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The stranger who was once us

Friday, February 7th, 2020

Following is an excerpt of my remarks as president of the Asian Pacific American Bar Association of Pennsylvania (APABA-PA), delivered at a Lunar New Year Banquet last night, telling part of my immigrant story:

Many of you may know that citizenship and immigration law is my area of practice.  I myself am an immigrant to the United States.  In fact, I have embarked on two major migrations in my life, one of which happened when I was too young to remember.

This image (nla.news-page12395647) shows the front page of the Canberra Times on March 1, 1980.  That’s me crouched on the ground, next to our meager luggage.  I would turn 4 a few days later.  My parents and I had just arrived at this airport in Australia, at the end of a 10-month journey that started at a small seaport village near Soc Trang in South Vietnam.

But really, that journey started before I was born.  My parents married shortly before the fall of Saigon, and I was born a year later.  Dad worked as a doctor at the Chinese hospital in Saigon, and mom worked there too as an administrator, although she had a law degree.  After the war, the American War as it is known in Vietnam, the new Communist government embarked on a campaign to purge Vietnam of Chinese influence, including encouraging citizens of Chinese descent to return to China, and limiting the professions which they could work.  As a South Vietnamese and an ethnic Chinese doctor, my dad faced the prospect of being relocated by the new government to a “New Economic Zone,” a euphemism for desolate, depopulated rural areas where no one wanted to live.  Even in Saigon, renamed Ho Chi Minh City, the economy was in a shambles and food was hard to come by.  Mom’s milk dried out and I was a fussy baby who refused formula and cried constantly.  My first nickname, “wau wau,” is the sound a whining puppy makes in Vietnamese.  I blame my final adult height (I’m even shorter than my mom) on being born in a time of post-war famine.

Mom and dad faced a decision.  Whether to remain in Vietnam where they faced discrimination and uncertainty about their status from the new government, or whether to take their chances and seek a better life elsewhere.  My grandfather, a colonel in the South Vietnamese Army, had already been forced into a re-education camp (another euphemism).

With a young child in tow, mom and dad decided to leave.  They did not have a final destination in mind when they set out, or an offer of refuge already extended.  Maybe they could make it to France or somewhere else in Europe.  Maybe America.  Maybe Australia.  But first, they had to get out of Vietnam.  They paid for passage on a boat to leave the country.  With the funds from Chinese families desperate to leave, a boat was built for 200.  When it left shore, it carried about 500, and sat too low in the water.  It lurched on the ocean like a turtle scrabbling on land.  When my parents realized how overcrowded the conditions on the boat would be, they faced another decision.  Should we take our chances on this clearly unseaworthy vessel, or abort our journey?  They had already liquidated their assets to pay for passage, and as soon as they vacated their home it would have been confiscated by the government, as they had seen happen to neighbors who had left before them.  They had no home to go back to, and no money to pay for a second try later.  We boarded that boat.

Another young couple came on board with a days-old baby.  That baby did not survive the journey.

Out in the open sea, soon food and drinking water ran low.  Dad would take turns bailing out seawater in return for a small cupful of water which he would give to me.  People were packed tightly in the hold and the stench soon became unbearable, but you had to find a way to bear it.  At night, the boat had no lights so you could not even see the person sitting beside you, and could not tell what was going on or if you were in danger from a fellow passenger.  There was no room to lie down.

Our boat was attacked by pirates three times.  We counted ourselves lucky that the pirates only took money and valuables and no one was raped or killed.  The third time, our boat was approaching land when the pirates began to tow us out to open sea.  We had no valuables left to be stolen.  What would happen to us when the pirates found nothing of value to take?  Why were they towing us out to sea?  Judging it more dangerous to let the pirates do what they wanted than to resist, the men on our boat cut the tow rope and the pirates chose not pursue us.

When we finally approached a shoreline again, and the end of our dangerous sea journey was in sight, the coast guard of Malaysia towed our little boat back out to sea, and they did not hesitate to beat anyone who resisted.  We would not be permitted to land on their shores, we understood, and instead they pointed to a light in the distance, and told us to head there.  What choice did we have?  We steered for the light, which turned out to be a lighthouse, and the shores of Indonesia.  We had spent 9 days at sea.  We were some of the lucky ones.  We made it to shore.

We ended up in a refugee camp in Galang, Indonesia.  I have photos from this time.  The adults are hollow-cheeked and thin.  The children, however, myself included, have full cheeks.  They must have made it a priority to feed the children, even if it meant going hungry themselves.  My parents almost lost me during this time.  I had tagged along with my grandfather to the market one day, while he was carrying my younger cousin.  He failed to notice that I had come along, and I got separated from him in the crowd.  Fortunately, a Vietnamese woman found me and I was able to tell her, even at age 3, our barracks number so she could return me to my family.  My mother had had the foresight to have me memorize that information.  My family had been frantic when they realized I was missing.  When I saw my parents, after holding it together up until then, I burst out crying, and indignantly reported that “Grandpa left me behind in the marketplace!”  (“Ong Ngoai bo con!”)

