Brian Lerner

Don’t let ICE Agents Bully You!

Question: I have a friend that was ‘visited’ by ICE Agents. They told him that he had no rights and that he was going to detention for 20 years unless he signed the voluntary deportation papers. Is this true?

Answer: U.S. Immigration and Customs Enforcement (or ICE) is a U.S. federal government law enforcement agency under the jurisdiction of the Department of Homeland Security (DHS). ICE has two primary components: Homeland Security Investigations (HSI) and Enforcement and Removal Operations (ERO). However, how they have been conducting their deportation enforcement falls short of falling under the law.

In sum, under regulations prescribed by the Attorney General, an officer or employee of the Service may carry a firearm and may execute and serve any order, warrant, subpoena, summons, or other process issued under the authority of the United States. The authority to make arrests under paragraph (5)(B) shall only be effective on and after the date on which the Attorney General publishes final regulations which (i) prescribe the categories of officers and employees of the Service who may use force (including deadly force) and the circumstances under which such force may be used, (ii) establish standards with respect to enforcement activities of the Service, (iii) require that any officer or employee of the Service is not authorized to make arrests under paragraph (5)(B) unless the officer or employee has received certification as having completed a training program which covers such arrests and standards described in clause (ii), and (iv) establish an expedited, internal review process for violations of such standards, which process is consistent with standard agency procedure regarding confidentiality of matters related to internal investigations.

Now, given their authority, that is what they can do. However, they CANNOT force you to sign a voluntary deportation paper. They CANNOT force you to give up your right to fight your case in front of a deportation immigration judge. They CANNOT force you to sign anything.

Question: The ICE official came to the door of my friend and pretended to be a police officer and said “Hello. Please open up - We are the police and doing an investigation”. Is that legal?

Answer: The use of this type of tactic, is particularly egregious in heavily immigrant cities such as Los Angeles and San Francisco, where police and elected officials have tried for decades to distinguish their cops from federal immigration agents, in an effort to convince immigrants living illegally in their cities that they can interact with local police without fear of deportation. The president’s announcement of his intent to dramatically increase the number of people ICE apprehends for deportation has increased concerns by immigrant advocates that the tactic will grow even more prevalent.

There is something fundamentally unfair about ICE exploiting local and state policies that are trying to improve public safety by promoting immigrants trust in law enforcement. Thus, the bottom line is that there are many ways of fighting your case. Do not let ICE officials intimidate you and force you into a corner. Stick your ground and don’t sign anything and request your hearing in front of an Immigration Judge.

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Have no family in the U.S.? Try immigrating through Employment

Question: Hello. I have no family in the U.S., but would very much like to immigrate to the U.S. I am educated. Is there any other way?

Answer: Yes, you can be petitioned through employment through what is known as the PERM. There are 3 major steps to obtaining a Green Card through Employer Sponsorship: 1) Labor Certification through the PERM process. 2) I-140 Immigrant Petition for Alien Worker and 3) I-485 Application to Register Permanent Residence.

Question: What are the typical PERM processing times?

Answer: Un-Audited cases take around 2-3 months from filing to certification and audited Cases: 8 months from filing to certification.

Question: Can you give a general overview of the PERM process?

Answer: PERM is the process for obtaining labor certification, the first step of the green card process for foreign nationals seeking permanent residence through their employment. To obtain an approved PERM Labor Certification, the employer must prove (through newspaper advertising and other recruiting methods) that they were unsuccessful in recruiting a qualified U.S. worker for a certain position. The employer must be prepared to hire the foreign worker on a full-time and permanent basis. There must be a bona fide job opening available to U.S. workers.

Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the worker’s qualifications. In other words, the employer must establish that the job opportunity has been described without the use of unduly restrictive job requirements, unless it can demonstrate that they arise out of business necessity. The employer must pay at least the prevailing wage for the occupation in the area of intended employment.

Question: Must the employer pay a certain amount for the position?

Answer: Yes, it must be what is known as the ‘prevailing wage’. Prior to filing ETA Form 9089, the U.S. employer must first request a prevailing wage determination from the State Workforce Agency (“SWA”) having jurisdiction over the proposed area of intended employment. The U.S. employer is then required to include the following prevailing wage information on the ETA Form 9089: The prevailing wage; The prevailing wage tracking number (if applicable); The SOC/O*NET (OES) code; The occupation title; The skill level; The wage source;
The determination date; and The expiration date. The proposed wage for the foreign national must at least be equal to this prevailing wage.

Question: Is this done online or through mail?

Answer: Actually, the Department of Labor has an online portal specifically for PERM’s and it can all be online if done properly.

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What do you do after Win in Asylum?

