift the shadow of deportation from young people who were brought to the United States as children through no fault of their own.

I will work with anyone in Congress who’s willing to make progress on comprehensive immigration reform that addresses our economic needs and security needs, and upholds our tradition as a nation of laws and a nation of immigrants. And in the meantime, we will continue to use every federal resource to protect the safety and civil rights of all Americans, and treat all our people with dignity and respect. We can solve these challenges not in spite of our most cherished values – but because of them. What makes us American is not a question of what we look like or what our names are. What makes us American is our shared belief in the enduring promise of this country – and our shared responsibility to leave it more generous and more hopeful than we found it.

Link to SB 1070 Supreme Court Decision

http://www.supremecourt.gov/opinions/11pdf/11-182b5e1.pdf [76 pages]

New USCIS system created to streamline the application process for immigration benefits: ELIS

What is USCIS ELIS?

USCIS ELIS is a user-friendly system created to streamline the application process for immigration benefits. It allows immigration benefit seekers and their legal representatives to create an account and file benefit requests online. USCIS ELIS provides more accurate and secure customer service. It also allows USCIS to process cases in a more efficient, consistent and secure environment.

Who will be able to use USCIS ELIS?

In this initial release, certain applicants can electronically file Form I-539, Application to Extend/Change Nonimmigrant Status. Over time, USCIS ELIS will include more benefit types and increased functions.

Link to USCIS webpage with more information. 

Q & A: B-2 visa holder risks of refusal and minimizing the same; F-1 visa as alternative option

Question:  My girlfriend is from Brazil and has a B-2 visa stamp.  Over the last year, she has spent more than half the time visiting me in the US.  The last time she left was about three months, and now she wants to return.  Does she run any risk of being denied entry, and how to minimize such risks?  Can she alternatively apply for an F-1 VISA to study English?

Answer:

There is always some risk of denial, as having a visa does not guarantee that CBP will grant entry. 

Further, the more time a foreign national spends in the US as a visitor, the more likely it is that CBP will question her continued eligibility for this visa classification. 

CBP has become increasingly aware of someone's prior exits/entries, with the help of technology. 

What CBP wants to know is if she truly a visitor, OR does she intend to stay permanently, or work in the United States without authorization to support herself.

Minimizing risk of refusal involves preparing to confirm temporary intent - in the event of extensive questioning.  Remember is possible she will have a very brief and easy interaction with CBP before being let in. 

Preparation should involve preparing to effectively discuss the purpose of her visit and temporary intent with CBP, and having paperwork ready to provide. 

CBP, considering her prior history of travel to the US, may begin a line of questioning that requires her to prove she will go back to Brazil after her visit is over, and can support herself during her stay without having to work illegally.

To confirm her temporary intent, we are talking ties to her home country.  Generally, the most persuasive evidence involves demonstrating permanent residence, a steady job at home, or enrollment in school; but it sounds like she has neither the job or is enrolled in school at the moment, and I am guessing might still live with her parents?

Certainly, if she is financially comfortable, she should bring paperwork to confirm the same. Possibly bank statements.  Other evidence might include a return ticket, itinerary documents to confirm what she will be doing in the US, where she intends to stay, etc.   

Usually for young single people, it comes to down credibility, ie, whether or not the CBP believes her, and so there is really no specific formula.    

A student visa might be a good alternative, because it provides her with a more concrete reason to come to the US. But note it would require another visa application at the Consulate, and the F-1 also requires her to demonstrate temporary intent.

A good way to start researching this process is to review the F-1 visa requirements posted online by the local US Embassy (see link below) AND finding an acceptable school, and then contacting them to discuss how they assist international students with getting an F-1 visa stamp.

Here is a link which might help: http://brazil.usembassy.gov/student.html

Please let me know if I may be of any further assistance.

Sincerely yours,

Michael

Q & A: H-1B Cap after being away from US for one year; H-1B three-year extensions for Company B, based on Company A approved I-140; Re-capturing previously established priority dates

Question:  I stayed in the US on H-1B for six years plus, based on having an approved I-140 petition, and then left the US for more than one year.  I now want to return to work for a different employer in H-1B status.  Am I subject to H-1B Quota Limitations?  Can I use my previously established Priority Date, even though I left the employer that sponsored my I-140? 
Answer: 

Q: Do I come under H1-B quota or can I apply for H1 without any quota restrictions?

MR:  As long as the I-140 was not withdrawn, and you are subject to per-country limitations (your priority date is not current) - your NEW employer (does not have to be the I-140 employer) may file a CAP-EXEMPT I-129 petition on your behalf, seeking CONSULAR APPROVAL for THREE-YEARS. 

Do you know if your I-140 was withdrawn after you left your prior employer?  Unfortunately, unless you are able to confirm this one way or another, the only way to find out is to actually file the petition with USCIS.  Note the USCIS online case status system is NOT updated for withdrawals. 

Q: Secondly, is there a way I could use my earlier priority date from labor filing? I am planning to file a EB2 perm labor with a new employer and port the earlier priority date.

MR: Yes, after the EB-2 labor certification (PERM) application is filed and certified by the US DOL, the new employer will file an new I-140 petition on your behalf, which should include a request to re-capture your earlier priority date.

Q: Is that priority date available for me as I have left that employer after my I-140 got approved. Please advise.  