My parents and I stayed in that refugee camp for about nine months.  During that time, other members of our family were accepted for resettlement to the United States.  We hoped to join them, so that the family could stay together.  Then, my parents were offered the opportunity to resettle in Australia, sponsored by a Christian group.  They faced a choice.  Remain in the refugee camp, waiting to see if they would be allowed to resettle in America, or leave now for a new life without family support, in Australia.  They decided to take the certain offer in hand, rather than wait for who knew how long to be accepted into the U.S.

So that’s how we ended up in that airport in Canberra, one of the first families from Vietnam to come to Australia’s capital city in a new refugee resettlement program.

My dad is quoted in that Canberra Times article.  Asked about our escape from Vietnam, he said “there had been no problems during the journey.”  And that was my dad for you.

We resettled in Australia, with the support of our sponsors.  They had secured housing for us, and stocked the refrigerator and freezer with food — including MEAT!  My parents were astonished at the bounty now available to them.  Back in Saigon, meat had been mostly beyond their means after the war.

One of my mother’s earliest memories of settling in Australia is taking me with her to the supermarket, by bus.  Although she had learned English in Vietnam she was by no means fluent at that time.  On the way home, in the dark, we missed our stop.  Do you know how difficult it is to figure out public transportation when everything is new to you?  My mother did not know what to do.  At the end of the route, the driver asked us what our stop had been, and she was able to tell him.  He turned the bus around and drove us directly to our stop, and we made it home safe that night.

When my brother was born in Australia, my parents gave him a name that means “Everlasting Peace,” their hope for the future as they built their lives anew in a new land.

Ours is just one immigrant story, one refugee story, among many.  I am struck, though, thinking back on our journey, by the kindnesses shown to us by strangers on the way.

As my son once said when we were talking about how he came to be, I am here today because of the Vietnam War and the aftermath of that war.  But I am also here today because a stranger found me in a marketplace in Indonesia, and made sure I got back to my family.  I am here today because a Christian group in Canberra decided to sponsor a young family, strangers to them, fleeing persecution in Vietnam.  I am here today because my parents took a chance for a better life, and took a leap into the unknown.  I am also here today, as president of APABA-PA, because I wanted to serve in an organization that cares about our community and helps to safeguard our rights.  I know, though, that I would not have had the opportunity to do this if strangers had not extended us kindnesses along the way.

Thank you for allowing me to share part of my history with you tonight.

May this year bring health and prosperity to you and your families, and may we all welcome the stranger who was once us.

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Eliminating “residing in the US” for military service members – what it really means

Monday, September 2nd, 2019

After spending an entire afternoon scouring U.S. citizenship law and obscure policy memorandums, I have concluded that the new USCIS Policy Alert issued August 28, 2019, which was touted by many media outlets as stripping citizenship from the children of U.S. military service members, does nothing of the sort.

This USCIS Policy Alert, among other things, modifies the agency’s interpretation of the words, “residing in the United States” in a provision of immigration law, INA § 320, that controls how a child born abroad automatically acquires U.S. citizenship AFTER birth.

For most U.S. citizen parents, their child born abroad is a U.S. citizen AT BIRTH due to other provisions of immigration law.

For example, under INA § 301(c), a child born abroad to two U.S. citizen parents is a U.S. citizen at birth so long as at least one of the parents “had a residence in the United States [...]” before that child was born.  There is no length of residency requirement with this provision, just “residence” in the U.S. at some point in time before the child’s birth.  Most children born abroad of two U.S. citizen parents meet the requirements of this provision.  Only if neither U.S. citizen parent has ever resided in the U.S. would the child not also acquire U.S. citizenship at birth under INA § 301(c).

Another provision, INA § 301(g), provides for automatic acquisition of U.S. citizenship of a child born abroad to one U.S. citizen parent and one non-citizen parent.  That child is a U.S. citizen at birth so long as the U.S. citizen parent was “physically present” in the U.S. for five years (with two of these years being after age 14) before the child was born.   A U.S. citizen parent’s honorable service in the Armed Forces or employment with the U.S. government, if served abroad, can be counted towards the requirement of five years of physical presence in the U.S.   Most children born abroad of one U.S. citizen parent will meet the requirements of this provision.

Most children born abroad to either one or two U.S. citizen parents are U.S citizens at birth, based on either INA § 301(c) or INA § 301(g).  The children of U.S. citizen parents born abroad who do not acquire citizenship based on either INA § 301(c) or (g) have parents who have never lived in the U.S.,  have been physically present here less than five years in the U.S., or had five or more years of physical presence here but left the U.S. before age 16 and never came back.

