President Obama has always made it known that he favors the enactment of some form of comprehensive immigration reform to allow for a “path to citizenship” for at least some of the approximately 12 million living in the U.S. without legal immigration status. During his term, it’s been a Republican Congress that’s been the main obstacle to getting any type of immigration reform initiative passed, whether it be the DREAM Act, or more comprehensive reform proposals. If you are wondering how the Republican candidates for President would approach the issue – below are direct quotes attributed to each of them, along with my own peanut gallery assessment:

Mitt Romney
“My view is, people who have come here illegally, we welcome you to apply but you must get at the back of the line, because there are millions of people who are in line right now that want to come here legally. I want those to come here legally. Those that are here illegally have to get in line with everybody else.” [Republican Debate, December 15, 2011]

RH – What line are you talking about Mr. Romney? The vast majority of undocumented individuals currently have no avenue toward legal status in the first place, and thus have no line to get into! This sounds good, but has no basis in reality. Maybe, like most politicians, he is just saying what he thinks the public wants to hear just to get elected, and once elected will do whatever suits his political agenda and survival. After Iowa, it looks like BS and nice sound bytes take you places though. Slick guys finish first?

“If I were elected and Congress were to pass the DREAM Act, would I veto it? The answer is yes.” [Washington Post, December 31, 2011]

RH – Same assessment as above. Sounds tough, and that’s what Romney thinks he has to sound like on immigration issues. Any reasoning he would cite, like in the first quote, would likely have no basis in reality. Nevertheless, slick guys appear to finish first.

“As President, [I] will also work to establish a policy that staples a green card to the diploma of every eligible student visa holder who graduates from one of our universities with an advanced degree in math, science, or engineering. As President, a first step that [I] will take is to raise the ceiling on the number of visas issued to holders of advanced degrees in Math, Science, and engineering who have job offers in those fields from US companies.” [Believe in America, September 6, 2011]

RH – Great idea, and sounds great.

Newt Gingrich
“I do not believe that the American people are going to tolerate going after somebody who has been here 25 years, who has a family, has children and grandchildren, belongs to a local church. What I proposed is very standard things. Control the border by January 1, 2014. Make English the official language of government. Go to a much better visa program that’s much…that makes it more desirable to visit the U.S. legally. Go to a better deportation program to move people out who shouldn’t be here.” [CBS News, December 18, 2011]

RH – Congratulations Newt. You may win the award for the most honest of this bunch. Your answer is practical and real. Be careful though, honesty may not get you too far in this race. The tougher, “law and order” talk seems to be what most of the other politicians think will win the day.

“Let me start and just say I think that we ought to have an H-1 visa that goes with every graduate degree in math, science and engineering so that people stay here.” [Republican Debate, November 22, 2011]

RH- Great idea! Sounds great.

Ron Paul
“Somebody who’s been here and it’s their country I think there should be a program to bring them into the fold…but I want it to be done systematically. I think we need more efficiency at our borders, and allow the people to come in, especially for people who can take care of themselves. But you ask about what we do with 11 million and I would say you have to work out a program of assimilation, but you can’t just say borders don’t count and people should be rewarded for breaking the law.” [Univision, October 2, 2011]

RH- same commentary as for Newt. Its honest, real talk. Not as sexy as law and order though.

“End Birthright Citizenship – As long as illegal immigrants know their children born here will be granted U.S. citizenship, we’ll never be able to control our immigration problem.” [Ron Paul 2012]

RH- whether you agree with his stance or not, he is honest and truly believes what he is saying, particularly regarding the attractiveness of US citizenship for all children born here. His blunt commentaries appear to be getting him places.

Voted “yes” on H.R. 3736, a bill that increased the number of highly skilled workers from 65,000 to 115,000 by the year 2000. [U.S. House of Representatives, September 24, 1998]

RH- consistent with earlier commentary, he is honest and realistic on this issue as well. What planet he lives on other issues, such as foreign policy, is a whole other question.

Rick Perry
“Amnesty is not on the table period. There will be no amnesty in the United States. We’re a country of law and the idea that we’re going to tell people that somehow or another that that’s all forgiven is not going to happen.” [ABC News, November 29, 2011]

“But I do think that there is a way. That after we secure that border that you can have a process in place for individual who are law- abiding citizens who have done only one thing, as Newt says, 25 years ago or whatever that period of time was, that you can put something in place that basically continues to keep those families together.” [Republican Debate, November 22, 2011]

RH – Amnesty…a word loaded with toxicity in the immigration debate. However Rick, there is already a de facto amnesty in place now, as the US government is looking the other way for the millions in the U.S. without status. True to his inner character, Rick comes off like he wants it both ways and talks from both sides. He is not brave like Newt and some of the others – who says it like it is. Too slick for his own good it seems.

