Texas Immigration Lawyer & Attorney : Kraft & Associates Law Firm : Visas, Green Card, Citizenship, Deportation : Dallas, Texas

This is the first-ever movie review in this blog, and probably the last, but a new movie got such a good review today in the Dallas Morning News that I wanted to mention it.

Under The Same Moon is directed by Patricia Riggen. Here are excerpts from the Dallas Morning News article:

Anti-immigration talk bubbles to the surface in election years and burbles from the mouth of Lou Dobbs seemingly every minute. It's been a rallying cry from the days of the 19th-century Know Nothing movement to today's skirmishes in Farmers Branch. But for those on the outside, the talk often lacks a human dimension. And that's where movies enter the picture.

Patricia Riggen, Guadalajara-born and Columbia University-educated, hopes her Under the Same Moon, which opens today at the Magnolia and Plano Angelika theaters, can be one of those movies.

On one level, it's the most basic and universal of stories: A child, separated from his mother, embarks on an epic journey to find her. "I want to remind people that it's about the human condition and the separation of loved ones," Ms. Riggen said recently in a Dallas hotel conference room.

But the dividing line of this particular separation is the U.S.-Mexican border. Rosario (Kate del Castillo) has journeyed to Los Angeles to make a living as a domestic. Her young son, Carlitos (Adrian Alonso), remains back home in Mexico with his grandmother – until she dies and the kid decides he needs his mom.

Finding mom. It's an impulse so basic that it makes talk of "illegals" sound like a dry policy debate.

"All of the conversations and controversy are always focused on the economic or political side of immigration and not on the human family side of it," Ms. Riggen says. "That's what I wanted to look at. I didn't want to do a political film. I just wanted to show the human side of this story that we hear every day."

She leaves the obvious unstated: It's harder to hate people once you've walked in their shoes. Even when you walk sitting down in a dark theater.

Movies that put children in jeopardy have to be handled in a delicate manner. There needs to be enough danger for the audience to become invested in the story. Too much danger, and the movie becomes manipulative or even exploitative.

Ms. Riggen's film could have been a forum for a political debate about immigration laws. There are a few mentions, but never enough to distract from the movie's central message: what we will do for love.

For Rosario, it is the willingness to be away from her only son to be able to give him a better standard of living. She shows a real strength when a simple solution to her problem presents itself. But the script by Ligiah Villalobos takes that plotline in a refreshing direction.

It would be easy to dismiss Under the Same Moon as being of interest only for those who understand or care about immigration issues. But the heart of the film is a story of how love can make people move mountains. And that is a universal theme.
In Spanish with English subtitles.

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The Immigration and Nationality Act of 1952, as amended (INA), stipulates that physicians who have entered the United States to undertake a J-1 graduate medical training or education program are uniformly subject to the obligation to return to their home country or country of last residence for a period of two years. INA §212(e). J-1 visa holders are eligible for waiver of the two-year home residence requirement based upon exceptional hardship to a U.S. citizen or permanent resident spouse or child. INA §212(e). There are three other bases for filing a waiver to the two-year foreign residency requirement, but this discussion will be on the exceptional hardship waiver.

In determining a hardship waiver, exceptional hardship must be shown with respect to the U.S. citizen spouse or child in the event they remain in the United States and the foreign spouse returns to the home country. The applicant must also show hardship if the spouse or child accompany the foreign national abroad for two years.

Factors considered to form the basis of exceptional hardship include where the U.S. citizen spouse would be required to interrupt a professional career, suffer unemployment and separation of family.The country conditions to which the exchange visitor and the U.S. citizen or resident spouse would return must also be considered, particularly where they are shown to impact psychological and physical health. Other factors are considered to form the basis of a finding of exceptional hardship as well.