For children of one or two U.S. citizen parents who cannot acquire U.S. citizenship at birth because their parents’ ties to the U.S. are too attenuated as judged by our laws, the fall-back provisions are INA § 320, automatic acquisition of citizenship after birth, and INA § 322,  naturalization of a minor child residing abroad.  Automatic acquisition of citizenship means that you are a U.S. citizen when all the factors have been met, regardless of whether you apply for a certificate of citizenship or not.  Naturalization requires that an application be filed and approved, and an oath ceremony occur before that child becomes a U.S. citizen.  Naturalization requires a parent to be pro-active in making sure the child gets U.S. citizenship.  Some parents do not know, do not care enough, or simply cannot pull together the resources to naturalize their children.  Given a choice, it’s preferable to get automatic citizenship rather than go through a naturalization process.

The factors required for a child born abroad to automatically acquire U.S. citizenship AFTER birth are:

1.  Have at least one U.S. citizen parent;

2.  Be under age 18;

3.  Be a lawful permanent resident (a.k.a., becomes a green card holder); and

4.  Be residing in the U.S. in the legal and physical custody of the U.S. citizen parent.

The USCIS Policy Alert changed the government’s interpretation of “residing in the U.S.”  Whereas since 2004, USCIS had a policy of allowing service abroad in the military or as a U.S. government employee to count as “residing in the U.S.,” this interpretation is now ended. When I first read about this Policy Alert, it sounded like it affected the automatic acquisition of citizenship at birth, but it does not.  Rather, it concerns the automatic acquisition of citizenship after birth, INA § 320, and citizenship under this provision is only acquired once ALL four factors are met.

The puzzling thing, to me, is who this change will actually affect.  This is because the third requirement under INA § 320, that the child be a lawful permanent resident, makes the “residing in the U.S.” requirement virtually moot.  In other words, if you are not already a lawful permanent resident, you cannot automatically acquire citizenship after birth.  To illustrate, here are some scenarios where this policy change makes no difference:

  • Children born abroad of two U.S. citizen parents, and at least one parent has resided in the U.S. before the child’s birth:  these children are U.S. citizens per INA § 301(c);
  • Children born abroad of one U.S. citizen parent, and that parent has lived at least five years in the U.S., two of those years being after age 14, before the child’s birth:  these children are U.S. citizens per INA § 301(g);
  • Children born abroad to a U.S. citizen parent unable to transmit citizenship, who have never lived in the U.S. and thus have never been a lawful permanent residents:  these children are not U.S. citizens, as they do not meet two of the requirements of INA § 320; and
  • Children born abroad to a U.S. citizen parent, who came to the U.S. to live and became lawful permanent residents while in the custody of the U.S. citizen parent, and then later the family moved abroad again, as happens frequently with military families and the families of U.S. government employees:  these children are U.S. citizens per INA § 320.

I have only identified one scenario where this policy change makes a difference:  where at least one parent and the child were lawful permanent residents, the family goes abroad as part of military or U.S. government service, and then a parent naturalizes to U.S. citizenship while serving abroad.  At the moment one of her parents naturalizes, that child has three of the four factors under INA § 320, but cannot automatically acquire U.S. citizenship due to this policy change, as she is no longer considered “residing in the U.S.” even though the parent is serving the U.S. government in either a military or civilian capacity.  This child would need to wait until the family returns to reside in the U.S. to become a citizen.  For some families, this can be years.  Leave in the U.S. is not considered “residing in the U.S.”

I do not know how often this comes up, but for these U.S. military and foreign service families, this policy change eliminates an existing beneficial interpretation of the law.  I would want to know, what is the citizenship of the child, before she becomes a U.S. citizen either by acquisition or naturalization?  Is she a citizen of the country of her birth?  About 32 countries grant birthright citizenship (jus soli) (see also this link), without conditions, based on birth in that country.  These countries include the USA, Canada, Mexico, and many other Central American, South American, and Caribbean countries.  They do not include all European countries, including the United Kingdom, France, Germany, Italy, etc., nor Australia or New Zealand.  They do not include Japan, China, India, South Korea, or Vietnam.  They do not include most African countries.

If a child does not derive citizenship from one or both parents, and is not a citizen of her country of birth, then she is stateless.  That is a big deal.  A stateless person does not have a right to a passport.  Without a passport or some other kind of travel document equivalent to a passport that person had no right to travel internationally.  A stateless person is not claimed by any country or nation as a person to be protected from harm.

From an immigration lawyer’s perspective, it is better to make it easier for these children to become U.S. citizens sooner rather than later, and to reduce the administrative burdens on the process, rather than to increase them.  One reason USCIS gave for this change is that the Department of State never adopted this interpretation, that is, never allowed service to the U.S. military or government abroad to be considered “residing in the U.S.,” and so this change makes USCIS policy consistent with Department of State policy.  My response to that is we can choose to make it consistent in a way that helps our service members rather than potentially rendering their children stateless while they serve our country.

