Immigration Visa Attorney Blog

Immigration law clients of Fong & Chun have been calling us at both our Los Angeles and Palm Springs offices to inquire whether they can travel in and out of the USA using documents scanned onto their iPads, iPhones, and other smart devices.

In the first week of January, articles appeared on NBC, ABCNews, and DigitalJournal, and other sites about a Canadian man who was attempting to cross the land border to deliver Christmas gifts to family and friends in Vermont, USA. He had apparently forgotten his passport at his home in Montréal, Québec. When he got to the US Port of Entry (POE), so goes the story, he pulled out his iPad and showed the border guard his scanned Canadian Passport. (The man carries scanned documents, in case he should lose his documents while traveling.) According to the story, the border guard considered the matter and finally let the man cross the border.

It would be nice to think that border crossing cards, passports, visas, and other paperwork can now be scanned and put on our smart devices in lieu of carrying them. Nothing could be further from the truth.

Right on the heels of these articles, United States Customs and Border Protection (CBP) issued a statement that scanned documents are NOT permitted for purposes of POE entry. This CBP statement was carried by Yahoo!News, The Globe and Mail (Canada), Straits Times (Singapore), The Telegraph (UK), among others.

The CBP says that it used the man's secure Canadian driver license and birth certificate.
No foreigner may enter the USA without being able adequately to verify his/her identity. Apparently, the Canadian man had in his possession a secure Canadian driver license and an official copy of his birth certificate. These allowed the border guard to verify ID, and the man was allowed to enter.

The take-away lesson here is NOT that you should scan all your immigration papers in order to use them at a port-of-entry.

The lesson here is: Do not believe everything you read on the internet about what can or cannot be done. Even if this Canadian fellow "got away" with using his iPad-scanned documents, it is NEVER a good idea to depend on the tender mercies of US border guards. Questions about entry and exit issues? Contact a good immigration attorney. --jcf

The US Government recently announced that NSEERS registration is no longer necessary. Like many other immigration law firms, Fong & Chun of Los Angeles has numerous clients from countries in which Islam is the predominant religion. The National Security Entry-Exit Registration System (NSEERS) was implemented in 2001. NSEERS required the citizens of certain Islamic countries who are visiting the USA to undergo special treatment and registration upon entry to and exit from the USA. Many Fong & Chun clients in Beverly Hills, Hollywood, Palm Springs, and Las Vegas were especially impacted by NSEERS.

Persons born in or citizens of Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, the United Arab Emirates, and Yemen were all subject to NSEERS arrival-departure control.

Implemented in the wake of the attacks of 9/11/2001, the NSEERS program was designed to record the arrival, stay, and departure of certain individuals from countries chosen based on an analysis of perceived national security threats. Because the US Department of Homeland Security (DHS) has now implemented automated systems that capture arrival and departure information for persons of all nationalities -- that includes citizens of the Land of the Free and Home of the Brave (Americans) -- the NSEERS registration is no longer required.

Quoting DHS, "the underlying NSEERS regulations will remain in place in the event a special registration program is again needed." --jcf

Recently, I toured the Federal Inspections area at Los Angeles International Airport (LAX). As an attorney affiliated with the immigration law firm of Fong & Chun in Los Angeles, I routinely get questions from clients about "what happens to me when I land after my international flight? What will the procedures be like for me?"

Although my visit was to LAX, it is fair to say that the same immigration procedures and data bases are in place at all international airports in the Southern California region: Orange County, San Diego, Ontario, Palm Springs, and other international airports nationwide.

Every day, thousands of people pass through the Tom Bradley International Terminal and the other international arrival terminals at LAX. After deplaning and waiting in the seemingly interminable queues, most passengers will only see one immigration officer. Then they will collect their luggage and see a customs officer. And then, they will go up a ramp where they are greeted by a smiling photo of Los Angeles Mayor Antonio Villaraigosa welcoming them to the United States.

I also talked to officers in an office in the corner of the terminal which handles "Admissibility Review," also commonly known as "secondary inspection." Because of the volume of international passengers that LAX handles, the primary inspection officer only has a few minutes -- probably less than 5 -- to determine whether to permit an individual to enter into the United States. Instead of tying up an officer's station, questionable individuals will continue the process at the secondary inspection area.

