Virginia business owners sentenced to 18 months for harboring illegal aliens, forfeit $1.2 million

The importance of employee verification and complying with I-9 requirements cannot be overemphasized. Targetting of employers by ICE is pervasive. In a News Release published on November 23, 2010, ICE reports sentencing two business owners to serve18 months in prison followed by two years probation and forfeit $1.2 million, for their roles in a scheme to hire and harbor illegal aliens. This sentencing follows an investigation led by U.S. Immigration and Customs Enforcement (ICE) Office of Homeland Security Investigation (HSI).

"ICE aggressively targets employers who violate immigration laws by knowingly employing an unlawful workforce," said John P. Torres, special agent in charge of the ICE HSI in Washington, D.C. "Companies which profit through a business model that incorporates unlawful workers will be held accountable."

Bao Ping Wang, 44, pleaded guilty to harboring illegal aliens and Trang "Tammy" Lu, 45 pled to misprision of a felony. Hi-Tech Trucking, Inc., a commercial trucking entity established by Wang and Lu for the delivery operations of SeaLands Food, another business operated by Wang and Lu for the distribution of seafood to Asian restaurants and markets throughout the mid-Atlantic region, was sentenced to three years probation for conspiring to harbor illegal aliens.

According to the court record, Hi-Tech Trucking, Inc. agreed to forfeit $1,225,428 in illegal proceeds gained as a result of the offense and to pay a $100,000 fine. In addition, Wang was also ordered to pay $4,000 and agreed to deportation from the United States after service of his sentence. Lu was ordered to pay $5,000 and agreed that she will comply with programs created by the Department of Homeland Security and Social Security Administration to screen all employees for determining workforce eligibility.

Wang and Lu both managed Hi-Tech Trucking, Inc., and SeaLands Food. From 2006 through 2009, Wang employed a workforce at these companies consisting of both legal and illegal aliens, with Lu's knowledge or reckless disregard of the fact that a number of their employees were illegally present in the country and illegally working without proper authorization. Federal investigators determined that Wang, with Lu's knowledge, harbored and employed between 6 to 24 illegal aliens at these companies at any point in time from 2006 through 2009. Wang and Lu provided housing and meals for the illegal alien employees at three residences that they owned in Richmond, Virginia. Bank records for Hi-Tech Trucking, Inc. accounts from 2006 through 2009 establish that withdrawals from these accounts were used for payments for rental properties for employees and utilities for the three residential properties at which employees were housed, as well as payments to employees, including illegal aliens.

Assisting ICE HSI in the investigation was the Internal Revenue Service-Criminal Investigation, and the Henrico Police Department.
Source: Reported in http://www.ice.gov/news/releases/1011/101123richmond.htm.

Child Abuse imputed from Child Neglect

In a recent Precedent decision decided on Nov 17, 2010, (In Matter of Dency Epen Soram, 25 I & N Dec. 378 (BIA 2010)) it was observed that the crime of unreasonably placing a child in a situation that poses a threat of injury to the child’s life or health in violation of section 18-6-401(1)(a) of the Colorado Revised Statutes is categorically a crime of child abuse under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2006), even though no proof of actual harm or injury to the child is required.

There are two very common laws relating to child safety in Texas which we should be wary of but are very commonly ignored-The laws relate to seat belt, and leaving children unattended in the car.

The Texas Department of Public Safety (DPS) notes that children less than 8 years old must be secured in an age-appropriate child passenger restraint system. If your child is 57 inches or taller, you may utilize an adult seat belt without a child car seat. Texas law also prohibits youth under 18 from riding in the open bed of pick-up or flat-bed truck. A person commits an offense if he intentionally or knowingly leaves a child in a motor vehicle for longer than five minutes, knowing that the child is:
1. younger than seven years of age; and
2. not attended by an individual in the vehicle who is 14 years of age or older. Leaving a child in a vehicle is punishable under the Texas Penal Code, Title 5, Chapter 22, Section 10 LEAVING A CHILD IN A VEHICLE.

Information on the Legal Rights Available to Immigrant Victims of Domestic Violence in the United States

On October 27, 2010, USCIS published a very informative fact sheet about rights available for Immigrant Victims of Domestic abuse. It details the fiancé(e)s and spouses immigration process and how to access help if their relationship becomes abusive. The fact sheet is stated verbatim below for your information.

Fact Sheet

Purpose

Immigrants are particularly vulnerable to domestic violence because they may not speak English, are often separated from family and friends, and may not understand the laws of the United States. For these reasons, immigrants are often afraid to report acts of domestic violence to the police or to seek other forms of assistance. Such fear causes many immigrants to remain in abusive relationships.This fact sheet will explain domestic violence and inform you of your legal rights in the United States. The International Marriage Broker Regulation Act (IMBRA) requires that the U.S. Government provide foreign fiancé(e)s and spouses immigrating to the United States with information about their legal rights as well as about the criminal or domestic violence histories of their U.S. citizen fiancé(e)s and spouses. One of IMBRA’s goals is to provide accurate information to immigrating fiancé(e)s and spouses about the immigration process and how to access help if their relationship becomes abusive.