Question: I have won asylum as of about two years ago. Is there anything I need to do?

Answer: If you have come to the U.S. as a refugee or been granted asylum in the U.S. -- whether from the Asylum Office of U.S. Citizenship and Immigration Services or by an Immigration Judge in court -- you are now allowed to live in the U.S., accept U.S. employment, and travel and return (with a refugee travel document in place of a passport).

Additional rights will become yours with time, such as that to apply for a U.S. green card after one year, and to apply for U.S. citizenship four years after that. Learn more about how to protect and make the best use of your refugee or asylum status here. However, you MUST apply for the Green Card after the one year grant. It is not automatic and will not happen unless you apply.

Question: Can I bring my spouse and children into the U.S. now?

Answer: Once you have been granted asylum, your immediate family members (spouse and children)—whether they are in the U.S. or outside—are entitled to a “derivative” grant of asylum. If your spouse and children were included in your asylum application and are physically present in the U.S., they will automatically receive asylum at the same time as you.
If they are overseas, or were not included in your application, you can file USCIS Form I-730, Refugee/Asylee Relative Petition to obtain asylum for them. Use a separate form for each family member.

For your spouse to be eligible for asylum, the two of you must have been legally married (that is, with a government-issued certificate) before you were granted asylum. For your children to be eligible, they must be unmarried and younger than 21. Thereafter, once you qualify for the Green Card or residency, they will as well.

As for the CSPA, the grant of asylum while your children who are under 21 years of age will have their age locked in so as to be able to apply as an immediate relative for them even after they are over 21 years old.

Question: Can I later become a US Citizen?

Answer: You may apply for U.S. citizenship (to "naturalize") five years after obtaining your green card by filing Form N-400, Application for Naturalization.

Technically, you are eligible to apply for citizenship five years after you officially become a permanent resident. However, one year of your time as an asylee counts as if you already had a green card. This is known as “rollback.” Hence, your green card will specify your starting permanent residence date as one year before your residence application was actually approved.

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DACA demands by White House show no real intention to extend

Question: I just got my
> DACA extended, but I have heard that Trump now is making all
> kinds of demands.
> Is that true?
>
>
>
> Answer: Yes, that is
> true. Those who favor lower levels of
> immigration have been effusive in their praise. Immigrant
> rights activists are
> outraged.
>
>
>
> Question: But I remember a few weeks ago
> when the president seemed to be closing in on an immigration
> deal with, as he
> said at the time, Chuck and Nancy? A few Trump's
> supporters were so angry they
> protested by lighting their Make America Great Again
> baseball hats on fire and
> posting the videos online. Immigration hardliners found much
> to like in the
> White House list. President Trump on Sunday sent Congress a
> list of sweeping
> immigration changes he says "must be included as part
> of any legislation
> addressing the status of Deferred Action for Childhood
> Arrivals (DACA)
> recipients." Of course, this goes completely against
> what was previously
> stated. Basically, Trump wants the border wall he campaigned
> on to be built, a
> crackdown on illegal immigration and to switch the U.S.
> legal immigration
> system from one that prioritizes family connections to one
> based on merit.
>
>
>
> Answer: Correct. So, the reality is that the Democrats and
> Immigration Advocates
> will never ever agree to this. Thus, you need to start
> thinking about other
> options than DACA. Some other options could be the U Visa if
> you are a victim
> of crime, or the VAWA petition if you are a victim of
> domestic violence.
> Alternatively, you could think about employment based visas
> if you have a
> company willing to petition you. Also, if you are married to
> a resident or
> citizen and qualify, you could do Consulate Processing with
> a Provisional
> Waiver.
>
>
>
> Question: So, there are options which I
> might qualify for under Immigration Law?
>
>
>
> Answer: Yes. However, each case is different and you will
> need to have a
> consultation from an immigration attorney to determine the
> best possible way to
> proceed forward. Do not wait until your DACA completely
> expires to move forward
> as you have an opportunity now to be safe and get the real
> petition for your
> eventual residency started.
>
>
>
> Question: Is there a safer place to live
> at the present time?
>
>
>
> Answer:
> Well, California just passed laws which make California a
> sanctuary State
> against the harsh Trump policies. Thus, if you’re not
> living in California, you
> might want to consider moving there as there are significant
> protections
> against Trump’s hunt to deport everyone he
> can.

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Think of getting married after 2 months of entry? Think again.