MR: It should be available, even if you left, or even if that employer withdrew the I-140 after you left.  Note the difference for the 3-year H-1B extension, where withdrawal would likely result in denial. 

Withdrawal should NOT prevent re-capturing a previously established priority date.  That said, USCIS has been known to effectively say, "if the prior I-140 was withdrawn, there is no priority date to re-capture."  So if possible, and if you know your I-140 has been withdrawn, your immigration counsel should prepare an argument based on available guidance, that you are in fact eligible to re-capture despite the withdrawn I-140.

***

I wish you the best of luck.  Please let us know if we can be of any further assistance to you.

Sincerely yours,

Michael

DREAM ACT DEFERRED ACTION UPDATE; PLEASE BE CAREFUL OF POTENTIAL FRAUD BY SO-CALLED "NOTARIOS"

EN ESPANOL: http://www.dhs.gov/ynews/espanol/20120615-napolitano-anuncia-proceso-de-accion-diferida.shtm

Immigration lawyers around the United States welcomed the Administration's recent announcement that younger immigrants may be eligible for "Deferred Action" and work authorization. The policy will grant qualified immigrants the opportunity to live free from fear of deportation and allow them to work legally. This exciting new development brings hope to immigrants and their families. It is not currently a path to a Green Card or Citizenship, nor does it grant permanent legal status to anyone.  It will also not extend to family members – everyone must qualify on his or her own.

To qualify, an individual must:

• have arrived in the U.S. when they were under the age of sixteen;
• have continuously resided in the U.S. for at least five years prior to June 15, 2012 and have been present in the U.S. on June 15, 2012;
• currently be in school, have graduated from high school, have a GED, or be an honorably discharged veteran of the U.S. Coast Guard or the U.S. Armed Forces;
• not have been convicted of a felony offense, a "significant misdemeanor offense," three or more non-significant misdemeanors, or otherwise pose a threat to national security or public safety; and
• have been under thirty-one years old on June 15, 2012

The deferred action offer will be available to those in proceedings, those with final removal orders, as well as to those who apply affirmatively.

The Administration is not yet accepting applications for this action. Within sixty days - by the middle of August - the Administration expects to issue guidance and information about how eligible individuals can request deferred action and work authorization.

If you are NOT IN REMOVAL proceedings, DO NOT apply for deferred action at this time. Unfortunately, this policy may open the door for fraud and deception by so-called "Notarios." In the United States, notarios have no legal background and cannot legally practice law or represent you.

Further, anyone claiming they can submit an application or charging a fee for applying for deferred action should NOT be trusted until the process has been announced by the federal government. An immigrant's case can be delayed by notarios acting in bad faith, resulting in penalties and even deportation.

Do not endanger your chance to qualify for this action and make sure to contact a licensed attorney for more information on applying for deferred action. If you believe you are eligible for deferred action, you may contact Ryvin Wallace Group by calling our Washington DC office (703) 531-0790, or San Francisco CA office (415-765-0679).

After the jump, please read what we expect to happen in the coming weeks, more early analysis, and key Department of Homeland Security Memo and FAQs.

FY2012 Visa Bulletin Predictions: Forward movement through March, steady for summer then possible retrogression

On the 23 JAN 2012 the American Immigration Lawyers Association (AILA) posted notes from a discussion with Charlie Oppenheim of the Visa Office about visa demand in the employment preference categories, and predictions for the FY2012 Visa Bulletin.

Please find notes including FY 2012 predictions from that discussion following the jump.

SF immlawyr Q & A: I-539 application basics (being in status at the time of filing the change or extension of status)

Question:  Foreign national is in H-1B status with I-94 expiring in June 2012. Spouse has indepedant L-1A status.  I-129 H-1B extension pending with USCIS.  Foreign national is asking RWG - in case H-1B extension is rejected, can he change status to L-2 (dependent of L-1A) without having to leave the United States?

RWG Answer:  Possibly. 

When reviewing your I-539 change of status (from H-1B to L-2) USCIS will want to know if you were IN VALID H-1B STATUS at the time you filed the I-539 application.

In order to be in valid H-1B status, you must be working for the employer pursuant to an unexpired I-94.   If not, USCIS can take the position that at the time of filing the request to change status, you were not in status, and deny the request (to change status in the US). 

Basically, USCIS is saying to CHANGE status, you have to BE IN status first.  

In your scenario let's assume you are in the US, your I-94 expires, then your H-1B is rejected. You then file the I-539 (asking for a change from H-1B to L-2). This request is unlikely to be granted because you were not maintaining valid H-1B status when you filed the I-539. Note under this scenario you would be acruing unlawful presence.

Alternatively, let's assume your H-1B is rejected, and then you file the I-539 before your H-1B I-94 expires and while you are still working for the employer.  This should BE approved, since despite getting the extension rejected, you were maintaining valid status at the time of filing the I-539.

Note that premium processing might be useful if you want a fast answer on the H-1B extension; and you should - if you haven't already done so - inform yourself with respect to getting the L-2 by applying for a visa abroad and entering pursuant to that visa.  

I realize you prefer to avoid leaving the US, but it might become a reality; and just in case you don't already know, L-2 USCIS approval is NOT a pre-requisite to applying for an L-2 visa stamp at a US Consulate abroad.

Good luck and don't hesitate to contact us if you need assistance. 

In Honor of Dr. Martin Luther King Day

AIC (American Immigration Council) on How to Write a J-1 Training Program