Questions & Answers

PART I:Legal Rights and Resources Available to Immigrant Victims ofDomestic Violence and Other Crimes in the United States

1. What is domestic violence?

Domestic violence is a pattern of behavior when one intimate partner or spouse threatens or abuses the other partner. Domestic violence may include physical harm, forced sexual relations, psychological and emotional abuse, tactics of isolation (such as controlling who you talk to or where you go) or intimidation, economic abuse (such as withholding support) and/or immigration related abuse or threats (such as refusing to file applications to give you legal immigration status, or threatening to call immigration authorities to get you removed from the United States if you report abuse). Domestic violence often increases victims’ dependence on abusers, making it difficult for victims to leave. While most recorded incidents of domestic violence involve men abusing women or children, men can also be victims of domestic violence.
Domestic violence may include sexual assault, child abuse, and other violent crimes. Sexual assault is any type of sexual activity that you do not agree to, even with your spouse, and can be committed by anyone. It includes unwanted touching of your intimate parts as well as rape or attempted rape. Child abuse includes: physical abuse (any injury that does not happen by accident, including excessive punishment), physical neglect (failure to provide food, shelter, medical care or supervision), sexual abuse, and emotional abuse (threats, withholding love, support or guidance).
Under all circumstances, domestic violence, sexual assault, and child abuse are illegal in the United States. All people in the United States (regardless of race, color, religion, sex, age, ethnicity, national origin, or immigration status) are guaranteed protection from abuse under the law. Any victim ofdomestic violence – regardless of immigration or citizenship status – can seek help. An immigrant victim of domestic violence may also be eligible for immigration related protections.If you are experiencing domestic violence in your home, you are not alone.

This pamphlet is intended to help you understand U.S. laws and know how to get help if you need it.

2. What are the legal rights for victims of domestic violence in the United States?

All people in the United States, regardless of immigration or citizenship status, are guaranteed basic protections under both civil and criminal law. U.S. laws that apply to families give you:
~ The right to obtain a protection order for you and your child(ren).
~The right to legal separation or divorce without the consent of your spouse.
~The right to share certain marital property. In cases of divorce, the court will divide any property or financial assets you and your spouse have together.
~The right to ask for custody of your child(ren) and financial support. Parents of children under the age of 21 often are required to pay child support for any child not living with them.
Consult a family lawyer and an immigration lawyer who works with immigrant victims of domestic violence to understand how any of these family law options may affect or assist you.Under U.S. law any crime victim, regardless of immigration or citizenship status, can call the police for help or to obtain a protection order.
Call the police (dial “911”) if you or your child(ren) are in danger. The police officers may arrest your fiancé(e), spouse, partner, or another person if they believe that person has committed a crime. You should tell the police officers about any abuse that has happened, even in the past, and show any injuries. If the police officers do not speak your language, find a safe person to interpret for you, or to help you ask the police officers to get an interpreter. Anyone, regardless of immigration or citizenship status, may report a crime.
Likewise, if you are a victim of domestic violence you can apply to a court for a protection order. Through a protection order (also called a “restraining order”), the court can order your abuser not to call, contact, or hurt you, your child(ren), or other family members. If your abuser violates the protection order, you can call the police. Applications for protection orders are available at most courthouses, women’s shelters, and legal service offices, as well as at some police stations.
If your abuser accuses you of a crime, you have basic rights, regardless of your immigration or citizenship status, including: the right to talk to a lawyer (the government will appoint one for you if you cannot afford one); the right to not answer questions without a lawyer present; and the right to speak in your defense. It is very important to consult with both an immigration lawyer and a criminal lawyer to understand how a criminal plea or conviction could affect your immigration status.
Remember: a protection order does not guarantee your safety. In fact, taking action to end an abusive relationship can often lead to greater danger because it angers the abuser to lose control over the victim. To help improve your safety, you should work with a domestic violence specialist to prepare a “safety plan” that considers all possible escape routes from your home, identifies places you can go for help, and sets aside critical items you need to take with you (such as money, emergency contact information, and important documents, including immigration related documents).

3. What services are available to victims of domestic violence and sexual assault in the United States?

In the United States, victims of crime, regardless of immigration or citizenship status, can access help provided by government or non-governmental agencies, which may include counseling, interpreters, safety planning, emergency housing, and even monetary assistance.The “hotlines” listed below have operators trained to help victims 24 hours a day, 7 days a week. “Helplines” that operate during normal business hours can also assist victims. All use “toll-free” numbers (free of charge). Interpreters are available and these numbers can connect you with other free services for victims in your local area, including emergency housing, medical care, counseling, and legal assistance. If you cannot afford to pay a lawyer you may qualify for free or low-cost legal assistance for immigrant victims of domestic violence or other crimes.