There are other reasons given, the most significant of which is that this policy interpretation is inconsistent with a change in U.S. immigration law affecting military families enacted in 2008.  If this is the real stumbling block, then maybe we should amend the law to make it easier for the children of U.S. citizens serving abroad to claim citizenship sooner, and with fewer obstacles.

While this USCIS Policy Update does not strip away citizenship from the children of U.S. service members on active duty abroad, it does make life harder for some military families, and delays the acquisition of citizenship until the family returns Stateside.  It is not necessary to make this change at this time.  The law that this policy arguably conflicts with was enacted in 2008, and USCIS did not feel the need to address this potential conflict until now.  This is a choice.  And the result is increased hardship to some military and foreign service families.

 

 

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Perspective from a State Department officer

Thursday, February 2nd, 2017

In my last blog post, “Trump’s deliberate precipitation of an immigration crisis,” I made the case that the “extreme vetting” called for in President Trump’s Executive Order of January 27, 2017, banning immigrants from seven countries, was already in place.  I based this on my experience as an immigration attorney working with visa applicants.

Now, we have the perspective of Natasha Hall, a former Department of Homeland Security immigration officer, providing much more detail about what refugees must go through in order to be let in through our “golden door.”  Please give it a read.

For those who think that this Executive Order is the right move, think about if you were one of these refugees, what should you expect from America?  Think about having lost your home, your livelihood, maybe your family members, all your belongings, and your sense of security.  Think about not being able to go to school or to learn as a child.  Think about your entire childhood spent in crowded, desperate, dangerous refugee camps.  Think about the violence you have witnessed and experienced.  Think about not having enough food to eat, or clean clothes to wear, or clean water to drink or wash with.  Think about needing the kindness of strangers to survive, and knowing that so many times such kindness is not forthcoming.

I understand the justification given for this Executive Order, that we may inadvertently admit a terrorist posing as a refugee, but this is not the way to address that fear, for so many reasons.  In fact, many have argued, and I concur, that this order makes things worse.

If you are ever in need yourself, I would hope that others would hold out a helping hand to you, rather than remember this Executive Order and turn away as we now are in danger of doing to so many.  This order makes it this much harder to be an American in the world.  We reap what we sow.

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Trump’s deliberate precipitation of an immigration crisis

Monday, January 30th, 2017

Since President Trump was inaugurated on January 20, 2017, his actions have turned U.S. immigration into a nightmare for countless numbers of lawful immigrants and visa holders and arriving refugees, and even for naturalized U.S. citizens from certain countries targeted by President Trump.  This does not even take into account those currently being processed for visa applications.

He issued three Executive Orders directly addressing immigration.  He did so without consulting the departments and agencies tasked with carrying out his orders.  CNN reported that “A Border Patrol agent, confronted with arriving refugees, referred questions only to the President himself, according to court filings.”  It reads like a line from a future movie.  The three Executive Orders were first issued on January 25, 2017.  The Executive Order addressing the admission of refugees and other non-U.S. citizens from “countries of particular concern” with regard to terrorism was re-issued on January 27, 2017, with a revised title.  I haven’t even had time to read  the two versions side-by-side to see what if anything has changed between the first and the second version.  This detail is telling in that it clearly shows that this administration cares little for getting things right in its rush to roll out its version of government.

This Executive Order, originally titled “Protecting the Nation from Terrorist Attack by Foreign Nationals” in its January 25, 2017, version, is now titled “Protecting the Nation from Foreign Terrorist Entry into the United States,” in its January 27, 2017, version.

Like President Trump’s inaugural speech, this Executive Order presumes a nation under imminent attack by sinister forces that must be immediately repelled, at all costs.  This “emergency” mindset attempts to steamroll us to blindly surrender our rights and the rule of law in return for a false sense of security that the Trump administration has shown no ability to deliver.  This Executive Order halts the admission of all foreign nationals from certain countries, and then we had to hunt down which countries the President meant, because it was not provided with the Executive Order, not even as a handy addendum.  By “all foreign nationals,” this Executive Order included lawful permanent residents, as it only specifically exempted certain diplomatic visa holders.  So, if you happened to be a lawful permanent resident on, say, vacation outside of the United States when this came down initially it appeared that you too would be banned from returning to the United States for a period of at least 90 days.  The new Secretary of the Department of Homeland Security has taken it upon himself to except this category of foreign national, but until that point the Executive Order itself did not.  Can you imagine the havoc this would have wreaked on families and businesses when their lawful permanent resident family members and employees were stuck without warning out of the country for a period of at least three months?

