SwagatUSA Blog

Obama is planning to use executive powers to stop deportations. How can you prepare?

It’s all over the news if you have been paying attention, and has caused a significant amount of debate regarding whether or not President Obama can use Executive Powers to make changes to Deportation enforcements.  In case you haven’t heard, take a look here:  “Obama is Preparing to Make One of the Boldest Moves of his Presidency – And It Could Stretch the Scope of Executive Power.” This is something that everyone seems to have a say in.  However, few are talking about what the people who are likely to benefit from this kind of a shift in policy could do to prepare for it.

Now let me be clear that no law has changed. There has not been any change in the law yet.  We are not sure when the law will change. We don’t know if the law will change.  This is not immigration reform.  This is also not amnesty.  Every time a news about immigration breaks out, I always get people calling to ask when the “new law” will be in effect.  Here is the kicker: this is not even a new law that is being proposed.  It is just a new policy on ENFORCEMENT.  Think, for example, of the DACA program.  The DACA program was introduced by President Obama after numerous failed attempts at the Dream Act.  Now, the parents of these so-called DREAMers are the ones who are likely to be assisted.

If the speculation turns out to be accurate, the President may be introducing a policy similar to the DACA program, which would give some measure of temporary relief to those who are undocumented, provided they meet a specific set of criteria.  While we do not yet know what this criteria is, or is likely to be, we can make some educated guesses based on the DACA program as to how to be prepared for this policy when it comes out.  Below are my educated guesses. Again, it is worth repeating, that NO NEW LAW OR POLICY has yet been introduced.  Do not go and make yourself prey to scammers who claim otherwise.

1) Criminal history will need to be examined.  If you have any criminal history, including arrests of any kinds, major tickets, or have had to go to the criminal court for any reason, even if you won the case, it will probably be worthwhile to go to the county courthouse and get a CERTIFIED COURT DISPOSITION. While it is tempting to expunge whenever possible, definitely get a certified court disposition FIRST.

2) Your Tax history is very likely to be examined as well.  USCIS is fixated on tax returns.  They like to see that everyone, legal or not, is properly filing tax returns.  If you haven’t started yet, start from 2014. But it’ll be even smarter of you if you would go and file a few years of tax returns from the past.  Yes, this is possible, but you may be required to pay back taxes. Then again, if you have already paid into the system somehow or if your employer gave you a check after cutting a portion for taxes, you may be entitled to a return.

3) Get your entry documents in order, if any.  Unless you crossed EWI “Entry Without Inspection,” or in other words, you entered without a visa, and without a passport, and so-to-speak “jumped the border” you will need to find those old passports, that old I-94 card if you have one, and any visa.

4) You will need dates of your entries and exits to and from the United States

5) You will need all the addresses for every place you have lived and worked in the United States, and the dates (at least month & year).

If you have these 5, you will be well ahead of the rest for whenever a change in the law or policy takes place!

Same-Sex Marriage-Based Green Card Applications

Since the fall of DOMA, the immigration possibilities of same-sex couples where one happens to be of a different nationality have greatly increased.  We at SwagatUSA are thrilled to be able to assist a number of same-sex couples in their life goals by resolving their immigration issues!  However, a few challenges still remain.  Here I will write specifically about marriage-based green card applications, where one of the spouses is a US citizen and another is a foreign-national.

Generally speaking, a same-sex marriage, when it is legally recognized in the state in which it was celebrated/registered is supposed to be treated no differently from any opposite-sex marriage. This means that same-sex couples can now file for an adjustment of status (I-485) application, can petition spouses from various countries, and can have same-sex spouses be their dependents on visa applications.  However, because same-sex marriage is not equally recognized in every state or every part of the world, a few challenges do remain.  I will try to highlight some of them.

Same sex couples must be certain that your marriage is valid where celebrated. This means that make sure that you fulfill any residency requirements for that state, etc.  Also, forms of commitments other than an actual full and complete marriage are not recognized at this time for immigration purposes.

Keep in mind too that your history, including relationship history, marital history and immigration history will be examined as a part of any marriage-based application.  We occasionally get couples who have previously been married to an opposite sex partner. While it may be before they “came out,” any such changes that could raise questions about the good faith of the current marriage should be examined and explained as a part of case preparation.  A good lawyer should be able to work with you to fully explain these transitions to USCIS.

Not every family is equally accepting of same-sex marriage.  Because family affidavits are occasionally used to support a marriage-based application, when they are not available, alternative methods of supporting the relationship story should be used.  Again, a good immigration attorney can help you figure out which methods are best suited in your specific situation.

Depending on whether the foreign-national spouse is interviewing in the US, or at an overseas consulate, an interview with both spouses may be required.  If required, it may be a good idea to attend this interview accompanied by an immigration attorney.  The main reason for this is that although the gender of the spouses should not make any difference in the adjudication of the case, these are still relatively new cases, and a little extra precaution is only likely to help the couple.  If this is not possible, a thorough interview preparation is highly recommended.