Hotlines (available 24 hours a day, 7 days a week):

National Domestic Violence Hotline1-800-799-SAFE (1-800-799-7233)1-800-787-3224 (TTY)http://www.ndvh.org/
National Sexual Assault Hotline of the Rape, Abuse and Incest National Network (RAINN)1-800-656-HOPE (1-800-656-4673)http://www.rainn.org/
National Center for Missing and Exploited Children1-800-THE-LOST (1-800-843-5678)http://www.missingkids.com/
Helpline (available 8:30 am to 8:30 pm (Eastern Standard Time):The National Center for Victims of Crime1-800-FYI-CALL (1-800-394-2255)1-800-211-7996 (TTY)http://www.ncvc.org/
If you are in danger, do not call a hotline or helpline – dial “911” to reach your local police immediately.

4. What is human trafficking? What services are available to victims of human trafficking in the United States?

Human trafficking is also known as “modern-day slavery,” and is illegal in the United States. Human trafficking and other forms of exploitation can sometimes occur alongside domestic violence, when the exploitation involves compelled or coerced labor, services, or commercial sex acts. Victims can access many of the same free services described above. For help regarding human trafficking, contact the following toll-free hotline and complaint line (interpreters are available):
National Human Trafficking Resource Center1-888-373-7888(Available 24 hours a day, 7 days a week)
Trafficking in Persons and Worker Exploitation Task Force Complaint Line, U.S. Department of Justice1-888-428-7581(Available Monday through Friday, 9 am to 5 pm (Eastern Standard Time)

PART II:Facts about Immigrating on a Marriage-Based Visa andImmigration-Related Options for Immigrant Victims of Domestic Violence and Other Crimes

5. How does the marriage-based immigration process work?
The marriage-based immigration process involves several steps to obtain legal immigration status in the United States, and over time, to be eligible for citizenship. These steps depend on the type of marriage-based visa you travel on to the United States, as well as other factors. The following information is an overview of some of these types of visas, as well as information on your legal rights.
K-1 nonimmigrant status (as the fiancé(e) of a United States citizen): you are required to either marry the United States citizen who sponsored your visa within 90 days of entry or to depart the United States. Following your marriage to the U.S. citizen-sponsor, you must file an Application to Register Permanent Residence or Adjust Status (Form I-485). If your Form I-485 is approved, your status will be adjusted from a K nonimmigrant to that of a conditional permanent resident (a conditional “green card” holder). You will have that conditional status for two years.
If you remain in the U.S. without marrying the U.S. citizen who sponsored your K-1 visa, or marry someone else, you will violate the terms of your visa, have no legal status, and may be subject to removal proceedings or other penalties.
K-3 nonimmigrant status (as the spouse of a United States citizen): you are allowed to enter the United States temporarily while waiting for approval of a family-based visa petition (Form I-130). Once the Form I-130 is approved, you are entitled to lawful permanent residence (a “green card”) and will need to file an Application to Register Permanent Residence or Adjust Status (Form I-485).All other marriage-based immigration status holders should refer to the information given to them from the U.S. consulate. Additional information may be found online at http://www.uscis.gov/.

6. If I am married to a U.S. citizen who filed immigration papers on my behalf, what is my immigration status?
If you have been married less than 2 years when your Form I-485 is approved, you will receive a conditional permanent residence status or “green card” from USCIS. Ninety (90) days before the second anniversary of your conditional permanent residence, you and your spouse must apply together (Form I-751) to remove the conditions on your lawful permanent residence. To do so, you must prove the marriage is in “good faith” and valid. Once the conditions are removed, you have lawful permanent residency that is not dependent on your U.S. spouse.
If you have been married more than 2 years when your Form I-485 is approved, you will receive lawful permanent residence status from USCIS. On that date you will no longer be dependent on your U.S. citizen spouse for immigration status.
There are three situations when the law allows conditional permanent residents to request a waiver of the requirement that you and your spouse file jointly to request removal of the conditions:
~Your spouse died or the marriage was terminated due to divorce or annulment; OR
~The termination of your status and your removal from the U.S. would result in extreme hardship; OR
~During the marriage you were battered or subjected to extreme cruelty by your U.S. citizen or lawful permanent resident spouse.
All three waivers are also filed on Form I-751 and require you to prove your marriage was in “good faith” and not fraudulent.

7. If I am a victim of domestic violence, sexual assault, or other crimes, what immigration options are available to me?

Depending on the circumstances, there are several ways that immigrants who become victims of domestic violence, sexual assault, and some other specific crimes may apply for legal immigration status for themselves and their child(ren). A victim’s application is confidential and no one, including an abuser, crime perpetrator, or family member, will be told that you applied.