Question: I entered a couple of months ago to the U.S. I want to get married and file my adjustment application. Do you see any problems with that?
Answer: Yes, it will be a problem. On September 1, 2017, the Department of State (DOS) updated the Foreign Affairs Manual (FAM) with new guidance on the term “misrepresentation” for purposes of determining inadmissibility under INA §212(a)(6), which provides: Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act, is inadmissible.
Specifically, it has been substantially revised, the “30/60 Day Rule” has been eliminated, and new sections regarding status violations or “inconsistent conduct” within 90 days of entry, and after 90 days of entry have been added. The changes articulated in the FAM can have potentially significant consequences for individuals who apply for adjustment of status or change of status after entering the United States on a nonimmigrant visa or temporary basis.
 
Question: What Activities Will Trigger the Application of the 90-Day Rule and How Has This Changed from the 30/60-Day Rule?

 

Answer: Though the wording is slightly different, the following actions that are sufficient to trigger the application of the rule: • Engaging in unauthorized employment; • Enrolling in a full course of academic study without authorization and/or the appropriate change of status; • A nonimmigrant in a status prohibiting immigrant intent marrying a USC or LPR and taking up residence in the United States. • Undertaking any other activity for which a change of status or an adjustment of status would be required, without changing or adjusting status.
 
Question: At What Point Does the 90-Day Rule Create a Presumption of Misrepresentation and How Has This Changed from the 30/60 Day Rule?

 

Answer: Under the new 90-Day Rule, a presumption of willful misrepresentation will be applied to a person who violates his or her nonimmigrant status or engages in conduct inconsistent with that status, as described above, within 90 days of entry. This is significantly different from the prior rule, which allowed for such a presumption only if the status violation or conduct occurred
within 30 days of entry. Under the prior rule, if the status violation or conduct occurred more than 30 days but less than 60 days after entry, no presumption of misrepresentation would apply but if the facts gave rise to a “reasonable belief” that the individual misrepresented his or her intent, he or she would be provided the opportunity to present evidence to the contrary.
 
Question: What if the Conduct Occurs More Than 90 Days After Entry into the U.S.?
Answer: Under the new 90-Day Rule, no presumption of willful misrepresentation arises if the individual violates status or engages in conduct inconsistent with his or her nonimmigrant status more than 90 days after entry into the United States. However, if the facts of the case give rise to a “reasonable belief” that the individual misrepresented the purpose of his or her travel at the time of the visa application or application for admission, rather than providing the opportunity to
present evidence to the contrary, the Consular Officer must request an Advisory Opinion.
This, it now is easier for officers to make the fraud charge and harder for clients to get around it. Thus, be sure before you do anything inconsistent with the B2 Visitor Visa status that you seek the advice of an immigration attorney.
 
 
 
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Prosecutorial Discretion is an option since DACA is rescinded

Question: My DACA expires in about 7 months. However, what will happen after that? Do I have any other options?
Answer: You do have options of which many you will need a personal consultation. However, there is what is known as prosecutorial discretion which is still a possibility.
 
Question: What exactly is prosecutorial discretion?
Answer: “Prosecutorial discretion” is the authority of an agency or officer to decide what charges to bring and how to pursue each case. A law-enforcement officer who declines to pursue a case against a person has favorably exercised prosecutorial discretion. It is essentially a packet which argues why you should not be deported.
 
Question: When can I apply for prosecutorial discretion?
Answer: Prosecutorial discretion may be exercised at any stage of an immigration case. Specifically, prosecutorial discretion may be exercised when deciding whether to: issue a detainer; initiate removal proceedings; focus enforcement resources on particular violations or conduct; stop, question, or arrest a particular person; detain or release someone on bond, supervision, or personal recognizance; settle or dismiss a removal case; stay a final order of removal; pursue an appeal; and/or execute a removal order. Examples of the favorable exercise of prosecutorial discretion in the immigration context include a grant of deferred action; a decision to terminate or administratively close removal proceedings; a stay of removal; or a decision not to issue a charging document in the first place.
 
Question: Who exactly will decide on my prosecutorial discretion packet?

 

Answer: ICE, USCIS, and CBP officers have the authority to exercise prosecutorial discretion. Because prosecutorial discretion is a process that determines whether the government is going to pursue enforcement in a case, the initial decisions are made by those immigration officers assigned to the case. Once the initial decision is made to issue a Notice to Appear (a document that formally initiates removal proceedings by charging an individual with immigration violations), further decisions about continuing the government’s case will be made at higher levels within ICE or DHS. The June 2011 Morton memo clarified that the following ICE officers have the authority to exercise prosecutorial discretion: officers, agents, and their supervisors within Enforcement and Removal Operations who have authority to engage in civil immigration enforcement; officers within Homeland Security Investigations who have authority to engage in civil immigration enforcement; attorneys and their respective supervisors within the Office of the Principal Legal Advisor who have the authority to represent ICE in immigration court; and the Director, Deputy Director, and senior staff of ICE. Ultimately, the Secretary of Homeland Security, as the official within the executive branch specifically charged with enforcing the Immigration and Nationality Act, is in a position to exercise prosecutorial discretion over every case. Because DHS now has announced that the Morton memo will apply to USCIS and CBP, there may be further guidance issued clarifying who within these two components has prosecutorial discretion authority.
 