“But if you say that we should not educate children who have come into our state for no other reason than they’ve been brought there by no fault of their own, I don’t think you have a heart. We need to be educating these children, because they will become a drag on our society. I think that’s what Texans wanted to do.” [Republican Debate, September 22, 2011]

RH – sounds a little braver, but he tends toward back pedaling whenever one of his controversial positions, such as this, are taken issue with. After Iowa, he seems to be on his way out anyway.

“We need highly technical, trained engineers and biomedical scientists. And a lot of times, you can’t get those people because they can’t get an H-1B visa, for instance.” [CNBC, September 29, 2011]

RH- True!

Rick Santorum
“The idea people who are here 20 or 25 years and came here illegally only committed one illegal act, well, you can’t be here and commit one illegal act because almost everything you’re doing while you’re here is doing things against the law…So we say, we should let that happen. We shouldn’t break up families. We should let them all come…This is false compassion.” [CNN, December 6, 2011]

RH – Honest and practical. No waffling, so it seems.

“First off, I’m actually for a system that allows for people to come here, if they come here on a student visa or they come here on a visa that — you know, where they’re getting some sort of higher education or they’re learning some great skills that are good and necessary for the country — my feeling is, you know, if they graduate and do well, we should — you know, we should have — actually give folks the opportunity to have a green card and to stay here and work.” [Fox News, November 29, 2011]

RH – Sounds good. Is good.

Michele Bachmann
“Well, I don’t agree that you would make 11 million workers legal, because that, in effect, is amnesty. And I also don’t agree that you would give the DREAM Act on a federal level.” [Republican Debate, November 22, 2011]

RH – She sure is honest, and she does not waffle. Is she crazy? Is there any practicality to her approach? Those are separate questions. My take on the practicality of deporting 11 million people – including placing them in removal proceedings and providing “due process”? – HA, Good luck federal government! Anyway, after IOWA, all of her talk, and my commentary, is perhaps moot.

“We think about the United States and what’s in the best interests of the United States. If we can utilize these workers, like Steve jobs wanted to, then we need to offer those visas. That will help the United States. But I don’t agree that we should make 11 million workers who are here illegally legal.” [Republican Debate, November 22, 2011]

RH – Practical and smart on the visas for professionals and skilled workers. Not so much on the other issue.

Jon Huntsman
“I think you have to take a very practical approach to having them [undocumented immigrants] wait in line. There have to be certain requirements. Language requirements. English as an official language for example. Paying back taxes, if that is applicable. There needs to be some steps along the way that would suggest that they have paid whatever price and penalty in order to come out of the shadows and to gain citizenship in this country. You have to create a system whereby you can move towards citizenship. You can’t wish people away. You can’t just use rhetoric that says we’ll ship people back.” [Think Progress, September 19, 2011]

RH – Honest and practical, except for that “line” comment.

“I believe immigration is a human as well as an economic issue, and that children of illegal immigrants shouldn’t be punished for the sins of their parents.” [CBS News, September 23, 2011]

RH – Honest and practical.

“We can’t process people. The H1B visa process is broken. We need to bring in brain power to this country to shore up our economic might. We need to bring in foreign capital to raise real estate prices as well.” [Republican Debate, September 12, 2011]

RH – Smart, practical and honest!

PUBLISHED January 4, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois

Watching presidential debates is not one of my favorite things to do, mainly because I have a hard time believing a single word coming out of any of the participants’ mouths.  The posturing is so obvious, with each candidate trying their hardest to get their sound bites in, and say the things their “people” tell them they need to say.  So it was by accident – while looking for enjoyable garbage to watch on the Dumb Box (my mother’s affectionate term for the television), that I happened upon the debate involving Republican candidates for President last week.  At the moment I tuned in, the one topic I have more than a little familiarity with was being argued, U.S. immigration policy.  So I gave it a listen, curious to hear if any honest conversation was going on, or if it was going to be the usual festival of scare tactics, half-truths and snake oil pitches all too common in political arena immigration discussions.