Self-Petitions under the Violence Against Women Act (VAWA) (Form I-360):
~For spouses and children of abusive U.S. citizen or lawful permanent residents who have subjected them to battery or extreme cruelty.
~Also available to parents of abusive U.S. citizen children (if children are over 21).
~Allows the victim to apply for legal permanent residency without the help or knowledge of the abuser.
~Battered Spouse Waivers under VAWA (Form I-751):
~For a conditional permanent resident who has been subjected to battery or extreme cruelty by a U.S. citizen or lawful permanent resident spouse.
Allows the victim to remove the conditions on permanent residence without the help or knowledge of the abusive U.S. citizen or lawful permanent resident spouse.
Cancellation of Removal under VAWA (requested in immigration court):
For spouses and children of abusive U.S. citizens who have subjected them to battery or extreme cruelty and who are in removal proceedings before an immigration judge.
Also available to the parent of a child or step-child who is abused by a U.S. citizen.
Among other requirements, victim must have been in the United States for longer than 3 years, and show that removal will cause the victim extreme hardship.
Allows the victim to request that the immigration judge cancel the removal proceedings and grant the victim lawful permanent residency.
U-nonimmigrant status (crime victims) (Form I-918)
For victims of certain serious crimes, including domestic violence, who have suffered substantial mental or physical abuse as a result of criminal activity in the United States. Requires victims to cooperate in the criminal investigation or prosecution.
Allows victims to receive a “U visa,” and, after 3 years, if they can prove humanitarian need, public interest, or family unity reasons, to apply for lawful permanent residency.
T-nonimmigrant status (victims of human trafficking) (Form I-914)
For victims who have been subjected to severe forms of sex or labor trafficking.
Requires victims to cooperate in the criminal investigation or prosecution.
Allows victims to receive a “T visa,” and, after 3 years, to apply for lawful permanent residency.
These immigration options each have further specific requirements that must be established. For more information and a flyer specifically on “Immigration Options for Victims of Crimes,” please visit the “Humanitarian” section of the USCIS website (http://www.uscis.gov/).
Consult an immigration lawyer who works with victims of domestic violence to discuss how any of these immigration options may affect or assist you.

8. In what other ways does the U.S. government try to inform foreign fiancé(e)s and spouses about their rights and protect them and their children from abuse?
As mentioned above, the International Marriage Broker Regulation Act of 2005 (IMBRA) is a law in the United States that changed the marriage-based immigration process to help foreign fiancé(e)s and spouses. IMBRA responded to concerns that some U.S. citizen-sponsors of foreign fiancé(e) and spouse visas have a history of domestic violence, sexual assault, child abuse, or other crimes of which their foreign fiancé(e) or spouse is unaware. IMBRA mandates that the U.S. Government give immigrating foreign fiancé(e)s and spouses information and self-help tools to help protect them against violence from the partners who sponsor their visas. Immigrating fiancé(e)s and spouses are often unfamiliar with the U.S. laws and unsupported by family or friends who could help them escape violence at home.IMBRA required this pamphlet be written and distributed to tell you about laws and services that can help you in the United States if you are abused. IMBRA prevents U.S. citizens from simultaneously sponsoring visas for multiple foreign fiancé(e)s, and places overall limits on how many times (twice) and how often (2 years apart) U.S. citizens may sponsor such visas. A U.S. citizen may seek a waiver of these limits. However, a waiver will ordinarily not be granted if the U.S. citizen has a history of violent crimes. IMBRA requires the U.S. government to give foreign fiancé(e)s and spouses of U.S. citizens a copy of the criminal background check that USCIS does on U.S. citizen-sponsors, as well as a copy of the visa sponsorship application.

9. How does the U.S. government regulate “International Marriage Brokers”?

If an agency offering dating or matchmaking services qualifies as an “international marriage broker,” it is prohibited from doing business with you if you are under 18 years of age. The international marriage broker is required to give you certain marital and criminal background information on the U.S. client who wants to contact you, including information contained in federal and state sex offender public registries, and get your written permission before giving the U.S. client your contact information. The international marriage broker is also required to give you a copy of this pamphlet.

10. Can I rely on the criminal background information on my U.S. citizen fiancé(e) or spouse?

The criminal background information compiled by the international marriage broker is self-disclosed by the U.S. client, or comes from various public sources. The criminal background information compiled by USCIS is also self-disclosed by the U.S. citizen-sponsor on immigration applications, or comes from a limited set of government databases. USCIS does not have access to all criminal history databases in the United States. The U.S. client or citizen-sponsor may not tell the truth to the international marriage broker or on the sponsorship application. It is also possible the U.S. client or citizen-sponsor has a history of abusive behavior but was never arrested or convicted.Therefore, the criminal background information you receive, either from the international marriage broker or from USCIS, may not be complete. The intent of IMBRA is to provide available information and resources to foreign nationals using international marriage brokers and to immigrating fiancé(s) and spouses. Ultimately, you are responsible for deciding whether you feel safe in the relationship.