From an immigration attorney’s perspective, let me tell you that the directives of “extreme vetting” in this Executive Order are either in place already, in terms of background checks and confirming that the applicant actually has the proper basis for immigration or admission to the United States, or are so extreme as to be unlawful or impossible to implement and still keep our system of immigration operative.  I have had clients denied visas who from my perspective clearly merited them.  I have had an Afghan interpreter who worked with U.S. Special Forces and who was cleared for that work and had a letter of support from every officer with whom he worked denied a visa, without explanation as to why for over a year and then ultimately denied on a BS reason.  Believe me, the “extreme vetting” already exists and it is a particular nightmare for visa applicants.  It is known by the banal name of “administrative processing.”  Once a visa case is stuck in “administrative processing” the chances of getting an approval or even a cogent reason for a denial shrink to almost nothing.

It is hard to even know how to begin to point out all the things that are wrong with this Executive Order.

It discriminates based on national origin, with no showing of how such discrimination is necessary to serve a compelling governmental interest, pursuant to the strict scrutiny standard of review.  Such national origin discrimination has been banned in our Immigration and Nationality Act since 1965.  There are arguments that the president has the authority to ban foreign nationals on an as-needed basis.  We are about to find out how extensive that power reaches.  Trump is like a two-year-old child here, testing how far he can push presidential authority before we push back.  What is missing, though, is how this Executive Order promotes the interests of our nation as a whole.  Where are the considered arguments for these extreme actions, the effort to persuade the nation that such actions are needed?  Instead, all we have is a a wink and a nod, asking us to, “Trust me!  I alone can and will protect you.”  Well, in a democracy we need to understand why actions are taken, and to judge for ourselves the justification for those actions, not a meaningless reassurance that everything will be fine.  We are not children to be ignored while the “adults” sink our ship.  (And another thing, under this worldview what happens if Trump becomes incapacitated?  If only he and he alone can save us then this must mean that we are all doomed without his most excellent leadership.  He is after all, in his own opinion, irreplaceable.  Next on the agenda will be a life-term presidency.  It’s the only way for us to be safe.)

The Executive Order also bars the admission of Syrian refugees who have been already been subject to the best vetting processes that our Department of State could devise.  By directing that “extreme vetting” be employed, Trump’s Executive Order implies that the vetting conducted by our Department of State personnel was unsatisfactory, without any proof.  Do you really think that any State Department officer involved in vetting refugee applications would really cut any corners or fail to follow up on any indication of fraud or criminal or terrorist involvement?  What have State Department officers been doing all this time in vetting refugees, if not performing “extreme vetting”?  What State Department officer wants to be the one who let through a Trojan horse refugee?  According to a Time magazine article published in November 2015, it takes an average of 18 to 24 months for a Syrian refugee applicant to be approved for asylum in the United States, after being referred by the United Nations.  That is up to two years of life in limbo waiting for sanctuary, in addition to the time you spent escaping from an unlivable situation.

As a nation that works in cooperation with other nations to promote peace and prosperity globally, we are subject to human rights laws and under these laws we have a responsibility to take in refugees, the most vulnerable immigrants who have lost their homes and many other valuable things on their journey to seek a safe place to re-start their lives.  To turn away refugees is to turn our back on the founding principles of America, that we are a nation of immigrants and refugees and out of that foundation we have forged one of the most vibrant and diverse societies ever known.  Immigrants are disproportionately the most active entrepreneurs in America.  They create businesses and jobs and bring new thinking and new ideas to play.  As with any group, there are immigrants who are dangerous criminals who should be punished and deported, but the rate of criminality among immigrants, even unauthorized immigrants, is lower than that of the native-born American population.  If the goal is to reduce crime rates, we need to take a good look in the mirror before demonizing immigrants if we are serious about fighting crime.

It discriminates on the basis of religion, prioritizing Christian applicants over others.  Barring discrimination on the basis of religion is a founding tenet of America.  This Executive Order treats that tenet as disposable.  It is not, and our courts will be the proving ground for this.

On a more prosaic note, this Executive Order thrusts a mammoth amount of work on to the departments that handle immigration processes, piling the requirement of report upon report on top of an already full workload.  (Do not get me started on current immigration processing times).  Complying with these reporting requirements will derail the regular workload of these departments for an unknown amount of time.  And where is the money coming from for all this extra work?  Is Congress going to funnel our tax money to the compilation of these reports so that they get done by the unreasonable deadlines in the Executive Order?  Is this the best use of our taxes?  This is what President Trump chose to do as one of his first actions in office?

Let us not forget that President Trump has been busy in other ways, ways that have been roundly criticized by experienced and respected intelligence professionals.  But that is a different topic.