What I heard: mainly the familiar cries for anything but the incumbent’s policies.  “We have to enforce the border”.  “We can’t have an amnesty….or have any talk about a path to citizenship, without first securing our borders…” (with hand stomping on podium……and praying for applause).  But, the question these politicians have a hard time answering, and do not want to answer is “what does securing the border mean?”  By repeating the “secure the border” cry in trancelike fashion, the politician seeks to avoid the next, elephant in the middle of the room, question of what do we do with the 12 million undocumented who are already here.  Of course these candidates will also do their best to avoid talking about how Barack Obama has facilitated record numbers of deportations during his term and has successfully amped up our border strength with advanced technologies and increased manpower.

However, one candidate, Newt Gingrich, had the nerve to talk truth about immigration, and touch on the 12 million dollar question – suggesting a “humane” immigration policy and confessing he would not remove all illegal immigrants that are currently in the country:

“I do not believe that the people of the United States are going to take people who have been here a quarter century, who have children and grandchildren, who are members of the community, who may have done something 25 years ago, separate them from their families, and expel them,”

Now that took nerve.  Here in the midst of a gathering of the Republican’s best and brightest, Newt Gingrich took a risk and said what every other candidate deep down truly believes.  Of course our society will not be removing all of our undocumented.  That fact alone is evident in the practice of the various administrations in office over the past generation, no matter the party affiliation.  Newt’s statement nevertheless drew the predictable chorus of accusations that he is “soft” on immigration, and that irresponsible statements like his show he will be inclined toward creating policy that encourages more illegal immigration since the law breakers of the past will now be rewarded with green cards.

Let’s forget about the fact that for more than the past generation our society has implemented a de facto amnesty anyway, where we look the other way when it comes to our undocumented  immigrants who are not committing crimes, but instead are committed to cleaning up our homes, taking care of our elderly or installing our new dry wall.  No one at the Republican debate acknowledged that fact, and that our de facto amnesty is already a significant “magnet” to encourage people to come here based on the predominant motivation at play – that life in the U.S. without status is better than the futureless, hopeless life that awaits back in an opportunity-less and/or corrupt homeland.

Maybe Gingrich is already looking ahead and plotting a strategy for the November, 2012 general election.  Or maybe he was just having a moment of unavoidable arrogant clarity.  Whatever the case, it seems that notwithstanding the immediate schoolyard name-calling his immigration remarks prompted from his opponents, Gingrich stated an indisputable reality:   the undocumented population with deep roots in the U.S. and who are otherwise law-abiding, are not going home voluntarily, and further, face almost no chance of ever being deported.  Mitt knows it.  Rick knows it.  Herman knows it.  And even Michelle knows it.

PUBLISHED November 28, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois

This past week the U.S. Department of Homeland Security/Citizenship and Immigration Services (CIS) announced the merger of the Employment Authorization Document (EAD) and Advance Parole Travel Document (AP) for certain applicants for adjustment of status applicants. Previously, CIS issued separate documents authorizing employment and international travel for eligible applicants for adjustment of status, and their issuance and renewal required two separate applications. Now, however, a single document will be issued to eligible, pending adjustment of status applicants to prove their ability to work lawfully in the U.S. as well as facilitate a return trip back into the U.S. following international travel. The document will be issued for a period of 1 or 2 years, depending on the how long the applicant’s adjustment of status application is expected to remain pending.

As a reminder, AP’s and EAD’s are available to foreign nationals undergoing permanent residence processing in the U.S. by way of the filing of Form I-485. To be eligible to file Form I-485, an applicant must be the beneficiary of a qualifying family-based, or employment-based visa petition, and where a visa is immediately available in the applicant’s particular visa category. However, applicants who are out of status for 180 days or more, at the time of the filing of their I-485 Adjustment of Status application are strongly advised NOT to travel internationally while awaiting their permanent residence processing – and even if they are issued an advance parole. For these types of out of status applicants, a 3 or 10 year bar to readmission will kick in upon their departure, leading to the likely denial of their I-485 application and non-issuance of their green card.

Lastly, as long as they are valid, EAD’s and AP’s that are not in a single document will continue to be honored for purposes of proving employment authorization or to facilitate reentry following international travel. Further, separate EAD’s and AP’s will continue to be issued to applicants under certain circumstances.

PUBLISHED February 15, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois

The question has been lingering for years:  what is our nation going to do about the 15 million or so undocumented living in the U.S.? Commence removal proceedings against them? Grant legal status to most or all of them who are otherwise law abiding? Do nothing and essentially allow for a continued, de facto amnesty?    