11. What are the penalties for marriage fraud?

Immigrants cannot receive immigration benefits (such as legal status) if they knowingly enter into a marriage for the purpose of evading immigration law or solely for an immigration benefit. Conviction for marriage fraud can involve imprisonment for up to five (5) years and fines up to $250,000 (U.S. currency). Immigrants who commit marriage fraud may be removed from the United States and may be permanently barred from the United States.

GREEN CARD LOTTERY

Every year in order to have a better diversity of immigrants; United States issues Diversity Visa Lottery (DVs), popularly known by “Green Card lottery”. The application period began on Tuesday October 5, 2010 and will end at noon on Wednesday, November 3, 2010. All entries are submitted electronically. Applicants must submit their applications at www.dvlottery.state.gov. Paper entries are no longer accepted. Applicants can submit their forms themselves or they have a representative, such as a lawyer, submit the application on their behalf. The applicants are randomly selected through the computer based lottery system. Section 203(c) of the INA provides a maximum of 55,000 Diversity Visas (DVs) each fiscal year to be made available to persons from countries with low rates of immigration to the United States. The visas are distributed among six geographic regions, with a greater number of visas going to regions with lower rates of immigration, and with no visas going to nationals of countries sending more than 50,000 immigrants to the United States over the period of the past five years. For fiscal year 2012, 50,000 DVs will be available.

Procedure:
Eligible Applicants may access the electronic DV Entry Form (E-DV) at www.dvlottery.state.gov during the registration period which ends on noon on Nov 3, 2010. Paper entries will not be accepted. Individuals applying may be in United States or in a foreign country. There is no government application fee for submitting a lottery application. Only one entry must be submitted. A husband and a wife may each submit one entry if each meets the eligibility requirements. If either is selected, the other is entitled to derivative status. Status information for DV-2012 will be available online from May 1, 2011, until June 30, 2012. Persons selected in the DV-2012 lottery are entitled to apply for visa issuance only during fiscal year 2012, from October 1, 2011, through September 30, 2012. The death of an individual selected in the lottery results in automatic revocation and derivatives are no longer entitled to visa.

Countries which are NOT eligible to apply for Diversity Visa Lottery:
-Brazil -Canada -China - mainland China (nationals of Hong Kong, Macau and Taiwan ARE included) -Colombia -Dominican Republic -Ecuador -El Salvador -Guatemala -Haiti -India -Jamaica -Mexico -Pakistan -Philippines -Poland -Peru -South Korea -United Kingdom (natives of Northern Ireland and Hong Kong are eligible, but natives of Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcairn, St. Helena, and the Turks and Calicos Islands are not eligible) -Vietnam

Eligibility/Requirements:
i. Native of Eligible Country & ;
ii. Educational Qualifications: You must have either a high school education or its equivalent, defined as successful completion of a 12-year course of elementary and secondary education; OR two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform. The U.S. Department of Labor’s O*Net OnLine database will be used to determine qualifying work experience. The Department of Labor (DOL) O*Net Online database groups job experience into five "job zones". While many occupations are listed on the DOL website, only certain specified occupations qualify for the Diversity Visa Program. To qualify for a Diversity Visa on the basis of your work experience, you must, within the past five years, have two years of experience in an occupation that is designated as Job Zone 4 or 5, classified in a Specific Vocational Preparation (SVP) range of 7.0 or higher. The O*Net Online Database can be accessed at -http://online.onetcenter.org/

Information Needed: Personal Data & Photograph
Data Needed:
1. FULL NAME – Last/Family Name, First Name, Middle name;
2. DATE OF BIRTH – Day, Month, Year;
3. GENDER – Male or Female;
4. CITY WHERE YOU WERE BORN;
5. COUNTRY WHERE YOU WERE BORN – The name of the country should be that which is currently in use for the place where you were born;
6. COUNTRY OF ELIGIBILITY OR CHARGEABILITY FOR THE DV PROGRAM – Your country of eligibility will normally be the same as your country of birth. Your country of eligibility is not related to where you live. If you were born in a country that is not eligible for the DV program, please review the instructions to see if there is another option for country chargeability available for you.
7. ENTRY PHOTOGRAPH(S) – See the technical information on photograph specifications below
8. MAILING ADDRESS – In Care Of, Address Line 1, Address Line 2, City/Town, District/Country/Province/State, Postal Code/Zip Code, and Country
9. COUNTRY WHERE YOU LIVE TODAY
10. PHONE NUMBER (optional)
11. E-MAIL ADDRESS – provide an e-mail address to which you have direct access. You will NOT receive an official selection letter at this address. However, if your entry is selected and you respond to the notification of your selection through the Entry Status Check, you will receive follow-up communication from the Kentucky Consular Center (KCC) by e-mail notifying you that details of your immigrant visa interview are available on Entry Status Check.
12. WHAT IS THE HIGHEST LEVEL OF EDUCATION YOU HAVE ACHIEVED, AS OF TODAY? You must indicate which one of the following represents your own highest level of educational achievement: (1) Primary school only, (2) High school, no degree, (3) High school degree, (4) Vocational school, (5) Some university courses, (6) University degree, (7) Some graduate level courses, (8) Master degree, (9) Some doctorate level courses, and (10) Doctorate degree
13. MARITAL STATUS – Unmarried, Married, Divorced, Widowed, or Legally Separated
14. NUMBER OF CHILDREN – Entries MUST include the name, date, and place of birth of your spouse and all natural children. Entries must also include all children legally adopted by you, and stepchildren who are unmarried and under the age of 21 on the date of your electronic entry, even if you are no longer legally married to the child’s parent, and even if the spouse or child does not currently reside with you and/or will not immigrate with you. Note that married children and children 21 years or older are not eligible for the DV; however, U.S. law protects children from “aging out” in certain circumstances. If your electronic DV entry is made before your unmarried child turns 21, and the child turns 21 before visa issuance, he/she may be protected from aging out by the Child Status Protection Act and be treated as though he/she were under 21 for visa-processing purposes. Failure to list all children who are eligible will result in disqualification of the principal applicant and refusal of all visas in the case at the time of the visa interview.
15. SPOUSE INFORMATION – Name, Date of Birth, Gender, City/Town of Birth, Country of Birth, and Photograph. Failure to list your eligible spouse will result in disqualification of the principal applicant and refusal of all visas in the case at the time of the visa interview. You must list your spouse here even if you plan to be divorced before you apply for a visa.
16. CHILDREN INFORMATION – Name, Date of Birth, Gender, City/Town of Birth, Country of Birth, and Photograph.

