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Blandon Law Immigration

Friday, April 30, 2010

REPAIR when broken

      Yesterday, on April 29th, Senators announced a proposal for immigration reform.  It is a relatively short, 26‐page “framework of concrete bipartisan ideas,” known as Real Enforcement with Practical Answers for Immigration Reform (REPAIR).
      The proposal seeks a workable middle ground on the following issues:

Border Enforcement
Enforcement of Immigration Laws in the Interior of the U.S.
Biometric Identification and Employment Verification
High Skilled Immigration, Immigration of Lower‐Skilled Workers , Promoting Family Immigration
Registration and Legalization Plan for Foreigners in the U.S. without Authorization

     Without such a federal overhaul, the fear is that states will independently create laws to deal with immigration problems.  This would be disastrous because immigration, at its essence, is the system of laws relating to how the United States deals with foreign countries and their citizens.  A clear example of this is that Mexicans are now boycotting Arizona as a result of that state's efforts on immigration.

Wednesday, April 28, 2010

Administrative Review -- AAO and BALCA

     The Administrative Appeals Office (AAO) is like an appellate court which is not bound by the decisions of the Citizenship and Immigration Service. There is no review of the denial of an extension of stay or change of non-immigrant status. However, the AAO does review many other decisions by Immigration.
     The Law Firm helps foreigners when the following types of cases are being reviewed by the AAO:

I-140 Employment-based preference petitions,
Revocation of approved petitions,
Applications for permission to reapply for admission into the US after deportation or removal,
Applications for waiver of certain grounds of inadmissibility,
Petitions for temporary workers,
Applications for re entry permits, and

    The AAO does not review denied I-130 petitions as those are reviewed by the Board of Immigration Appeals. The I-130 petition is the petition by a US Citizen or Legal Permanent Resident for a foreign relative.
     In addition, the Firm helps foreigners with appeals to the Board of Alien Labor Certification Appeals. BALCA reviews denials or revocation of Labor Certifications. These decisions are made by a Certifying Officer. The Law Firm also represents employers when BALCA is reviewing a challenge to the prevailing wage, which is the minimum wage that a US employer must agree to pay a foreigner under the Labor Certification process. This minimum wage is set so that an employer cannot hire a foreigner for less money than she would pay a U.S. worker.

Tuesday, April 27, 2010

What Happens if I Don't Win My Case at the Asylum Office?

     When the Citizenship and Immigration Service does not approve an asylum application, the Immigration Officer refers the foreign national to Immigration Court. Sometimes referral is the result of CIS not having jurisdiction over that type of case. For example, foreigners who apply more than one year after their arrival in the United States are often referred to Immigration Court. In that way, an Immigration Judge can determine whether the exceptions to the one-year deadline apply.
     The removal proceedings before the Immigration Judge are divided into two different types of hearings. At the Master Hearing, the foreigner's identity, removability and possible relief are discussed. If there are any questions as to whether the foreigner should be deported, the Immigration Judge schedules additional Master Hearings to discuss those issues. The evidence proving asylum is offered at an Individual or Merits Hearing. At this kind of meeting, the foreign national will provide testimony and will be cross examined by an attorney representing the Department of Homeland Security. The Immigration Judge will also question the applicant and review all documentary proof. More than ever, proof of persecution through documents -- as opposed to proof that is presented only through testimony -- is required to win an asylum case.
     Whether or not the foreign national wins the asylum case, an appeal can be filed later with the Board of Immigration Appeals (BIA). And if the foreigner does not win before the BIA, she may be eligible to appeal to the federal courts.

Monday, April 26, 2010

Must a Woman Take Her Husband's Last Name for Immigration?

     When residency is based on marriage to a U.S. citizen, foreigners do not want to make any mistakes.  That may be why I am often asked the question by foreign national women whether they must take their spouse's last name.  The unspoken statement is that they don't wish to, but they also don't wish to jeopardize the success of their case.
     Well, I'm here to say that experienced Immigration Officers don't care about the maiden-to-married name switch.  Retaining the maiden name is commonplace in the cultures of many countries, so an officer would be accustomed to that tradition.
     If there is any further question on whether to retain the last name, though, click through to Catherine Rampell's article this week in The New York Times.  A group of Dutch researchers recently published their findings that women who change their name at marriage make nearly $400,000 less over their lifetimes than women who do not. They are viewed as older, less educated and unmotivated compared to women who kept their names when they tied the knot.