For example, where it is shown that the citizen spouse would suffer adverse consequences to their medical studies by the departure of their J-1 spouse, and that their career would be set back if he or she were either to interrupt their education or attempt to continue their studies in the spouse's country. Similarly, the threat of disruption of the education of an exchange visitor's spouse would constitute sufficient hardship to justify granting the waiver. In evaluating a claim of exceptional hardship, evidence of the disruption of the career or of the education of the U.S. citizen or resident spouse will be considered, along with other relevant factors mentioned above.

To learn more about waivers to the two-year foreign residency requirement, please call us at 214-999-9999.

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Foreign nationals who do not have a valid immigrant visa and wish to travel multiple times outside the United States will need permission to re-enter the United States. An individual who filed an adjustment of status (AOS) application will need a travel document (advance parole) to re-enter the United States. If the AOS application is pending, the foreign national should submit form I-131 Travel Document Application prior to departure. Otherwise, if the foreign national leaves the United States while the AOS application is pending, the application will be deemed abandoned and the AOS application will eventually be denied.

Be aware travelers, in order to avoid the termination of a pending AOS application, it is imperative to apply for Advance Parole prior to leaving the United States. An advance parole is approved within 90 days and is valid for multiple trips throughout one year. Of course, once the foreign national receives his or her green card, an advance parole is no longer needed.

Please note there are certain foreign nationals who may not apply for advance parole. An advance parole document is not available for individuals in the United States illegally, under removal proceedings, or who are exchange foreign nationals subject to the residency requirement.

Please contact us to learn more about Advance Parole and the information needed to apply for an Advance Parole.

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Foreign nationals may obtain their green cards by marriage through a U.S. citizen or lawful permanent resident (LPR). If the marriage is less than two years old at the time residence is granted, the foreign national will receive conditional permanent resident status. Conditional residents and their spouses are required to remove those conditions two years after residency is granted by filing a Petition to Remove Conditions on Form I-751.

The most pressing question is whether divorce during the specified period affects the Petition to Remove Conditions. If the marriage falls apart during that two year window, it will be necessary to file for a waiver of the requirement that both spouses sign the petition.

However, the conditional resident requesting a waiver will have to show the marriage was entered into in good faith. In order to show the Immigration Service that the marriage was entered in good faith, the alien should provide documents such as birth certificates of the children, documents showing that the financial assets and liabilities were combined, and documents showing the length of time the parties lived together.

If you have questions regarding how to file a waiver of the requirement to file I-751 jointly, please call us.

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Generally, a lawful permanent resident (LPR) must have continuous residence in the United States for five years (or 3 years if married to a U.S. citizen) in order to be eligible for citizenship. Continuous residence in the United States does not mean that an LPR cannot leave the country for the entire five years (or three years if married to a USC) in order to qualify for citizenship. On the contrary, LPR's can travel freely without the hassle of obtaining a visa from the United States Citizenship and Immigration Service. However, LPR's must make sure they do not face the problem of abandoning the continuous physical presence requirement.

An LPR may be deemed to have disrupted the "continuous residence" requirement if the LPR travels out of the United States a few times a year, or if an LPR is outside of the country for over six months. If an LPR continuously maintains a residence in the United States but is physically outside of the United States for over a year, the Department of Homeland Security (DHS) may decide that the continuous residence has been abandoned. If an LPR has not properly maintained the continuous physical residence requirement, and the DHS determines that an LPR has abandoned his or her residency, DHS can refuse an LPR back into the United States.

Attention all frequent-flyer residents: Make sure your trips abroad are for short periods of time. Please note that the continuous physical residence requirement is one requirement that must be satisfied to qualify for citizenship. There are other requirements that must be met in order to establish citizenship eligibility. Please contact us if you would like to begin your citizenship process.

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If a foreign national is married less than two years to a U.S. Citizen, the alien spouse may be granted conditional permanent resident status in the United States from the time residency is granted. Is there a difference between permanent residence and conditional permanent residence? No. Conditional permanent residents have the same rights, privileges and obligations as permanent residents. The only difference is that conditional permanent residents must file a petition to remove their conditions a year and nine months from the time their residencies are granted.