Photograph:
It is very important that all required photographs be submitted. Your entry will be disqualified if all required photographs are not submitted. Recent photographs of the following people must be submitted electronically with the E-DV entry form: a. You, b. Your spouse, c. Each unmarried child under 21 years of age at the time of your electronic entry, including all natural children as well as all legally adopted children and stepchildren, even if a child no longer resides with you or you do not intend for a child to immigrate under the DV program.
If the submitted digital images do not conform to the following specifications, the system will automatically reject the Entry Form and notify the sender.

• The image must be in the Joint Photographic Experts Group (JPEG) format.

• The image must be in color; monochrome images (2-bit color depth), black and white, and grayscale will not be accepted.

• If a new digital photograph is taken, it must have a resolution of 600 pixels high by 600 pixels wide, and a color depth of 24-bit color. Pictures will not be accepted in monochrome or grayscale. • If a photographic print is scanned, the print must be 2 inches by 2 inches (50mm x 50mm) square. It must be scanned at a resolution of 300 dots per inch (dpi) and with a color depth of 24-bit color.

• The maximum image size accepted will be 240 kilobytes (240KB).If the submitted digital images do not conform to the following specifications, the entry will be disqualified.

• Applicant, spouse, or child must be directly facing the camera; the head of the person being photographed should not be tilted up, down or to the side, and should cover about 50% of the area of the photo.

• The photo should be taken with the person being photographed in front of a neutral, light-colored background. Photos taken with very dark or patterned, busy backgrounds will not be accepted.

• Photos in which the face of the person being photographed is not in focus will not be accepted. • Photos in which the person being photographed is wearing sunglasses or other paraphernalia which detracts from the face will not be accepted.

• Photos of applicants wearing head coverings or hats are only acceptable due to religious beliefs, and even then, may not obscure any portion of the face of the applicant. Photos of applicants with tribal or other headgear not specifically religious in nature are not acceptable. Photos of military, airline or other personnel wearing hats will not be accepted.

If you meet the criteria you should take advantage of this program. You are encouraged to apply early and not wait till Nov 3 deadline. If you need more information on Green card lottery, please contact Ashima at 713.595.6657 or email at: ashima@ashimachocklaw.com.

Globalization: Not a Clinical Trial!

In today’s digital world, the physical borders are only intangible reality. While each country has its own ways of protecting their people, the protectionism must be carefully calculated and focused.

In India, a recently published article (Article published in Times of India, Oct 3, 2010) reported that around 3800 engineers joined State Bank of India for the clerical positions. In India there is a substantial overflow of engineers. While in USA, due to extreme shortage, engineering is one of the hardest Jobs to fill according to the article[1] published by Forbes. When asked by Forbes, why are engineers so hard to find in United States? "We have whole generations of people loving liberal arts, not going into science and math," says Larry Jacobson, executive director of the National Society of Professional Engineers. The revrese holds for India, where most parent aspire their child to become an engineer or a doctor resulting in highest priority given to science and maths. In this era of digitalization and globalization, there are better ways of bridging these disparities. The key for both contries-the country with surplus and the one with shortage lies in accronym-“ROT”-Right Optimum Training. In our case, for India by providing right optimum training catering to firms demands oversees, rotting of talent can be avoided. While in the case of US, by taking extra efforts and relaxing and encouraging immigration in those sectors, immidiate shortage and needs can be fullfiled while contuing its efforts to encouage students to focus on Math and science. While it may be easier said than done, but if don’t take an effort now it may lead to movement and shifting of operations resulting in further unemployment.
[1] The hardest Jobs to fill in America, Tara Weiss, Forbes.com