Friday, April 23, 2010

Voluntary Departure Instead of Deportation

     Although the decision whether to risk deportation or apply for Voluntary Departure (VD) must be considered carefully, the latter might be part of a grander strategy for a foreigner to leave the U.S., obtain a visa abroad, and return to the country legally. VD avoids a deportation order, which punishes the foreigner with a definite period of years during which a she cannot return to the U.S. -- even if, for example, she is married to a U.S. citizen or has an employer willing to petition her.
      Either the Department of Homeland Security (DHS) or an Immigration Judge (IJ) can grant VD.  DHS may grant VD up to a total of 120 days to a foreigner who agrees to depart the United States at her own expense.
     Once the foreigner has been caught and placed in removal proceedings, an IJ can grant Voluntary Departure either before the master hearing or at the merits hearing. If it is granted prior to the completion of proceedings, the IJ can grant up to 120 days. The foreign national must request no other relief, concede removability, and waive appeal.
     A foreigner may also apply for VD at the conclusion of a Removal Hearing. In that case, however, the Immigration Judge may grant no more than 60 days and the foreign national must meet certain conditions. The foreign national must have been physically present in the United States for at least one year before the issuance of the Notice To Appear (which begins removal proceedings), must be a person of good moral character for at least five years, must post a bond, must have the ability to leave at her own expense, and must not be deportable as an aggravated felon.
     An immigration professional will advise whether and when a foreigner should apply for VD. Never replace professional advice with the oral suggestions made by a DHS official or even an Immigration Judge.

Thursday, April 22, 2010

Cancellation - Avoiding Removal and Becoming a Legal Resident

     An Immigration Judge has the power to cancel the removal, meaning cancel the deportation, of a Legal Permanent Resident (LPR). This is possible if the LPR has been a resident for five years, has lived in the US continuously for seven years after having been admitted in any status, and has not been convicted of an aggravated felony.
     An Immigration Judge can also cancel the removal of a foreigner who is not yet a Legal Permanent Resident. If this type of cancellation is granted, the foreigner becomes a Legal Permanent Resident on the spot. The foreigner must have been physically present in the United States for at least ten years before applying for cancellation, must have been a person of good moral character for ten years, and must not have been convicted of certain offenses. In addition, she must establish that removal would result in exceptional and extremely unusual hardship to her US citizen or LPR spouse, parent or child. This is an extremely difficult burden as the Immigration Judge will be looking for something beyond the usual burden of separating family members. A great deal of evidence is required to prove hardship. 
     Because cancellation is a process that involves the organization of a great deal of evidence, knowing the proper legal argument, and having extensive experience with the particular Immigration Judge assigned to the foreigner’s case, it is vital to retain the right immigration professional when seeking cancellation.

Tuesday, April 20, 2010

Labor Certification -- what it is and what it is not

     Labor Certification is the first step in a long process for a foreigner to obtain legal permanent residency based on employment. The employer submits information to the Department of Labor (DOL). Through labor certification, the DOL verifies that there are not sufficient U.S. workers available and that employment by a foreigner will not adversely affect the wages or working conditions of U.S. workers. Once an employer has a Labor Certification for a job opening, the employer can petition a foreign worker with Citizenship and Immigration Services.
     Labor Certification does not give the foreign employee any status in the United States. It does not give work authorization or permission to travel abroad. Fortunately, some jobs do not require a Labor Certification process at all. For example, foreigners with extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers do not need the certification of the Department of Labor.
     The Labor Certification process affects whether and when a foreigner will be able to apply for residency. Although a Labor Certification for someone with only a bachelor’s degree level of education and experience might be approved, it would be wise to obtain a different kind of certification. At that level of education, the foreigner may not obtain residency for many years because visas are not available for persons with only a bachelor’s degree. In order to make sure that the Labor Certification is not only approved, but also approved in a way that will enable the foreigner to obtain legal permanent residency as soon as possible, please contact a professional immigration specialist.

Friday, April 16, 2010

I've Been a Resident Forever -- Why Should I Become a Citizen?