In part to address the question of undocumented in their state, and in part to cry out for help regarding the security of their state and border with Mexico, the State of Arizona has taken the extraordinary and unconstitutional step of criminalizing violations of U.S. immigration law.  That means state law enforcement agencies in Arizona now have the authority to arrest and criminally prosecute immigration law violators present in their state, with violators turned over to federal authorities for the initiation of removal proceedings after being served a state sentence. Violators of this law however, only become subject to arrest and prosecution if the law enforcement officer has a “reasonable suspicion” that the suspect is living in the U.S. in violation of immigration law.     

Amidst huge political pressure, Arizona Governor Jan Brewer last week signed this state legislative proposal into law, although it is not set to take effect for several months. Regardless of the state’s plan though, the actual implementation of the law is unlikely to ever happen. Numerous groups, including the Obama administration, have signaled their intention to challenge the constitutionality of the legislation, and the legal battle may very well work its way up to the U.S. Supreme Court. In the meantime, an important national conversation will be taking place. 

Make no mistake; the numerous legal defects in this law are clear as day.  Most notably, the law flies in the face of the explicit constitutional prohibition against states acting in realms where the federal government has sole jurisdiction, such as immigration policy and border control. Just as flagrant is the law’s convenient disregard of individual (undocumented or otherwise) civil liberties such as constitutional rights to Due Process of Law and against Unreasonable Searches/Seizures, with Arizona law enforcement given carte blanche to essentially engage in racial profiling and arrest anyone who looks, sounds or smells undocumented, or is otherwise “reasonably suspected” to be in the U.S. without legal status. The constitutional issues are numerous, as are the logistical challenges, including the ugly reality of  violent criminals being given the upper hand against their undocumented victims or witnesses, with law enforcement now assigned the conflicting responsibilities of not only arresting the violent offender, but also their undocumented victim or witness.

For sure, this new Arizona legislation has gotten people talking, both in support and opposition, and ranging from civil rights leaders, politicians of all persuasions, and of course, to the media pundits. What is clear though is that the people of Arizona, through their state legislators, have spoken and most people in Arizona are not happy with the status quo when it comes to federal enforcement of our border with Mexico and our immigration laws in general. Although the people of Arizona have a right to have their health, safety, and property protected, the goal must be achieved within parameters allowed by our constitution, and thus they will not have the final say on the implementation of the new measure. Again, the new Arizona law has restarted an important conversation, but whether it will be an honest one or one involving politician/pundit posing opportunities remains to be seen. Unfortunately, from the looks of it, posing appears to be the dominant theme, as we seem to be becoming a society too quick to accept fear mongering and sensational presentations as foundations of our world views.

The importance of Arizonians’ concerns with regard to crime, border enforcement, and the use of its financial and natural resources should not be minimized. However, the answer lies not in draconian, desperate state action, but solutions that will come from our U.S. Congress and President.  Hopefully, strong Congressional and Presidential leadership will prevail, with the American public being reminded that it was former President George W. Bush, along with John McCain and legions of other Republicans who most recently championed legislation to strengthen U.S. borders AND enact comprehensive immigration reform – with a path to U.S. citizenship for most of our country’s undocumented population. Unfortunately, now that it is President Obama, and legions of Democrats who are championing this dual initiative, there are conveniently only a handful of Republicans supporting the cause, with most Republicans speaking to American voters’ fears, anger, and resentment.

In assessing the options outlined above with common sense and clear headed thinking,  one can be sure the option of initiating removal proceedings against so many millions of people is in no way financially, logistically, or even emotionally realistic.  Rather, the option advocated by President Obama, and previously advocated by President George W. Bush and presidential contender John McCain, featuring enhanced border enforcement and legalization of the undocumented is the sensible approach and one superior to mass deportations or the status quo.  But for this realistic, common sense answer to have a chance, we will need two important ingredients: 1) honest and gutsy presentations by politicians and 2) a clear thinking, and practical, public. That seems like a long shot these days.