U visa- beyond immigration status-Visa for victims of crime

I recently (August 2010) received an approval of an immigrant petition for a spouse of U visa holder in around five months. I had also helped in securing green card for the principal applicant. My client has consented to share his facts and case, so I will discuss briefly the facts for a better understanding and appreciation of U visa. My client was shot while working at gas station. He helped the law enforcement agencies in the investigation and persecution of the people who committed robbery or attempted to commit robbery. Initially he received an interim U visa, and later U visa. After four years on interim relief we filed for his green card which he obtained in less than six months. In between he got married and we also filed an immigrant petition for his spouse, which was also approved in less than six months.

The U visa Category
U nonimmigrant visa was created with the passage of the Victims of Trafficking and Violence Protection Act (including the Battered Immigrant Women’s Protection Act) in October 2000. The legislation was intended to strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, trafficking of alien s and other crimes violating laws of United States while, at the same time, offer protection to victims of such crimes[1] who may by be here illegally and hesitant to report but for this protection.

Petition for U Non-immigrant Status:
The petition[2] for such status can be filed either inside or outside the United States. USCIS may grant no more than 10,000 U-1 nonimmigrant visas in any given fiscal year (October 1 through September 30). This does not apply to derivative family members such as spouses, children or other qualifying family members [3]who are accompanying or following to join the principal foreign national victim.
If not admissible to enter the United States as a foreign national, an applicant for a U visa must obtain a waiver of inadmissibility through submission of a Form I-192, Application for Advance Permission to Enter as a Non-Immigrant. This waiver is adjudicated by the Vermont Service Center of USCIS on a discretionary basis, allowing the petitioner to continue with the U nonimmigrant visa process.
Application Process for U-1 Non-Immigrant Visa:
-Form I-918, Supplement A;
-I-918, Petition for U Nonimmigrant Status;
-I-918 Supplement A, Petition for Qualifying Family Member of U--1 Recipient;
-I-918 Supplement B, U Nonimmigrant Status Certification;
-Police Report;
-Statement of Victim;
-Documents relating to the criminal activity;
-Documents related to the impact of criminal activity on the victim.

Duration
U nonimmigrant status cannot exceed four years. However, extensions are available upon certification by a certifying agency that the foreign national's presence in the United States is required to assist in the investigation or prosecution of the qualifying criminal activity. And after three years on U visa principal applicant can file for a green card ceteris peribus. The qualifying family members of a U-1 nonimmigrant are also eligible for green card.

Impact of Removal proceedings[4]
Petitioners in pending immigration proceedings. An alien who is in removal proceedings under section 240 of the Act, 8 U.S.C. 1229a, or in exclusion or deportation proceedings initiated under former sections 236 or 242 of the Act, 8 U.S.C. 1226 and 1252 (as in effect prior to April 1, 1997), and who would like to apply for U nonimmigrant status must file a Form I-918 directly with USCIS. U.S. Immigration and Customs Enforcement (ICE) counsel may agree, as a matter of discretion, to file, at the request of the alien petitioner, a joint motion to terminate proceedings without prejudice with the immigration judge or Board of Immigration Appeals, whichever is appropriate, while a petition for U nonimmigrant status is being adjudicated by USCIS.
Petitioners with final orders of removal, deportation, or exclusion. An alien who is the subject of a final order of removal, deportation, or exclusion is not precluded from filing a petition for U-1 nonimmigrant status directly with USCIS. The filing of a petition for U-1 nonimmigrant status has no effect on ICE's authority to execute a final order, although the alien may file a request for a stay of removal pursuant to 8 CFR 241.6(a) and 8 CFR 1241.6(a). If the alien is in detention pending execution of the final order, the time during which a stay is in effect will extend the period of detention (under the standards of 8 CFR 241.4) reasonably necessary to bring about the petitioner's removal.

Application Process For Green card through U visa
A person admitted and physically present on U visa for three years can apply for adjustment of status to a green card holder. There is no numerical cap on U visa adjustment applications. The person should not have refused assistance to law enforcement agencies in the persecution or investigation. The principal applicant should petition on Form I-485, along with fees and supporting documentation. Immigrant petition can be filed for family member who have held U non immigrant status before. The family member who has never held U non-immigrant status has to be petitioned on Form I-929. An applicant has the burden of showing that favorable discretion should be exercised in his or her favor and hardship must be shown.