Maybe there is an error on a visa. Or perhaps the name on the passport doesn't match the visa. Or sometimes, an individual doesn't realize that his or her green card expired during the trip abroad. According to Customs and Border Protection officials, most individuals -- upwards of 90% -- who are sent to secondary inspections are permitted eventually to enter the United States after CBP has asked a number of follow-up questions.

A word of caution about criminal convictions: the records of older criminal convictions have now been computerized and are now available to CBP inspectors. This includes criminal convictions in the 50 US states, as well as many countries which have made their criminal records available to the Department of Homeland Security.

In particular, if you are a lawful permanent resident who was convicted of a crime at some time in the past, your past ability to travel in and out of the United States was not because the government had forgotten about the conviction or forgiven you. It was because the CPB didn't previously know about the conviction. In 2010, the Department of Homeland Security initiated removal proceedings based upon one of our client's convictions that occurred in 1995.

The best way to avoid being escorted to secondary would be to steer clear of the following actions:

-- misrepresentations about your identity
-- using fraudulent travel documents
-- using a passport that does not belong to you
-- using a passport that has been manipulated or tweaked
-- using a visa that is fraudulent
-- traveling when you have an outstanding warrant for your arrest
-- a LPR returning to the United States after being convicted of certain criminal offenses
-- a LPR returning to the United States who may have indicia of abandoning his or her permanent resident status

You should consult with experienced counsel before you seek to enter or re-enter the United States. Doing so may help you prevent any surprises in the immigration inspection area. --ra

Los Angeles-based immigration attorneys at Fong & Chun have received a recent string of consultations from the Palm Springs and Inland Empire area involving the immigration consequences of drug convictions.

One individual is a Lawful Permanent Resident (LPR) who was convicted in 2000 for possession of drug paraphernalia. The conviction did not come to the government's attention until the gentleman returned from a vacation abroad and he re-entered the United States. The Department of Homeland Security ("DHS") has placed him into removal proceedings, charging that he had been convicted of a controlled substance offense.

Another man recently walked in with a Notice to Appear in which the DHS alleged that he entered the United States in 1965. "That's wonderful!", I thought, "I've got one of the few people in America that is eligible for registry." My excitement waned when I discovered that the man had a conviction for possession of drugs in the 1980s.

The Immigration and Nationality Act does contain a "petty offense exception" which waives the consequences of a minor crime if the sentence of imprisonment did not exceed six months and the conviction carries a maximum sentence of one year or less. Unfortunately, neither of the above individuals can avail themselves of the exemption because it does not apply to drug convictions, no matter how minor.

There are other avenues of relief in the immigration court that we have been pursuing to help these two individuals. But the moral of the story is: if you are not a U.S. citizen, stay away from illegal drugs -- probably good practice for U.S. citizens too. However, if you do have an old conviction on your record, you should consult with an immigration attorney before you leave the United States or before you file for any benefits from the U.S. Citizenship & Immigration Services. --ra

Immigration lawyers at Los Angeles' Fong & Chun, llp have learned that, in view of the massive earthquake and tsunami in Japan and the related devastation, clean-up, possible radiation concerns, US Immigration and Customs Enforcement (ICE) has temporarily suspended removal of Japanese citizens who may have been ordered deported.

It is expected that ICE will be deporting Japanese nationals again, as soon as conditions in Japan stabilize. Should you have questions about this, or any other immigration or nationality law concern, please do not hesitate to contact us. --jcf

The immigration lawyers at Fong & Chun in Los Angeles have many, many Japanese clients. In response to the devastation caused by the earthquake around Sendai, Japan yesterday, the US Citizenship and Immigraiton Services (USCIS) issued an advisory to Japanese nationals and others who cannot return to their home countries due to earthquake and tsunami disruption in the Pacific region. This is of particular importance to those who are here on visitor visas (B-1 or B-2), visa waiver, or other non-immigrant visas such as H-1B, L-1A, L-1B, E-1, E-2, F-1, J-1, M-1, etc.

From time to time, the US government permits citizens from certain countries to remain in the USA -- even after their visas or landing permits have expired -- due to emergency circumstances in the home country. This special designation -- which is called Temporary Protected Status (TPS) -- is made by the US government. At the present time, Japan has not yet been designated a TPS-eligible country by the US government.