Alien spouses currently in conditional resident status must not forget to remove their conditions on Form I-751 Petition to Remove Conditions. Such petition should be accompanied with evidence that the alien spouse and U.S. Citizen spouse continue to reside together and have a valid marriage. Supporting documents include utility bills bearing both names, apartment leases showing joint tenancy, joint accounts, and birth certificates of children. The petition to remove the conditions must be filed one year and nine months from the date the alien spouse was granted conditional permanent resident status. Failure to file the petition removing the conditions may result in the termination of the alien spouse's permanent resident status and removal proceedings may be initiated.

If the spouses are divorced before the second anniversary of the date the alien spouse was granted conditional permanent resident status, and the parties cannot file Form I-751 jointly, waivers are available. The alien spouse may be granted the waiver by showing proof that the marriage was entered in good faith, and it would result in extreme hardship if the alien were deported. So if an alien spouse has been granted conditional permanent residence, don't forget to remove your conditions!

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At Kraft & Associates, we recently had an inquiry from a soldier who had just returned from Iraq. He had promised his Iraqi translator that he would try to help the translator gain entry into the United States.

We had to tell this good-hearted military man that the United States has been embarrassingly slow to admit any Iraqi citizens into our country, including those who risked their lives by helping our military. This year alone, Switzerland has accepted thousands of Iraqi refugees, while the United States has accepted only a few hundred, almost all of those in the past two months.

However, there may be something that can be done for these people. Depending on the exact situations and the eligibilities, they may be able to enter the U.S. as Special Immigrants. Translators for the U.S. Armed Forces may be eligible to enter the United States, and are protected under the National Defense Authorization Act.  To benefit from this act they must demonstrate the following:

• National of Iraq or Afghanistan;
• worked directly with U.S. Armed Forces as a translator for a period of at least 12 months;
• obtained a favorable written recommendation from a general or flag officer in the chain of command;
• cleared a background check and screening as determined by the general or flag officer before filing the petition; and
• they are otherwise admissible except for 212(a)(4) (public charge)

They must file their petitions on form I-360.  The biggest hurdle to overcome is that there are only 50 visas available per year. Spouse and children may accompany or follow to join if the principal applicant is approved.

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According to a story in the New York Times today, "A new federal rule intended to keep illegal immigrants from receiving Medicaid has instead shut out tens of thousands of United States citizens who have had difficulty complying with requirements to show birth certificates and other documents proving their citizenship, state officials say." Other excerpts from the story:

Under a 2006 federal law, the Deficit Reduction Act, most people who say they are United States citizens and want Medicaid must provide "satisfactory documentary evidence of citizenship," which could include a passport or the combination of a birth certificate and a driver's license.

Some state officials say the Bush administration went beyond the law in some ways, for example, by requiring people to submit original documents or copies certified by the issuing agency.

The numbers alone do not prove that the decline in enrollment was caused by the new federal policy. But state officials see a cause-and-effect relationship. They say the decline began soon after they started enforcing the new rule. Moreover, they say, they have not seen a decline in enrollment among people who are exempt from the documentation requirement -- for example, people who have qualified for Medicare and are also eligible for Medicaid.

Medicaid officials across the country report that some pregnant women are going without prenatal care and some parents are postponing checkups for their children while they hunt down birth certificates and other documents.

The principal authors of the 2006 law were Representatives Charlie Norwood and Nathan Deal, both Georgia Republicans. Mr. Norwood died last month.

Chris Riley, the chief of staff for Mr. Deal, said the new requirement did encounter "some bumps in the road" last year. But, he said, Mr. Deal believes that the requirement "has saved taxpayers money." The congressman "will vigorously fight repeal of that provision" and will, in fact, try to extend it to the Children's Health Insurance Program, Mr. Riley said. He added that the rule could be applied flexibly so it did not cause hardship for citizens.