PUBLISHED April 24, 2010 – “IMMIGRATION LAW FORUM”
Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois

For about the tenth time in the past decade, I am writing about a new legislative initiative presented to allow for the legalization of the vast majority of those present in the U.S. in violation of our immigration laws. This time, the initiative is called Comprehensive Immigration Reform for America’s Security and Prosperity Act of 2009 (“CIR ASAP”). The measure was introduced before the U.S. House of Representatives on December 15, 2009 by Congressman Luis Gutierrez (D-IL), a lawmaker who has shown himself to be a leader in the comprehensive immigration reform movement. Gutierrez, like many other politicians in Congress, along with our President, realizes that eventually our society has to make a choice about what we will do about our nation’s 15 million or so undocumented individuals. Absorb? Deport? Some stay, some go?

Whatever the solution, for sure, by doing nothing our country ignores the issue and pretty much establishes a de facto amnesty, where the status quo is maintained and the undocumented population continues to be allowed to live and work in the U.S., albeit in the shadows. Based on the underlying premise of most undocumented workers’ embarking for the U.S. in the first place (“better to be in the U.S. illegally and make a living and get ahead than be in my home country legally”), this population will not be packing their bags for a trip home anytime soon, no matter the level of immigration enforcement.

CIR ASAP includes a broad range of initiatives, including enhanced border security and immigration law enforcement, improved verification systems for employers and otherwise establishing some integrity in our broken immigration system. The truly potent, provocative goodies in the legislative proposal involve the legalization of the undocumented population.

The most notable provision allows for the out of status/no status foreign national to establish an interim legal status by, among other requirements,

a) documenting their unlawful status in the U.S as of December 15, 2009,
b) paying an application fee, along with a $500 fine, and
c) attesting to having made societal contributions through employment, education, military service, or social service volunteering.

The applicant would also need to demonstrate a relatively clean criminal record, where a felony or three (3) misdemeanors will prompt ineligibility.

Other highlights of the CIR ASAP:

• Allows for adjustment to permanent status after a six (6) year interim, conditional status. In conditional status, while awaiting permanent status, an applicant will have the right to work in the U.S. and travel internationally; individuals in removal proceedings will be among the pool of eligible applicants.
• DREAM ACT: similar to above provision, except that students brought to the U.S. before 16 years of age would have an accelerated path to permanent residence upon high school graduation, completion of two (2) years of college study or several other milestones,
• Expands opportunities for U.S. employers to hire and keep foreign workers by liberalizing rules for facilitating temporary and permanent (immigrant) visas for foreign workers and
• Provides greater discretionary authority for Immigration Judges presiding over a long time U.S. resident’s removal (deportation) hearing.

There are at least another 100 interesting provisions included in this legislative proposal. Most likely, though, if and when any of these measures get signed into law, the details and language will probably only faintly resemble this proposed language. To many in Congress, a measure like CIR ASAP is toxic territory, where any type of support for this cause will open up the floodgates for criticism and accusations of “rewarding the lawbreaker.”

Certainly, for any sort of immigration reform to pass, courage and brutal honesty will have to find a way into the discussion — particularly to get past the argument that, in the end, the lawbreaker may very well be rewarded. But, looking at the potential benefits such reform may yield for our society, including a substantial economic shot in the arm (think of all the billions of dollars the 15 million undocumented will start spending knowing that their stay here is secure), as well as the cost of doing nothing, comprehensive immigration reform, in some form or another, is inevitable. Here’s hoping that the introduction of CIR ASAP at least gets an honest and courageous conversation started.

PUBLISHED December 16, 2009 – “IMMIGRATION LAW FORUM”
Copyright © 2009, By Law Offices of Richard Hanus, Chicago, Illinois

For citizens of North American countries such as Canada and Mexico, the path toward obtaining a nonimmigrant visa or permission to work in the United States is often much simpler than applying for the H-1B. Since the enactment of NAFTA (the North American Free Trade Agreement) in 1994, workers in certain employment categories have been welcomed to the U.S. along with their families in one-year increments, with the freedom in some cases to renew indefinitely. As we approach 2009 – the year by which the NAFTA accords were set to be finalized – the parameters of the TN (Trade-NAFTA) program have continued to expand. As of last month, TN applicants are eligible for initial approval of up to three years (as opposed to only one year), again with the option in some cases of unlimited renewal (in up to 3-year increments), and applicants’ immediate family members may join them on derivative TD status for the same amount of time.

How do I apply for the TN Visa? How do I know if I’m eligible?
Those eligible for the TN program include professional workers (for example, accountants, engineers, lawyers, pharmacists, scientists, teachers, and certain other professionals and skilled workers) within the categories defined by NAFTA who have received an offer of employment from a U.S-based company.