However, the USCIS advisory, issued at 5:35pm today advises that people should visit their local USCIS office if they have overstayed their I-94s or will become an overstay because they cannot now return to their homes in the Pacific. In certain cases, the USCIS may allow for an additional 30 days be granted in order to depart without facing unlawful presence or other serious immigration violation. USCIS will likely control such applications with high scrutiny and enforcement. We do not recommend that Japanese citizens go to USCIS to obtain assistance without first consulting an immigration attorney.

Call the immigration attorneys at Fong & Chun, LLP. We are in the Hollywood area of Los Angeles. We can help you with this process. If needed, we can provide legal representation if you are facing overstay issues, unlawful presence, or other potential violations such as unauthorized employment because of the devastation in Japan and the Pacific. --ecf

Japan: an 8.9 earthquake has rocked Japan today, marking the most powerful earthquake in Japan's recorded history. This quake is the fifth most powerful in the world since 1900, says the U.S. Geologic Survey. Tokyo reports massive aftershocks. Narita Airport, Sendai Airport remain closed, although Haneda Airport has reopened already. The immigration attorneys at Fong & Chun, LLP who practice in business immigration, family-based immigration, removal defense and appellate work extend sympathy and concern to all our Japanese clients and those with family and friends abroad who are affected by this devastating disaster.

Over the years, the immigration attorneys at Fong & Chun, LLP have worked proudly in the Japanese immigrant community, having represented multinational executives and managers for some of Japan's largest corporations, professors providing invaluable research and teaching in top U.S. universities, professional employees working in companies based in Little Tokyo and in Japanese American non-profit organizations, and of course, countless individuals and families of Japanese descent.

With early reports of the death toll, the true damage the earthquake has caused remains unknown at this moment. We do know that this earthquake may cause tsunamis powerful enough to engulf or wash over small islands in the Pacific causing more damage and posing continued danger to those in the Pacific. For clients wishing to return to Japan in the weeks to come, please call the attorneys at Fong & Chun, LLP for guidance on how to check the US Department of State for travel warnings and other restrictions. ---ecf

The most important initial concern for any visitor to the USA is being able to enter the USA. At Fong & Chun, our immigration law clients want to be able to clear customs and immigration -- here in Los Angeles, or at any other port of entry -- as quickly as possible; our job as immigration lawyers is to help them do so.

US Customs and Border Protection (CBP) has started a test program, running until about 19 March 2011, at the US border crossing at El Paso/Ysleta, permitting use of a "Ready Lane" by those who have certain approved documents. The documents must be approved Radio Frequency Identification (RFID) technology-enabled travel cards, documents, and passports. Only those with RFID-compliant documents may use the dedicated "Ready Lane."

To use the "Ready Lane," each passenger over age 16 in the vehicle must have an approved RFID-enabled document, such as a US passport card, the new Border Crossing Card, the new green Permanent Resident card, and other approved documents. Then:

* Stop at the entry to the inspection lane; wait for the signal to move forward;
* Each passenger must remove and "hold up" the RFID document, with the flat face toward the window on the driver's side of the vehicle; at this point, each RFID card will be "read" by the CBP scanner; proceed to the inspection booth; and
* Stop at the inspection booth and be ready to show the documents of ALL TRAVELERS to the CBP officer at the booth.

CBP says that this program will reduce the wait time to cross the border. If the pilot program is successful, it may be replicated at other US land borders. --jcf

As an immigration law firm, Fong & Chun in Los Angeles receives questions about "what does immigration know about me" or "what does the computer at the airport show."

As a matter of national security, this information is not officially made available; however, a recent discussion with a client has provided a few clues. A young, female client was entering the USA at an international airport, and the officers saw entries in the computer, and they knew:

* all of her entries to and exits from the USA,
* that she was a dual-citizen of a country in Europe and a country in South America,
* that she had used the South American passport before, and asked why she was using the European passport now,
* that she had a visa in the South American passport, and why she is not using that visa now,
* that the last time she came to America, she had a return ticket that she did not use, and why didn't she use it, and
* that when she was a student in America five years ago, she had a California driver license.