 

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Australia is successfully competing for skilled immigrants

Tuesday, March 22nd, 2016

Check out this Quartz article about how skilled immigrants are finding a friendlier welcome in countries like Australia and Canada, in part because of artificially low quotas for skilled workers (the H-1B category in particular) in the USA, and in part due to the hostility expressed to immigrants in general by our presidential candidates.

http://qz.com/638881/while-americans-feud-australia-is-stealing-away-immigrants-with-sought-after-skills/

 

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Posted in Comprehensive reform, Immigration policy | No Comments »

Ask An Immigration Attorney How A U Visa Can Help You

Monday, January 20th, 2014

U visas are a little known benefit for many unauthorized immigrants. It provides a route to U.S. lawful permanent resident status if you happen to be the victim of certain violent crimes, including crimes of domestic violence. If you want to seek asylum in Philadelphia, consult an immigration attorney for specifics on these types of claims.liberty bell philadelphia immigration lawyer

U visas are technically, most of the time, not visas at all. It is a lawful nonimmigrant status usually granted to individuals already present in the United States, rather than granted abroad with the issuance of an actual visa. This status is NOT permanent resident status, a.k.a. the green card. But it does grant you permission to remain in Philadelphia, or elsewhere in the United States, lawfully with permission to work, for up to three years. At the end of that three years, assuming you have not done anything unlawful in the meantime, you can adjust your status to that of permanent resident. For a more detailed listing of U eligibility criteria, USCIS provides this information. An immigration attorney can also help with determining eligibility.

This U nonimmigrant status is only granted to up to 10,000 unauthorized immigrants per year. The 2014 quota was actually reached in December 2013, according to the U.S. Citizenship and Immigration Services (“USCIS”), which is only about two and half months into the federal fiscal year, which begins on October 1st. This is because immigrant advocates are doing a better and better job of informing eligible immigrant victims of crime about this benefit and filing the application. Applications that do not make the cut-off in the year filed are held over until the quota re-opens in the next fiscal year. To ensure that your application process proceeds properly, you should work closely with an immigration attorney in Philadelphia.

The U nonimmigrant status was created to help immigrant victims of crime, especially victims of domestic violence, and to encourage such victims to come forth to report the crime and to cooperate in the investigation and prosecution of the crime. In addition to the victim reporting and helping to prosecute the crime, a law enforcement agency must sign off on a formal certification of the victim’s helpfulness. Without this law enforcement certification, the U visa application cannot move forth. It is thus an indispensable condition of eligibility, and in some cases, the bulk of the work in applying for U status is finding a law enforcement agency willing to sign off on the certification.

Help from an immigration attorney is necessary because not all law enforcement agencies are aware of what U nonimmigrant status is, or the policy considerations behind it. The personnel at such agencies may be wary of signing off on a form that they are not familiar with, in case it might come back later to bite them. Or, in some cases, the leadership or personnel at these law enforcement agencies are anti-immigrant and simply do not want to help unauthorized immigrants, even those who are victims of crimes and are willing to come forth. In the first instance, it is important to provide background information on why the U nonimmigrant status was enacted and to show that signing off on the certification does not have negative repercussions for the law enforcement agency. In the second, if one’s powers of persuasion do not work in changing an anti-immigrant attitude, then it is time to think creatively and look around for another law enforcement agency with jurisdiction over the crime.

A U visa is a valuable tool for victims of crime to use in obtaining a lawful status in the U.S. It creates a benefit from an awful situation where an immigrant was physically harmed or threatened with physical harm. If you know anyone who experienced this, or even certain relatives of U.S. citizen victims where it is the relative who seeks lawful immigration status, we can help evaluate whether a U visa application is viable. Contact an immigration attorney at Tran Law Associates in Philadelphia. Call us at (215) 690-1933 to discuss your specific situation.

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Consult Your Immigration Attorney For Motions To Reopen/Reconsider

Monday, December 30th, 2013

The law is a codification of what is right and fair. It may not seem that way sometimes, but that is what it is and should be.Philadelphia Immigration Attorney City Hall Image - Tran Law Associates

Part of being a lawyer is keeping sight of this basic truth. As an immigration attorney, I deal with U.S. government agencies on a daily basis. Sometimes my interactions with agencies are adversarial, such as when Immigration and Customs Enforcement is trying to deport my client because of lack of government permission to be present in this country, and I am trying to point out exceptions in the law that allow my client to stay and to become a lawful resident (or to prove that my client is already a citizen and therefore not deportable). Other times my interactions are cordial, in that I am applying for a benefit that my client qualifies for, and my job is to know what the qualifications for the benefit are (all of them) and to clearly demonstrate that my client possesses these qualifications. The government agency’s staffers’ job is to verify that my client does indeed qualify for the benefit sought and, once verified, approve that application in a timely manner. The benefit, after all, is one that the United States Congress has pronounced is a desirable result, such as family reunification or providing foreign workers for U.S. businesses that cannot otherwise find qualified U.S. workers.

Not infrequently, applicants for immigration benefits (especially those not represented by an immigration attorney) make mistakes in their forms or fail to submit all necessary documents, despite being as diligent as possible in following the instructions provided by U.S. Citizenship and Immigration Services (“USCIS”) or other U.S. immigration agencies. Even experienced immigration attorneys will occasionally make mistakes, being only human. And, sometimes (or a lot of times, depending on who you talk to) USCIS makes mistakes, being only run by humans. That’s when an I-290B Motion to Reopen or Motion to Reconsider comes in.