The process of gaining entry differs slightly for Canadian and Mexican citizens, with Canadians facing less red tape. For Canadians, no visa is required and documentation to facilitate entry in TN/TD status can be presented to Customs and Border Protection officials at most ports of entry. For Mexicans, a visa is required, and a visa application with supporting documentation must be presented at a U.S. consular post in Mexico. In both cases, the required documentation includes:

• detailed letter from the employer featuring a company profile and the specifics of the job offer
• professional and/or educational credentials, e.g. licenses, degrees, etc
• proof of citizenship
• necessary fees

As stated, Mexican applicants are required to first obtain a visa through a U.S. Consular post, which involves completing an online Nonimmigrant Visa Application for each member of their family (self included), scheduling an interview with the post, paying the necessary fees, completing a biometrics requirement, and ensuring that all of the requisite detailed documentation is prepared in advance of the interview. Decisions are issued shortly after the interview.

How does the TN Visa differ from the H-1B?
The TN program can be a nice alternative for U.S. employers and North American workers, because the requirements are simpler than those for the H-1B program. Also, NAFTA’s job categories are broader, allowing more non-degreed workers such as “scientific technicians” and “management consultants” to be approved for temporary admission. Additionally – and quite significantly – the TN program is not subject to the yearly cap that makes the H-1B so difficult to obtain. Moreover, because there is no deadline or availability start-date for TN applications, the approvals are decided on a “rolling basis.” This means there is nothing like the annual “race” for H-1B visas, and the entire TN process is, in general, much faster and more efficient.

Why does this program exist? What is the point of NAFTA?
Ultimately, the North American Free Trade Agreement was created to foster economic relations between Canada, Mexico, and the U.S. by eliminating barriers to trade – such as tariffs on agricultural goods, and barriers to the exchange of labor between the countries. The TN program allows U.S. firms to hire workers from Mexico and Canada more easily, and the increase to three years for initial approval – finalized last month – will cut down on time and paperwork for firms who wish to employ foreign labor on a longer-term basis.

While the laws governing the extension of visitor/tourist visa status for foreign nationals visiting the U.S. have not changed, the manner in which the Department of Homeland Security’s Citizenship and Immigration Service (CIS) is applying the law certainly has. This change in approach is definitely reason for prospective applicants to think twice about seeking to extend their stay in the U.S. Firstly, as many of our readers know, for those required to obtain a visitor visa (B-1/B-2) to enter the U.S., the process and requirements for getting the visa in the first place are anything but easy. The most notable requirement, and the one that typically dooms most visa applicants chances, is the one where the foreign national is required to demonstrate their nonimmigrant intent, i.e. that they have a sincere intention to return to live in their home country. In sum, applicants with good jobs, significant family ties and personal and real property of substantial value (including nice homes and bank accounts) in their home country, have the best chances of being issued a visa. Those without at least a few of these goodies are generally turned down.

Once the visa is issued and the applicant has the freedom to travel to the U.S., additional restrictions come into play. No matter the term of validity of the visa issued by the U.S. consular post or the fact that is valid for multiple entries, visa holders must be aware of a strict, yet uncertain set of rules governing how and when they can travel and/or remain in the U.S. Most notably – as of late, foreign nationals visiting the U.S. who seek to extend their visa status beyond the initial 3 or 6 month period typically granted upon admission, have been greeted with a big surprise: outright denials, and without a chance to respond to a Request for Evidence or further explain their reasons for seeking a stay. Just a denial, and of course, with instructions to depart the U.S. within 30 days.

So, what used to be a fairly straight forward process, with little supporting documentation required, has become a minefield. Visitors to the U.S. seeking to extend their stay should know that CIS wants to have details, details and more details about why the initial grant of 3 or 6 months upon admission did not allow the visitor to accomplish the purpose of their visit in the first place. And maybe, with enough details the visitor status extension can be secured. In addition to demonstrating a) the financial ability to support themselves during an extended stay (by documenting their own personal funds or by way of a sponsor’s affidavit of support) and b) a firm plan to return to their home country following the extension, applicants must provide a detailed itinerary for their extended period being sought.

From my office’s experience sometimes details are not enough, and an applicant, after being issued a denial, is left with the choice of simply abandoning the effort, or seeking to have the decision overturned by way of a Motion to Reconsider. Motions to Reconsider indeed do work, but given the uncertain timetable and prospects for success, the overall environment is one where prospective applicants are being given the following messages: think twice about seeking to extend your stay, and if you nevertheless want to give it a try, you better have a really good reason.