Immigration fraud is a serious matter, and the border guards have significant information about many people who enter the USA. --jcf

Just last night, Majority Leader Reid (D-NV) filed a new version of the DREAM Act in an effort to get the 60 required votes to pass the Senate where a vote may occur as early as Monday.

This new version of the DREAM Act includes the following provisions:

• Excludes from eligibility those with certain criminal convictions, such as for offenses punishable by a maximum term of more than 1 year (felony) or 3 misdemeanors
• Requires all applicants to provide their biometric data to DHS, to submit to background checks and medical examination, and to register for military selective service
• Requires applicants to pay all taxes
• Sets the cut-off age to those who are less than 30 years-old on the date of enactment
• Provides a "safe harbor" from removal only to those applicants who present a prima facie case of eligibility
• Extends the good moral character requirement back to the date the alien entered the United States rather than the date of enactment of DREAM
• Expands the applicable grounds of inadmissibility to include the health-related, public charge, smuggling, draft dodging, and unlawful voting grounds
• Expands the applicable grounds of deportability to include public charge, unlawful voting, and marriage fraud grounds
• Excludes those who participated in persecution
• Clarifies that no one can apply before 1 year after enactment
• Requires applicants to demonstrate eligibility by a preponderance of the evidence
• Eliminates repeal of the in-state tuition ban
• Defines institution of higher education to include only U.S.-based programs
• Requires those who subsequently apply for adjustment to meet the English language and civics requirements typically required for naturalization
• Expands the circumstances where disclosure of confidential information about DREAM applicants is required for homeland security or national security purposes
• Creates conditional nonimmigrant status for 10 years, followed by 3 years of LPR status prior to application for naturalization

The attorneys at Fong & Chun urge you to to show support for the DREAM Act by calling your member of Congress today. ---ecf

Elin Nordegren broke her silence today and gave her side of the story today telling the world how shocked and embarrassed she was by Tiger's infidelity. She also defended the marriage, saying that the marriage was real, not orchestrated for the cameras and sponsors.

In our practice at Fong & Chun, LLP, we have seen many marriages, like Elin and Tiger's which were entered into for love, completely genuine marriages and yet within years (sometimes a lot sooner), the marriage goes awry. For those immigrants whose conditional greencards were based on marriages to US citizens, these men and women find themselves in a situation like Elin, telling their stories to the USCIS, actually defending themselves from deportation, that even though their marriage didn't survive the test of time, it was not a marriage of convenience for immigration purposes.

If a marriage fails anytime before someone naturalizes, a person who immigrated through marriage will later be summoned by the USCIS for an intense and very uncomfortable interview in order to maintain their permanent residency - even at the time of applying for citizenship. Such interviews can even occur years after the marriage and divorce, so recounting the facts of a relationship and providing the documentation to verify the facts of the courtship, the wedding or civil ceremony, then detailing the timeline of marriage, separation and divorce is more than just burdensome, it's sometimes impossible. Attorneys at Fong & Chun have defended clients in such interviews, which can take several hours! Not to mention the legal briefing and the administrative review that can take months to years in the most complicated cases.

We have counseled couples and immigrants who face this difficult situation, sometimes their marriages have ended because they had to escape physical or emotional abuse, other times, the marriage failed because of infidelity or even financial distress. If you need help telling your side of the story to USCIS, call the attorneys at Fong & Chun, LLP for a free consultation. Maybe we can help. --ecf

Although the controversial Arizona immigration law will still go into effect tomorrow, portions of the law have been blocked by the Federal District Court Judge Susan Bolton. Judge Bolton has issued a preliminary injunction to "put on hold" the proposed part of the law that would require Arizona law enforcement to determine whether a person is here in the country legally or not. Mistaken arrests of US citizens have already been made since the law's proposal.