There are many ways to make the packet more persuasive. Leave time and show all the hardships you can in order to try to get it approved.
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DACA Has Ended. Now What?

Question: I know DACA has ended. What can I do?

Answer: There are actually different categories as the current policy stands. It is important at the present time to know which category you are under so that you can take the appropriate action. On September 5, 2017, President Trump announced that the Deferred Action for Childhood Arrivals (DACA) program will be ending. This impacts almost 800,000 young people who entered the U.S. before age 16 who had temporary protection from deportation and work authorization.

Category “A”: You Do Not Have DACA or a DACA Application Pending. You cannot apply. The program has been terminated and new applications are no longer being accepted by USCIS. However, there might be other options for you such as a Request for Prosecutorial Discretion.

Category “B”: You Have DACA that expires on or Before March 5, 2018. If you have DACA and a work permit that expires on or before March 5, 2018, you can apply for a 2-year renewal, but your application must be received on or before October 5, 2017. This is a very strict deadline and if you do not get the renewal in by that time, you will have lost the 2-year extension.

Category “C”: You Have DACA that expires After March 5, 2018. If your DACA and work permit expire after March 5, 2018, you are not eligible for an extension and your DACA, work authorization, and protection from deportation will expire on the date shown on your DACA approval notice and work permit.

You should use this time to speak with an Immigration Attorney in order to determine other types of relief under Immigration Law that you can apply.

Category “D”: You have a DACA application pending, but not approved. If you have a DACA application that was received at USCIS on or before September 5, 2017, your application will continue to be processed. Hopefully, it was properly prepared and submitted.

If not, then you might want to have it supplemented with the proper evidence and documents.

Category “E”: You have DACA and a valid advance parole travel document. If you have DACA and have a currently valid advance parole document, you may still use the document to travel and return to the U.S. as long as you return BEFORE the document expires. However, even with a valid travel document, CBP can still refuse to let you in. Before you travel, speak to a qualified immigration lawyer. Trump can snap his fingers and end all if he wants, so it is a bit risky.

Category “F”: You have an advance parole travel document application pending. USCIS will no longer process or approve applications for advance parole for DACA recipients. If you have an application for DACA-based advance parole pending as of September 5, 2017, USCIS will close the application and return the filing fees to you.

Thus, there are several categories, so be sure you follow-up accordingly. Also, be sure you find other types of relief you might qualify for under the law.

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Looks like DACA is going to END

Question: I’m on DACA and my friend is renewing DACA and another friend is going to apply for DACA. I have heard rumors about this. Should I be worried?

Answer: Yes, you should be worried. There have been various leaks from the White House. There have also been rumors that a number of White House officials, including former and current White House Chiefs of Staff Reince Priebus and John Kelly, President Trump's daughter Ivanka Trump, and Vice President Mike Pence, want the president to strike an ambitious deal with Congress that offers Dreamers protection in exchange for legislation that pays for the border wall, more detention facilities, legal immigration curbs, and the implementation of E-Verify.

This is atrocious that the President of the U.S. would seemingly use the DACA recepients as pawns to get a Wall built. Ironic that he wants to use as leverage a program that allows persons here illegally to stay here on an approved program in exchange for building a Wall supposedly used to keep people out from coming into the U.S.

Question: As of now, what are the requirements for DACA?

Answer: DACA or Dream Act or Dreamers or Deferred Action as it i s called has the following requirements:

To request Consideration of Deferred Action for Childhood Arrivals, you must meet the following DACA requirements: You were under the age of 31 as of June 15, 2012; You entered the United States prior to your 16th birthday and You have resided in the United States since June 15, 2007 and currently are present in the U.S..

Question: What happens if is ended?

Answer: That is unclear. It is unclear if you are already on DACA as to whether you will be able to continue until it terminates or upon the day Trump does not renew it; whether a renewal already in the pipeline will be able to continue; whether a person outside the U.S. on Advance Parole can re-enter the U.S. without a problem and a variety of other factors.

It is likely that there will be multiple lawsuits depending on the language of the termination of DACA and its provisions. There will be due process requirements and notice issues.

Question: Is there anything I can do?