Foreign nationals are also advised to consider that the more time a visitor visa holder spends in the U.S., the more scrutiny the individual will receive upon future attempts to reenter the U.S. Essentially, border inspectors are charged with the responsibility of evaluating the visa holders true intent, i.e. is the intending visitor truly just a visitor or are they using the visa to live/work in the U.S.. So, notwithstanding the term of validity of the visa, the prospective visitor needs to be aware that their visa does not grant them the right to travel and/or remain in the U.S. without limitation. Those who do not give due consideration to these restrictions, face the very real possibility of either being denied reentry or even having their visa cancelled.

This is a question that has arisen with increasing frequency in the past year with hundreds of thousands of long time permanent residents facing the need to renew expiring permanent resident cards (aka “green cards”). The simple answers – for those without criminal issues: No. For those with criminal issues: Maybe.

Individuals who have accumulated one or more criminal convictions since the time they have become permanent residents are certainly advised to give serious consideration to seeking legal counsel prior to submitting their I-90 applications to renew their resident cards. That is because U.S. Department of Homeland Security is using the renewal process as an opportunity to review the applicant’s record for any criminal or terrorist activity and if they deem appropriate, seek to strip the resident of their status and place them in removal (formerly known as deportation) proceedings.

The type of scrutiny now being applied in the resident card renewal process is not unlike the screening process that takes place during the course of N-400 naturalization processing – for residents applying for U.S. citizenship, – or during the course of a resident’s inspection process when they seek to enter the U.S. following a trip abroad. The question DHS seeks to have answered appears to be the same: do new and improved post-9/11 federal government databases indicate that this resident has engaged in activity which should trigger further investigation and possibly the initiation of removal proceedings.

Here are some more questions and answers on issues that frequently arise in the green card renewal process (Form I-90):

What kind of criminal activity triggers the initiation of removal proceedings?

In all but the rarest of cases, it takes a criminal conviction, and not just an arrest or charge. Moreover, the conviction usually must be on the more serious side of the spectrum, although it is entirely possible that even a misdemeanor conviction can have removal consequences.

Can convictions for traffic offenses, such as Driving Under the Influence trigger removal proceedings?

Traffic offenses are generally harmless. Applicants with more than a couple of DUI convictions, or even a single Felony DUI conviction may, however, find themselves at risk of being placed in proceedings.

Does being placed in proceedings mean the permanent resident will be deported?

Absolutely not. Once placed in removal proceedings, permanent residents have an opportunity to present a defense. Depending on various factors, including the seriousness of the conviction, the number of years they have lived in the U.S. and potential hardships they or their family may face, the resident may very well be able to retain their resident status and remain in the U.S.

In some circumstances, it may be appropriate and/or necessary for the resident to seek to have their conviction vacated (as opposed to expunged) because they were not provided with effective counsel during the criminal proceedings and not advised of the immigration consequences of pleading guilty by their criminal defense attorney.

If I am placed in removal proceedings, does that mean I lose my resident status immediately?

Absolutely not. Residents who are fighting their case in removal proceedings remain permanent residents throughout the time their case is pending before the court, and even on appeal. Thus, the resident continues to retain all of their rights to live and work in the U.S., although it would be most unadvisable for them to attempt to travel internationally while removal proceedings are ongoing.

The discussion above is scary and serious. Thus again, with their life and liberty in the U.S. at stake, permanent residents with criminal convictions seeking to renew their resident cards are advised to seek legal counsel before starting the process. (Please note that the discussion above does not address the many separate and distinct issues faced by conditional-marriage based, 2 year resident aliens who are seeking to remove their conditional status and convert their status to that of a permanent resident.)

On August 22, 2007, the U.S. Citizenship and Immigration Services (CIS) issued a proposed regulation that would require approximately 750,000 lawful permanent residents (LPRs) with permanent resident cards (aka “green cards” or Form I-551) that do not have an expiration date on them, to replace them for modern cards with expiration dates and other security features. Although the public comment period ended on September 21, a final regulation has yet to be issued, and this proposed requirement has yet to take effect.