The Court ruled in favor of the preliminary injunction primarily on federal preemption grounds, as our nation's immigration law is a matter of federal jurisdiction. This means that immigration law is governed and enforced by the federal government, not by individual states in the union. It is expected that Arizona will appeal, allowing the Ninth Circuit to review the issue as the nation's debate over immigration continues to roar. --ecf

The attorneys at Fong & Chun, LLP are often asked whether using a re-entry permit "guarantees" re-entry to the US after a prolonged absence. A lot of people seem to think that there is some guarantee that using the re-entry permit will ensure their safe return to the US. In most cases, this is true, but it's important to remember that the Customs and Border Protection (CBP) can and now will often still interrogate returning permanent residents about their reasons for leaving the US for long periods of time, most especially, those trips outside the US that are more than 6 months.

Using a re-entry permit allows a permanent resident to ask for re-entry to the US, but it only ensures that the CBP cannot use the length of absence as the only reason for denying entry. If CBP finds that a person holding a re-entry permit may have been employed abroad, or took up formal residence abroad, CBP can refer an individual for removal proceedings or deferred inspection when CBP will conduct a more formal interview of the applicant for re-admission. This will give you, the applicant a chance to rebut any allegation that you have abandoned your US permanent residency. If you are facing an abandonment interview with CBP, you will have one chance to show that you are eligible to keep your status. Contact the attorneys at Fong & Chun, LLP if you would like a free consultation regarding your case. ---ecf

The US Department of Homeland Security (DHS) has said that it will start phasing out use of the I-94W Arrival-Departure Card. Immigration lawyers at Fong & Chun have been practicing law a very long time, and the I-94 is a venerable old immigration law fixture. It appears that DHS has decided to attune to the times, automating the gathering and review of biographic information about persons entering on the Visa Waiver program.

The Visa Waiver program allows nationals of certain countries to enter the USA without a visa, provided the entry is for touristic or non-employment business reasons. In the past, Visa Waiver entrants had to fill out the green I-94W card and present that card to a border guard at the Port of Entry (POE). Over a period of time, DHS will phase out the use of the I-94W, and a Visa Waiver entrant will simply show a passport at the POE, be photographed and fingerprinted, and then the passport will be franked (stamped). This new arrangement is similar to the pre-arrival gathering of information used by Australia's "electronic visa" system. --jcf

"What's the difference between my visa and the I-94 landing card?"
"If my visitor visa is good for five years, why can't I stay in the USA for five years?"

The immigration lawyers at Fong & Chun in Los Angeles get this type of question all the time. Let's see if we can't explain this.

This is basically what a US visa looks like. It has the bearer's photo, date of birth, nationality, passport number, and validity dates. It also has various codes that tell the border guard what kind of entry is needed, how many entries will be permitted, and so forth. The most important thing is this: a visa give the bearer the right -- during the validity period of the visa -- to approach the US border and request to be admitted in the category noted on the visa (student, diplomat, investor).

The visa does NOT guarantee admission. The visa does NOT dictate how long of a stay the border guard may grant to you. The visa does not even guarantee in which category (visitor, student, worker, company transferee, investor) the bearer will ultimately be admitted. None of this is dictated or guaranteed by the visa itself. The visa is permission to approach the border.

I-94.pdfThis is the I-94 Arrival-Departure Control Card. All aliens (except US legal permanet residents) are required to fill out the I-94 on the airplane prior to landing at the port of entry (POE). At the POE, the alien presents the I-94 together with passport and visa to the border guard. In most cases -- unless the border guard thinks you're not who you say you are, or that you've previously violated US immigration law, or that you are not qualified to be in the visa category listed on your visa -- the border guard will swipe your passport and visa into the computer, take your picture and fingerprint, and admit you to the USA in the category appropriate to your visa (E-1 trader, F-1 student, H-1b worker, L-1 company transferee, etc.).

At the POE, the border guard will stamp the passport, stamp the I-94, and endorse the I-94 for the visa category (B-2, F-1, H-4), and write in the expiration date of the authorized stay in the USA. The alien must either exit the USA or seek an appropriate extension of stay (EOS) or change of status (COS) prior to this expiration date.

The length of stay granted by the border guard is a function of (a) established policy, and (b) the whim of the officer. Most officers will grant the "normal" amount of time established for the type of visa. B visaholders typically get 6 months. E visaholders typically get two years -- regardless of when their visa expires. H visaholders are typically granted until the expiration of the underlying I-129 petition.

The date written or stamped onto the I-94 governs the alien's length of stay in the USA -- not the visa itself. --jcf