The I-290B Motion to Reopen and/or Reconsider codifies what should be common-sense fairness. When an applicant believes that USCIS has made a mistake there must be some way to communicate this to USCIS and hold USCIS accountable for its mistakes.

This is what happened in one of my change of status cases, where my client entered the country on a B1/B2 tourist visa to visit with family and sightsee, and then decided she wanted to continue her education here. Rather than going home and applying for an F-1 student visa she opted, as permitted by law, to apply for a change of nonimmigrant status. As her immigration attorney, I helped her navigate this change of status. We researched schools for her in Philadelphia, and she chose one that fit her budget and career goals. She applied for attendance and was accepted by the school, paid her first semester’s tuition fees, and was issued an I-20 by the school. She had to prove she had the financial means to pay her tuition fees and cover her living costs here in the United States, and a good friend of the family generously agreed to be her financial sponsor.

My client’s situation was one that was explicitly contemplated and approved of by immigration law, and it was just a matter of proving the relevant factors: nonimmigrant intent upon admission; acceptance at a SEVIS-approved school and issuance of an I-20; and financial ability to pay for school and living costs. We submitted her application for change of status along with all needed documents. USCIS received her application but somehow lost most of the accompanying documentation. In fact, USCIS informed me that although it had received my cover letter, which listed all enclosed documents, the documents themselves were not received.

Now, let me pause for a moment to reflect. USCIS was telling me that I had submitted a cover letter with no enclosed documents. For an experienced immigration attorney, that’s ridiculous. No lawyer would send just a cover letter and not include the 80+ pages of documents that the letter references. I can understand forgetting a particular document among several documents, especially in a voluminous submission, but to just send a cover letter – what experienced and reputable attorney, or what applicant for that matter, would do that!?

In this particular case, USCIS misplaced voluminous document submissions three separate times. In the same case. Can you image how infuriating it was for me to receive the second and third notice that USCIS had not received documents that I took such care to deliver to it — especially after being told that the first submission had documents that went missing? I could prove that I mailed a substantial packet of documents to USCIS in the matter, and I did so, sending along copies of the prior submissions to prove timely and complete submission of required information.

I notified USCIS of the fact that the relevant facts had been delivered, and I delivered copies. The application was then still denied for failure to submit required evidence. I wrote a strongly worded letter basically telling USCIS you can’t deny this application for losing documents I already submitted to you! I also complained to my bar association and asked for liaison assistance. The case was reopened by Service motion and then again denied, again citing failure to submit documents I had by this time submitted twice. It was like the Service never read my letter in which I had so carefully proven that my client had met all her obligations, and again delivered the relevant evidence. I wrote another strongly worded letter, sent another full copy of all prior submissions (several hundred pages by now), which got no response. I also filed an I-290B Motion to Reopen and/or Reconsider, the formal protocol for complaints (which carries a hefty filing fee). When no response was forthcoming within 90 days, however, I sought assistance from the USCIS Ombudsman’s office, reciting the litany of lost documents and resubmissions. They saw the error and the Motion was ultimately granted, and fairness in the case was preserved, although it took one and a half years rather than the two to three months it normally does for an application like this.

The moral of this story: don’t forget that the law should result in what is right and fair. Oh, and be a pain in the ass if that’s what’s needed to get things done.

The approval was sweet, but what would really be the icing on the cake is if USCIS refunds our filing fee. I am not holding my breath.

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Posted in Visas and consular issues | No Comments »

Lawyers for detained immigrants

Friday, August 9th, 2013

Immigration law is a strange beast.  Immigration is usually civil law, with the penalty for violations ultimately being deportation, that is, not being permitted to stay in this country.  While certain immigration violations are classified as criminal offenses, the majority of immigration laws fall into the civil arena.

In the world of immigration enforcement, “detention” (a value-neutral way of saying “imprisonment”) of immigrants is all-too-common and devastating to the individuals detained and their families.  It is a deprivation of liberty, a penalty that we reserve for our most serious criminals, and yet it is used routinely for alleged immigration violations.  I’ve said it before on this forum, but it bears repeating:  Immigrant detainees are caught in a Catch-22 because these individuals are treated as criminals but not given the rights of the criminally accused.  We should either treat immigrants accused of violating immigration laws as being accused of civil violations, with civil penalties and only civil protections and rights, or treat these immigrants as criminal defendants, with the concomitant protections of the criminally accused.  Straddling the middle of these categories – given only civil protections but faced with criminal penalties – exacts a high toll in human suffering (for the immigrant and the immigrant’s family) and economic resources, as we lose the value of that person’s contribution to the labor market and spending in our economy, and imprisoning unauthorized immigrants costs us about $2 billion a year.