As many of you know, permanent resident cards are issued to LPRs of the United States as evidence that they are authorized to live and work in the United States and reenter after international travel. Since August 1989 and up to the present, these cards have been issued with a 10-year validity, and residents are required to renew them every ten (10) years. However, between 1979 and 1989, permanent resident were issued cards without expiration dates and up to this time, these residents have not been required to replace them. Thus, it is the renewal/replacement of cards issued between 1979 and 1989 that the proposed regulation seeks to facilitate. (Cards that were issued before 1979 have already been the subject of a regulation requiring replacement.)

Once the regulation is implemented and the requirement goes into effect, USCIS will establish an application process and filing period (120 days) during which time all LPRs with green cards that do not expire will be required to file an Application to Replace Lawful Permanent Resident Card (Form I-90) and pay the fee of $370.00. As part of the application process, residents will be required to provide current biographic information as well as photographs and fingerprints.

The proposed regulations will not only update USCIS’ records with current biographic data, photographs, biometrics and background checks of current LPRs, but will also replace the outdated cards with cards containing greater security features. Importantly, impacted LPR’s with criminal convictions in their background are advised to consult with an attorney to discuss possible deportation consequences they may face as a result of this renewal procedure.

Critics of the proposed regulation have complained that the proposed 120 day renewal period is far too short and does not allow adequate time for all those affected to be informed of the change and ultimately comply with the new requirement. Additionally, there is concern the USCIS will be barraged by hundreds of thousands of applications at the same time, resulting in massive backlogs and delays. Critics have also argued that the $370.00 application fee is unfair. “If finalized and implemented as proposed, the rule would be another glaring example of the government imposing unreasonable demands at a high price on immigrants,” Rep. Luis Gutierrez (D-Ill.) said. “This is an absurd way to go about treating people who have followed all the rules.”

There has also been confusion regarding the current validity of the cards in question and the status of those carrying these cards. However, on December 11, 2007, Christopher Bentley, the Press Secretary for USCIS recently released a statement saying “[d]espite rumors to the contrary, ‘green cards’ (I-551) with no expiration dates are still valid, and lawful permanent residents carrying those cards will continue to received all appropriate benefits. These cards will remain valid until the implementation of the final rule addressing this issue.”

Again, it is important to note that as of the date of this article, the proposed requirement has yet to take effect . However, any LPR in possession of a green card without an expiration date is indeed eligible to file for a new card at this time if they so choose, or alternatively, may simply proceed with the filing of an Application for Naturalization.

Oklahoma Governor Brad Henry signed a bill in May that invokes tough measures enabling the state of Oklahoma to combat illegal immigration. The law, which is entitled the “Oklahoma Taxpayer and Citizen Protection Act of 2007″ takes effect November 1, 2007. The Act states that “illegal immigration is causing economic hardship and lawlessness in this state” and includes the following new laws:

• making it unlawful to transport/conceal/shelter any immigrant that has “come to, entered or remained in the U.S. in violation of law”. Breaking this law could result in a year or more of prison or fines exceeding $1,000.00,
• specifying which public and private entities can create identification documents,
• instructing law enforcement to determine the citizenship of persons charged with felonies or with driving under the influence. If the person is not a U.S. citizen, his/her immigration status must be determined. If the person is not in legal immigration status, the Department of Homeland Security is to be contacted.
• requiring that employers use a “Status verification system” and requiring that contracting entities obtain status proof from independent contractors,
• limiting public benefits to immigrants not in legal status,
• limiting higher education opportunities to immigrants not in legal status and
• allowing the state government to create a Memo of understanding with the federal government to ensure enforcement of federal immigration laws within the state.

The National Coalition of Latino Clergy & Christian Leaders (CONLAMIC) is spearheading legal efforts to challenge the constitutionality of the law in the Northern District Court of Oklahoma, stating that the law is unfair to all immigrants, legal and undocumented. (The first lawsuit was dismissed on the grounds that CONLAMIC did not have standing to sue as the organization has not been injured by the law. CONLAMIC filed a new complaint on October 25, 2007, which added corporate and individual plaintiffs, seeking an emergency hearing to request an injunction against the law taking effect. The Judge denied the motion for injunction. The government is expected to soon file a motion dismissing the suit.)

Governor Henry said that he reluctantly signed the bill because he feels it will ultimately be the responsibility of the federal government to pass measures that will succeed in curbing illegal immigration. However, efforts of this kind by Oklahoma and other states such as Missouri certainly succeed in frightening, intimidating and punishing undocumented immigrant populations and those who employ them. Whether or not laws like Oklahoma’s will motivate Congress to address the issue in a comprehensive manner remains to be seen.