[1] Qualifying Crimes – INA §101(a)(15)(U)(iii)
[2] U Visa Requirements – § 101(a)(15)(U)
[3] Qualifying family member means, in the case of an alien victim 21 years of age or older who is eligible for U nonimmigrant status as described in section 101(a)(15)(U) of the Act, 8 U.S.C. 1101(a)(15)(U), the spouse or child(ren) of such alien; and, in the case of an alien victim under the age of 21 who is eligible for U nonimmigrant status as described in section 101(a)(15)(U) of the Act, qualifying family member means the spouse, child(ren), parents, or unmarried siblings under the age of 18 of such an alien.
[4] 8 CFR 214.14

H-1B and L-1 Fee Increase

On Aug. 13, 2010, President Obama signed into law Public Law 111-230, which contains provisions to increase certain H-1B and L-1 petition fees. Effective immediately, Public Law 111-230 requires the submission of an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after Aug. 14, 2010, and will remain in effect through Sept. 30, 2014.
These additional fees apply to petitioners who employ 50 or more employees in the United States with more than 50 percent of its employees in the United States in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status. Petitioners meeting these criteria must submit the fee with an H-1B or L-1 petition filed:
Initially to grant an alien nonimmigrant status described in subparagraph (H)(i)(b) or (L) of section 101(a)(15), or
To obtain authorization for an alien having such status to change employers.
USCIS is in the process of revising the Petition for a Nonimmigrant Worker (Form I-129), and instructions to comply with Public Law 111-230. To facilitate implementation of Public Law 111-230, USCIS recommends that all H-1B, L-1A and L-1B petitioners, as part of the filing packet, include the new fee or a statement of other evidence outlining why this new fee does not apply. USCIS requests that petitioners include a notation of whether the fee is required in bold capital letters at the top of the cover letter. Where USCIS does not receive such explanation and/or documentation with the initial filing, it may issue a Request for Evidence (RFE) to determine whether the petition is covered by the public law. An RFE may be required even if such evidence is submitted, if questions remain.
The additional fee, if applicable, is in addition to the base processing fee, the existing Fraud Prevention and Detection Fee, and any applicable American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee, needed to file a petition for a Nonimmigrant Worker (Form I-129), as well as any premium processing fees, if applicable.
Source: USCIS

Back Wages for H-1B workers

In August 17, 2010 news release, US Labor Department reported obtaining nearly $1 million in back wages and interest for 135 H-1B workers of Smartsoft International. A Wage and Hour Division investigator determined that some employees were not paid any wages at the beginning of their employment, were paid on a part-time basis despite being hired under a full-time employment agreement, and were paid less than the prevailing wage applicable to the geographic locations where they performed their work.
The company contested the Wage and Hour Division's conclusions and requested a formal hearing with the Labor Department's Office of Administrative Law Judges. As part of this agreement, the company will drop any further challenge.
The H-1B program allows employers to hire nonimmigrant workers in specialty occupations. The law establishes certain standards in order to protect similarly employed U.S. workers from being adversely affected by the employment of the nonimmigrant workers, as well as to protect the H-1B nonimmigrant workers. Employers must attest to the Labor Department that they will pay wages to the H-1B nonimmigrant workers that are at least equal to the actual wages paid to other workers with similar experience and qualifications for the job in question, or the prevailing wage for the occupation in the area of intended employment, whichever is greater.
Source: U.S. Department of Labor

Don’t be Victim Twice

The National Law Journal recently reported a decision from 6th circuit reviving a woman's asylum case after concluding that bad lawyering by failing to appeal in time may have cost her a shot at living in the United States to avoid feared persecution in Iraq or the United Arab Emirates.
I time and again get cases wounded by bad lawyering. But often the cost and extra effort can be avoided by being vigilant and mindful of the process. While I don’t expect you to know the law, don’t be afraid to ask questions and always ask any applicable deadlines. While the 6th circuit in this case did not find her lacking due diligence others are not so lucky.

Questions and Answers

Q: Applying to become US citizen, with a expunged shoplifing arrest (NOLLE PROSEQUI). seeking advices: I asked this last time, here is some additional info: ( I am graduating college this yr and trying to apply a government job) i am a green card holder, applying to become a citizen, i was caught taking a shirt(<$100) from my workstore 2 yrs ago, CITED and the state's attorney dismissed the case before the trial when i agreed to work 60 hrs of volunteer service. all records were expunged after that. regret it very much, wish i have never done that and i am not going to do again. here are the questions 1.do all theft considered a CMT? in mycase is it acceptable to USCIS? 2. should I apply right now? or should I wait? 3. i asked a law school buddy, he told me there's "petty offense exception"? 4. if apply, how can i get a Certificate of Disposition after all my records were expunge

Posted about 1 month ago in Immigration


A: Ashima's answer: You may have entered a guilty plea that was dismissed but that may still be a conviction for immigration purposes. Your friend is right about the petty offence exception. You should be okay but be truthful in your naturalization application as even expunged records can be used for assessing good moral character. A person convicted of a petty offence will not be barred from a finding of good moral character unless sentenced to a term of imprisonment in excess of 6 months. Laryes v. U.S. 300 F Supp 2d 404 (E.D.VA 2004). Regarding obtaining certificate of disposition, contact the Court. If they cannot provide you may want to provide USCIS the documents you may have indicating that the case was dismissed and expunged.