Immigrant advocates have long pointed out this inequity, and now a new pilot program in New York City, funded by City Council, aims to ameliorate at least one aspect of this problem.  The New York Immigrant Family Unity Project is a one-year program aimed at providing pro bono counsel to detained New Yorkers.  Immigrants in deportation proceedings are told by judges that they have the right to counsel, but only at no cost to the government.  For low-income immigrants in proceedings this is a hollow right.  It is meaningless when one cannot afford to pay for competent counsel, and finding a good lawyer from prison… Well, try it yourself and see how far you get.

Like all sectors of the population, immigrants include good apples and bad apples.  For immigrants found to be dangerous to the community imprisonment is appropriate.  But for those accused only of non-criminal violations of immigration law, incarceration often unnecessarily rips apart families, prevents a parent from being able to look after and provide for U.S. citizen children, removes a needed employee from work, and costs about $164 a day (that’s $59,860 a year) to house and feed that individual on the federal dime.  Think of this just in terms of the cost of foster care for children left without a parent to look after them ($36,000 a year in New York City), and you start to get an idea of the real costs of unnecessarily jailing those accused of civil immigration violations.  Having a good lawyer in this situation often makes all the difference, according to the 2011 New York Immigrant Representation Study, which found that the percentage of detained immigrants who win their immigration cases without representation is 3%.  Having a lawyer, and being free from detention, can increase the chances of success to 74%.

The estimated cost of providing competent counsel for a detained immigrant is $3,000.  If this is the cost of proving that an immigrant should not be detained while defending against a deportation action then it will save the federal government about $60,000 a year per immigrant, and save in the costs of families having to rely on public support systems because a vital breadwinner is incarcerated.

I will keep an eye out to see how this pilot program fares.  It is a step in the right direction and I wish it the best.

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Posted in Enforcement / detention, Immigration policy, Uncategorized | No Comments »

Same-sex marriage cases post-Windsor

Thursday, August 1st, 2013

You may not have heard, but an important change in immigration law happened on June 26, 2013.  On this date, the U.S. Supreme Court handed down its decision in U.S. v. Windsor.  The Windsor case came up as a tax matter.  But Windsor isn’t just about taxes, although over $300,000 in federal estate taxes was at stake.  It was about the legal definition of marriage.  It was about whether a same-sex marriage can be treated differently than marriage between two people of the opposite sex.  Ultimately, the Supreme Court held that defining marriage as a union between a man and a woman violated the equal protection clause of the Fifth Amendment to the U.S. Constitution, and in doing so struck down Section 3 of the Defense of Marriage Act (“DOMA”).

This leaves the path clear for same-sex marriages to be (among many other things affected by federal law) the basis for immigration benefits, especially marriage-based immigrant visas and marriage-based adjustment of status applications.

The U.S. Citizenship and Immigration Services has, in an admirably prompt fashion, already gone on record as now accepting I-130 petitions from same-sex couples.  You can check out the guidance here.

The main thing you need to know if you want to file a petition for immigration benefits based on a same-sex marriage is that the marriage must be legally valid.  This means that the marriage must have been performed in a jurisdiction that allowed same-sex marriage at the time of the event.  This is sometimes referred to as the “place of celebration” rule.  It should not matter if you no longer live in that jurisdiction and currently live with your spouse in a place that does not legally permit same-sex marriage.

A legally valid marriage must be documented, whether by a certificate of marriage issued by a county government as is usually the case in the United States, or whatever is accepted as legal documentation of marriage in the place where it occurred.  For marriages abroad, a good place to check what documentation is considered legally sufficient are the websites for local U.S. embassies and consulates.  There is usually information for U.S. citizens interested in marrying in that foreign country, including what documents should be issued once the marriage is done.

So, for all those who thought they could not file for immigration benefits for their same-sex partners, the law has changed for the better!  If you need more help, advice, or representation in filing your application, contact Tran Law Associates about how to get your case started.

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Posted in DOMA & marriage, Family-based immigration, Immigration policy, Uncategorized | No Comments »

Post Script to Consular Nonreviewability

Sunday, July 7th, 2013

A few months ago, I wrote about a K-1 fiancé visa case of mine that was impossible to move forward and where repeated requests for information and clarity went nowhere.  (See The pitfalls of the K-1 fiance visa: Consular nonreviewability.)

A recent episode of National Public Radio’s This American Life illustrates this same frustrating experience perfectly.  The show put up a web page providing the email correspondence between an Iraqi interpreter for the U.S. government and the U.S. immigration office handling his case.  In the end, the applicant was killed before his employment with the U.S. government was verified to the (impossible standard of) satisfaction of the agency.  You have to read it to believe it:  This American Life – Taking Names.

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Posted in Asylum/refugees | No Comments »

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