In general, Medicaid is available only to United States citizens and certain "qualified aliens." Until 2006, states had some discretion in deciding how to verify citizenship. Applicants had to declare in writing, under penalty of perjury, whether they were citizens. Most states required documents, like birth certificates, only if other evidence suggested that a person was falsely claiming to be a United States citizen.

In Virginia, health insurance for children has been a top priority for state officials, and the number of children on Medicaid increased steadily for several years. But since July, the number has declined by 13,300, to 373,800, according to Cindi B. Jones, chief deputy director of the Virginia Medicaid program.

"The federal rule closed the door on our ability to enroll people over the telephone and the Internet, wiping out a full year of progress in covering kids," Ms. Jones said.

State and local agencies have adopted new procedures to handle and copy valuable documents. J. Ruth Kennedy, deputy director of the Medicaid program in Louisiana, said her agency had received hundreds of original driver's licenses and passports in the mail.

Barry E. Nangle, the state registrar of vital statistics in Utah, said, "The new federal requirement has created a big demand for birth certificates by a group of people who are not exactly well placed to pay our fees." States typically charge $10 to $30 for a certificate.

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In July 2002, President George W. Bush signed an executive order specifying that foreign nationals who serve in the United States armed forces during a period of hostility would be eligible for expedited U.S. citizenship. The period of hostility began on September 11, 2001, and ends on a date that has yet to be specified by the President.

According to the White House, this executive order has allowed non-citizens to immediately become U.S. citizens. So far, more than 13,000 foreign-born members of the armed forces have applied for U.S. citizenship since the order took effect.

For those foreign nationals who are stationed overseas, the Immigration Services now allows naturalization ceremonies to be held at U.S. military bases, embassies, and consulates around the world. This makes it easier for the foreign-born military personnel to obtain their citizenship quickly.

Under current immigration laws, non-citizens must serve in the U.S. military for at least one year before they are eligible to apply for citizenship. This new executive order, however, will remove the three year service requirement. Additionally, the filing fees associated with an application for naturalization will be waived for those meeting the above-mentioned requirements.

A survey released in May 2006 indicated that there are more than 68,000 foreign-born serving in the armed forces, and this represents approximately 5% of the total on active duty.

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On September 30, 2001, a Palestinian family, the Ibrahims, entered the U.S. on tourist and business visas. They were unable to return home, however, since that would require traveling through Israel and Jordan. This was impossible since their temporary Jordanian passports had expired and Israel does not allow Palestinians to return home through that country.

Unable to return home, the Ibrahims applied for asylum, but their case was denied. A deportation order was issued for them to return home. Once again, this was impossible for the Ibrahim family. The family members were then classified as "stateless," which implies that they have no country to be deported to.

Three months ago, however, the family was arrested during a raid at their Richardson apartment by immigration enforcement officers. The arrest came over two years after the family's request for asylum was denied. The family, which includes Salaheddin Ibrahim, his wife and four children, are now being held in a detention facility in Taylor, Texas. Mr. Ibrahim's wife is also five months pregnant.

Much attention has been drawn to this case since four children, who range from the ages of five to fifteen, are also being detained. Lawyers who are working to help the Ibrahims, have taken action in federal district court so that the family may be released.

The lawyers representing the Ibrahim family contend that there is no justification for the detention of the family or the young children. The petition seeking their release notes that the children have been traumatized by being held in a jail like setting and are being deprived of education. The lawyers also argue that there is no basis for detention since the family does not pose a flight risk or a danger to the community.

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Introduction

For non-citizens, the immigration consequences of a criminal conviction may be far greater than any punishment of jail time, probation or a fine. For those non-citizens who are convicted of crimes, particularly those given state or federal prison sentences, Immigration Services will most likely begin proceedings to deport them from the United States. In many cases deportation will result regardless of the length of time in the United States, family ties in the United States, or even the severity of the crime committed.