     There are many benefits to becoming a U.S. citizen, not the least of which is casting your voice by vote in the way this government is run.  Another excellent reason, though, is that naturalization places a foreigner out of the reach of the Citizenship and Immigration Service.  It is very difficult to denaturalize someone and deport her.  Until a person is a U.S. citizen, she is subject to the whims of laws relating to foreigners.  And if you think that's not frightening, read a part of the bill that the Arizona state legislature might enact:
     "Another provision criminalizes any long-term lawful permanent resident if he or she is on any public or private land in the state but not carrying his or her alien registration card. Thus, a green card holder who goes out to his front yard in his bathrobe on a Sunday morning to fetch the newspaper is a criminal if he doesn't carry his green card with him to the end of the driveway and back."
     This is from the blog of the President of the American Immigration Lawyers Association.  Immigration attorneys can only help those who want to help themselves.  I urge foreigners who believe they may be eligible for naturalization to apply at once.  If they have been arrested, analysis of eligibility by a competent immigration professional is a must.

Thursday, April 15, 2010

Residency for Persons with Bachelor's Degrees

     Employment-based residency can also be obtained by foreign nationals with a bachelor's degree or the foreign equivalent. The Citizenship and Immigration Service maintains that a degree is required. Experience is not enough, regardless of the amount of years. 
     There are two main disadvantages to this category, which is known as third preference. First, a foreign national currently cannot apply for residency even if the employer's petition is approved. This is because applying for residency depends on visa numbers being available. Visa numbers are currently not available for third preference category foreigners. The Visa Bulletin changes each month. Because so many persons have at least a bachelor’s degree, visa numbers will probably not be available for some time. Second, the lengthy Labor Certification process is required for all foreigners in this category.
     To avoid these problems, Blandon Law tries to qualify the foreign national in a higher category. When that is not possible, the employer must demonstrate that the duties of the job require knowledge which can only be attained of a person with a bachelor's degree. At all times, the duties control. Therefore, Blandon Law assists employers and employees in gathering the required evidence and presenting it to Immigration in such a way as to prove that the degree is required.
     Call 954-385-0157 if we can help you.

Wednesday, April 14, 2010

Priority Workers

     Foreigners can become Legal Permanent Residents (LPRs) based on employment under a preference system. Persons included in the first preference category, known as priority workers, obtain LPR status the fastest. This category is limited to persons of extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers. In one case, a multinational executive received residency in less than forty days after applying. Priority workers also avoid the lengthy process of Labor Certification.
     The Citizenship and Immigration Service judges very carefully whether a foreigner applies for the first preference category. Thus, the Firm’s services include gathering, organizing and editing the evidence as needed. The Firm also presents legal arguments, when needed, that a foreigner is entitled to residency under this classification.
     Unlike other foreigners, an extraordinary ability worker does not need a specific job offer to apply for residency. However, the applicant must prove that she intends to pursue work in the United States in the area of her expertise. This extraordinary ability is demonstrated by sustained national or international acclaim.
     An outstanding professor or researcher must be recognized internationally in the specific academic area. Foreigners seeking to qualify in this category must have a job offer either in a tenured or tenure-track teaching position, a position at an institute of higher education to conduct research, or a comparable position with a private employer.
     Finally, multinational executives and managers must have been employed for one year in the last three years by a foreign company which now seeks to transfer the foreigner to work for an affiliate or subsidiary in the United States. Managerial and executive capacity is specifically defined under the immigration laws.

Monday, April 12, 2010

Travel After Obtaining Residency

     Legal permanent residence is not permanent in the sense that it cannot be taken away. A foreigner can abandon U.S. residency by returning to live abroad, by remaining outside of the country for too long or by relinquishing it specifically.
     The Citizenship and Immigration Service (CIS) takes the position that a foreigner definitely abandons residency if she remains abroad for over one year. However, a person may lose her LPR status by remaining abroad even less time if CIS can prove that the foreigner had the intention of abandoning it.
     In one case, a Venezuelan national was placed in removal proceedings because she did not know this. She returned to her home country for only three months, for medical reasons.  However, she was questioned by authorities upon entry to the United States.  In response to “Why are you coming to the U.S.?” she told the officer that she was visiting her son. He asked her to write that statement and she did. Immigration tried to have her deported because a legal permanent resident does not “visit” her home.
     The Firm defended her in removal proceedings. She was able to remain legally in the United States, kept her residency and later applied for U.S. citizenship.