This goes without saying, but anyone applying through a marriage-based application must make sure that their marriage and relationship are genuine and properly supported with evidence.

For general guidance on adjustment of status applications, visit: http://www.swagatusa.com/marriage-based-adjustment-of-status-i-485/

To contact us for free consultation regarding a same-sex marriage-based application, call 312-854-7065 or email us at dhenu@swagatusa.com.



Crimes Involving Moral Turpitude, Shoplifting, Retail Theft, and Immigration

As promised in my previous blog post, I wanted to offer a solution for some people accused of shoplifting or other similar crimes involving moral turpitude. If you haven’t seen that post, you can see it here.

So, if it is only your first time that you have been accused of this crime. Maybe you have been told that you are not considered “guilty” by the criminal court, but you have had to take some classes, etc. or pay some fine, or have some kind of a penalty for the crime, for immigration purposes, that is equivalent to guilt.

Luckily, it is pretty well-established in the law that 1 single offense of a crime involving moral turpitude that is a PETTY offense (the definition of this is very specific, so definitely contact a lawyer), can be considered as an exception to the ground of inadmissibility.

This means that if you only have one shoplifting charge for a small amount, and it is considered a petty offense, then an exception apply so you are not considered ineligible for benefits such as applying for a green card, naturalization, change of status, extension of status, any kind of visa, or during any entry to the US.   Generally, it is my recommendation that clients contact an attorney to get a written memo attesting to how their offense qualifies for this petty offense exemption and why it would not render them inadmissible to the United States.

If you or anyone you know has been in this position, feel free to schedule a free consultation with us.  Let us know your situation and we will be happy to evaluate if you will be helped by this memo.

Holiday Shopping, Shoplifting, & Immigration Law. What Immigrants Need to Know.

The Holidays are coming. We can feel it everywhere. All the stores are stocking up, sales are buzzing everywhere, holiday lights and music fill the air. What does this all have to do with immigration? Well, I’ll get to that.

Shoplifting and that pesky petty theft (retail theft) presents a special problem for immigrants. Now, I am not suggesting that immigrants are more likely to be shoplifters because I have no idea about the data around that. But I do know a little bit about culture shock. One of the differences that was immediately noticeable upon coming to the US was the sheer size of some of the large department stores. Articles on display and within reach of the consumer. Of course, they are monitored by employees and security cameras, but they were much more easily handled by the average shopper than anywhere in India at that time, though this is changing and has changed to a degree with the recent infiltration of large malls in the major Indian cities. Regardless of how temptingly easy it may look to be able to slip a couple of expensive items in your purse or jacket, don’t do it. Aside from the moral reason, here are the reasons why.

First, if you have ever been in the unfortunate situation of learning firsthand about some of the criminal system in the US, put aside your knowledge for a while. Immigration law treats crimes differently. You see, immigration law is federal, while much of the criminal laws are state laws. So, unless you were charged with a federal crime, one of the issues presented is converting the criminal statute into immigration terms. While many states offer various degrees of guilt/innocence and various options for punishments, the first thing to know about crimes in immigration law, is you are either innocent or not innocent. There are no in-betweens. So, unless you are shown to be innocent, even if you were never convicted but you only admitted to having “done it” you can expect to be treated as if you were convicted. Yes, even a verbal admission is treated as proof of guilt.

Furthermore, there are different types of crimes–Regular crimes, Crimes Involving Moral Turpitude (CIMT) and Aggravated Felonies, for example. Shoplifting falls under the CIMT category. CIMTs are crimes that tend to have a component of lying, deceit, stealing, or fraud generally-speaking. (This is very simplistic, but I am trying to make this easily understandable.) No matter how small the crime or offense, if it involves a component of the above, it is a CIMT for immigration purposes. Two or more CIMTs make someone “inadmissible” to the United States. If you are on a visa and want to extend your stay, change your status, apply for a green card, apply for citizenship, or if you seek entry into the United States, you are seeking “admission,” and with two or more CIMTs, you won’t be permitted admission.

You are beginning to see the problem, right? I hope. Two or more admissions or convictions of shoplifting (retail theft or petty theft) can make you inadmissible. What if you only have one? Well, then, depending on the nature of the crime and the severity of the punishment, you may qualify for a petty crime exception, which would make it so the crime cannot be a cause of inadmissibility on its own.

In short, shoplifting, or another CIMT, regardless of how “minor” it is, can be a problem. If you have one, I hope you learn your lesson and never ever ever get another. Practically speaking, this means being extra-vigilant while shopping. Check your children before departing the stores, check your baskets and shopping carts carefully to make sure nothing got away, and resist that temptation at all costs.

What to do if you have recently been caught shoplifting or charged with a petty theft? I will write more in the next article…so stay tuned and stay safe and happy shopping!

Lawyer Dhenu Savla | Abogado Inmigracion | H1-B Attorney

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