Answer: Absolutely. There are many ways to fix status and ultimately become legal. While DACA was certainly a good program, it does not mean the other programs will disappear. DACA was issued through an executive order, and therefore can likewise be revoked. However, changing other areas of Immigration Law on a whim it not possible for the President.

Rather, it is Congress that must pass legislation to properly change Immigration. It is a much more complex process. At a minimum, you should see a qualified immigration attorney in order to get a detailed consultation on what other options exist for you.

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Want an E-2 Visa? Look at these issues

Question: I want to open up my own company. Can you you let me know some specifics. For example, I have a friend from Iran. Can he get an E1 or E2? As for E-2’s, Iranians can apply for E-2's anywhere.

Question: Are there any restrictions where the money comes from for the investment?

Answer: Normally, not. However, keep in mind that there are two Russian Banks under US Sanctions. Thus, make sure money does not come from these banks.

Question: What percentage of ownership do I need to have in the company?

Answer: Make sure there is at least a 50% ownership by treaty countries. It is even better if there is a 51% ownership.

Question: What if I renounce my nationality?

Answer: If the principal owner renounces nationality, then the E-2 is gone.

Question: What if there is a merger or acquisition?

Answer: Sometimes merges and acquisitions changes the 50% ownership. If this is the case, then there will no longer be E-2 qualification.

Question: What about employees I need from my home country?

Answer: For employees coming over, you need to still make sure that the main investor gets an E2. The E-2 specialized knowledge employee will differ with the particular Consulate. Some require 2 years actual experience. The consular officer might say that he or she will give just 2 years and that an American is needed afterwards.

Question: What about my spouse and children in my home country?

Answer: An E-2 change of status for you which is approved, will NOT allow E-2 derivatives to get a visa at the consulate. Rather, you need to consulate process with your E-2.

Question: How long will I get?

Answer: E-2's always are now given for 2 years in US., even if the visa is issued for 5 years. However, you can go out 1 week before expiration of visa, and come back with 2 year stamp.

Question: Will the amount of the investment differ?

Answer: For normal business, you will need to look Where as to normality of investment (ie. California needs more than West Virginia). Consulates love Franchises. This is because the business plan is done, it works and the market prices are set. Thus, if your unsure what to invest in, look to a franchise.

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‘My Husband beat me.’ Now it is possible to apply for Asylum.

Question: My husband beat me and I was afraid for my life, so I escaped to the United States. Can I applyfor something so I do not have to go back to my home country?

Answer: Yes, it may be possible to apply for gender based asylum. This is not your normal ‘political’ asylum, but rather, one based on ‘gender based immigration.’ This would be considered a social group.

Question: What is a ‘social group’ and how to define it?

Answer: There are several grounds in which you can apply for asylum. One of the grounds is if you are being persecuted because you are in a ‘social group’. You have to define an immutability characteristic. This is where a person cannot change OR it is so fundamental that the person should not have to change. The social group can be argued differently depending on the particular situation in which you are finding yourself.

For example, in the small amount of information you have given here, the social group might be married persons who are beat by their spouses and cannot get any governmental help. It is not easy to define social group and certain case law actually makes it more difficult. However, do not despair as it can certainly be done.

Question: What if I know somebody in question is not married, but still being beaten by her husband and has escaped to the U.S. Can she apply for this kind of asylum?

Answer: In this case, there is actually an unpublished case that allows this to go forward. However, even without this case, it is possible. You will have to define the social group differently. In this case, I can see some group similarly referencing women that are being beaten, but are in ‘common law’ marriages and/or who have kids that have suffered, etc.

Question: What if my country has laws against domestic violence? Will I not be able to apply?

Answer: Even if country has laws against domestic violence, you can show they are unable or unwilling to enforce it. This is purely a factual endeavour and must be elaborated on and built up during trial.

Question: Are there other issues that I should be aware of when trying to prove my case?

Answer:Internal Relocation is an issue. It is important to clearly document and show if government is going after you that there is nowhere to hide. If it is an individual that is going after you, then you must show how they will follow you.

Also, assuming you had to just pick up and go to escape the beatings, try to show loss of property, loss of livelihood, and whatever you left behind. Try to show the persecutor has a broader reach than just the local place upon which you are living.

Question: Are there any other similar related issues whereby somebody can file for gender based asylum?

Answer:Yes. An example would be child abuse. You would look for the social group such as were children are sold as property, or unable to leave of abusive parents, or sold as sex slaves. Another example, might be forced relationships and/or forced marriages. Additionally, you can see if the particular persecution violates religious views, or race issues. Other issues might be female genital mutilation, homosexuals, homosexual marriages, transgenders. Thus, as you can see, there are many examples of gender based asylum cases.

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