Based on a criminal conviction, a client might be subject to deportation, and in some cases be permanently barred from the United States. In other cases, criminal conduct may preclude a finding of good moral character under the Immigration and Nationality Act, which is a requirement for naturalization.

In other situations, the immigration consequences of criminal activity can include delays in obtaining visas to the U.S. and denial of immigration benefits while in the United States.

To complicate matters, the Immigration and Nationality Act has developed its own definition for what constitutes a "conviction." For example, the definition of "conviction" includes a guilty plea or deferred adjudication. This ambiguity in the definition of conviction has led to attorneys erroneously advising their clients to accept deferred adjudication believing that this would not constitute a conviction under immigration law.


Deportation Issues

An alien with a criminal record may be barred from admission to the United States. In general, among others, crimes of moral turpitude, drug offenses, multiple offenses, and engaging in prostitution or procuring prostitutes within the past ten years will be considered as criminal grounds and can make the alien subject to being barred from future legal admission to the United States.

Additionally, most drug offenses under the U.S. immigration laws may result in deportation from the United States, depending on the type of controlled substance involved. This includes violations of any law or regulation relating to a controlled substance, no matter whether the law is federal, state or foreign. These laws cover persons with a past conviction or admission of committing offenses. They may also include any person that a USCIS officer knows, or has reason to believe, is a drug trafficker.


Naturalization Issues

When applying for citizenship, it is necessary to show that the applicant has been a person of "good moral character" for the past five years. If there was any criminal conviction during this period, however, it is possible that the naturalization application will be denied.

Additionally, if a criminal conviction is brought to light while applying for naturalization, a person may be placed in removal proceedings. There is a wide variety of acts (some that do not even need to result in a criminal conviction) that will result in a person's application for naturalization being denied.

For more information about immigration news, immigration laws, immigration policies, proposed immigration laws, border enforcement, green cards, citizenship, employment visas, family visas, naturalization, and other immigration subjects, please visit Immigration Law Answers and DFW Immigration Law Blog.

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Professor Aristide Zolberg wrote an article, published this summer at Migration Information Source, and titled Rethinking the Last 200 Years of US Immigration Policy.

The article is an excellent review of our immigration policies dating back to the Colonial Period. I recommend reading the entire article, but will excerpt the concluding paragraphs here.

Although the 1965 law imposed limits on immigration from the Western Hemisphere, it was evident from the start that the United States did not possess the police capacity to prevent undocumented movement across its southern border. In addition, the creation of such a capacity would have required radical actions, notably the enlistment of private employers nationwide in immigration law enforcement.

Arguably, the 1986 Immigration Reform and Control Act (IRCA) did require employers to enforce immigration law by mandating that they hire only workers who could prove their legal status. This was the price liberals had to pay for securing their primary goal: the legalization of several million unauthorized residents, most of whom were from Mexico.

The employer verification component was essentially abandoned after IRCA passed, with unauthorized immigrants able to submit forged documents that employers accepted. Several attempts were made in the 1990s to devise effective strategies for controlling entry through the southern border, but none of those enacted to-date have succeeded in stopping unauthorized immigration; the matter remains on the national agenda.

While the principal political alignment remains that of the vocal cultural conservatives, who object to the changing character of American identity, against employers eager to insure a continued supply of cheap unskilled labor, the balance seems to be leaning toward maintenance of the messy but relatively liberal status quo. This is because, beginning in the 1970s, some unions changed their position on immigration once they realized that immigrants, legal and unauthorized, provided the most fertile source of replenishment for their depleting ranks, initially in the garment industry and subsequently in a variety of service occupations.

Moreover, Hispanics -- currently the target of most restrictive efforts -- are rapidly achieving significant political power and are therefore being courted in an unprecedented manner by both parties. Therefore, the "strange bedfellows" are likely to remain at center stage for the predictable future.

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