Wednesday, April 7, 2010

Consular processing v. adjustment of status

     Consular processing is the method by which a foreigner obtains a visa – either to come to the United States temporarily or permanently – in an embassy or consulate abroad. Although the Citizenship and Immigration Service (CIS) handles aspects of some visas, the Department of State generally controls whether a visa is issued. Consular processing is the preferred method of becoming a legal permanent resident when a foreigner is living abroad, is ineligible to adjust status, or the person prefers processing at the consulate for strategic or convenience reasons. For example, the Dept. of State schedules interviews at some consular posts much faster than CIS schedules adjustment interviews.
     Adjustment of status is a term used for becoming a legal permanent resident when the foreign national lives in the United States. That process is entirely controlled by CIS. Some persons are ineligible to adjust, including persons who were not legally admitted or persons who are not lawfully in the country. Of course, there are exceptions to every rule. Laws such as 245(i) permit foreigners to adjust status even if they entered illegally or remained without permission. Although these laws expired many years ago, some foreigners can still obtain the benefits as “grandfathered aliens.”
    To determine whether you are eligible for either consular processing or adjustment of status, call Blandon Law at 954-385-0157.

Tuesday, April 6, 2010

The Relationship Between the Law Firm and the Client

     During each step of the processing of an immigration case, the Client and the Firm must work closely together.  The obligation of each at Blandon Law is described in general terms as follows:
  •  Start of Case
Firm – Reviews information and determines best approach to file case.
You – Provide information and documents needed. Ensure that whenever a copy is provided, the original is readily available.

  • Submitting Case
Firm – Prepares applications, organizes evidence, and presents legal argument for complex issues.
You – Wait for receipts, fingerprint notices, and collateral benefits that may be available if you are in the U.S., such as employment authorization and permission to travel abroad.
  • Processing of Case
The type of processing depends on whether the Client is in the United States or abroad. The Firm submits the case to the appropriate government agency, such as the Dept. of Labor, Citizenship and Immigration Services, or the Department of State. Cases that depend on visa availability will be held in abeyance for years.

Firm – Maintains communication with the Client and the government agency.
You – Provide anything requested by the Firm at the earliest opportunity.
  • Interview or Hearing
Firm – Provides representation at government meeting and until benefit is granted.
You – Provide originals and abide by the Firm’s guidance regarding preparation.

     Call the Firm at 954-385-0157 if we can help you achieve your immigration goals.

Monday, April 5, 2010

Can Companies in Financial Straits Hire Temporary Foreign Help?

     Companies sponsor foreigners to work in the U.S. either temporarily or permanently. If temporarily, the worker obtains a visa. If permanently, the worker obtains residency, which is the ability to live in this country legally. In either case, to protect American workers from losing their jobs to cheaper labor, companies must pay foreign workers the prevailing wage of the industry. Salary amounts are determined by the Department of Labor, and can be found in its Wage Library.
     Small companies in particular seem to be prime targets for requests for information by the government, which perhaps believes that hiring should freeze in this economy. The truth is quite the contrary. Persons who help businesses save money or those who help find new clients, like marketing professionals, are in great demand.
     So, if the bottom line of the latest corporate tax return is in the red, how can a company prove it has the ability to pay a new additional salary? The easiest evidence is payroll records demonstrating that the company is meeting its obligations to the foreigner. If the employee has not yet started with the company, the Citizenship and Immigration Service will rely on the net income or the net assets of the business. If either of these is greater than the prevailing wage, the company has demonstrated ability to pay. Finally, if the company is a sole proprietorship, the personal assets of the owner can be considered, including the equity in any real estate.

Thursday, April 1, 2010

Supreme Court Protects Foreigner's Right To Counsel

     Yesterday, the Supreme Court held that criminal defense lawyers must advise their foreign clients about the risk of deportation if they accept a guilty plea. The Court recognized that current immigration laws impose harsh and mandatory deportation consequences onto criminal convictions, and that Congress eliminated from these laws the Attorney General's discretionary authority to cancel removal in meritorious cases.      The case, Padilla v. Kentucky, involved a Vietnam War veteran who resided lawfully in the U.S. for over 40 years. His criminal defense lawyer told him not to worry about the immigration consequences of pleading guilty to a crime, but that advice was wrong. In fact, the guilty plea made Mr. Padilla subject to mandatory deportation from the United States. The state of Kentucky said that Mr. Padilla had no right to withdraw his plea when he learned of the deportation consequence. Today's decision reverses the Kentuc-ky court.
     Those who pled guilty based on similar advice by a criminal defense attorney should call 954-385-0157.  The Law Firm may be able to file a Motion to Reopen to change the immigration consequences of that plea.

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