Immigration Visa Attorney Blog

Over many years, the immigration Law Offices of J Craig Fong has counseled many immigrants who have come to the USA without passport or visa, or who have come legally but overstayed. In many of these case, it has not been possible to process the paperwork for an immigrant visa (the green card) without first having the immigrant depart the USA to go back to the US Embassy in the home country for an interview. In some cases, this means that the immigrant must file an I-601 Waiver of Ground of Inadmissibility at the US Embassy and wait months for a decision. And if the I-601 is denied, the immigrant cannot be reunited with family in the USA for 3 or 10 years!

For this reason, many green-card eligible applicants are afraid to leave the USA for their interview; they are afraid that if their I-601 waiver is denied, they will not be able to return to their families for 10 years. The risk of NOT being granted the waiver is too great, so they have avoided legalizing altogether.

Until now.

In early January 2013, Department of Homeland Security Secretary Janet Napolitano announced a new procedure. This new procedure -- called the I-601A Provisional Waiver -- still requires the immigrant-applicant to apply for the waiver, to seek a pardon for coming to the USA without papers, or for overstaying. However, this request for a waiver can now be filed before departure from the USA and before going to the interview at the American Embassy. In this way, the immigrant-applicant will know provisionally whether they will be able to return quickly after their Embassy interview or not -- before leaving the USA.

This I-601A procedure is only available to Immediate Relatives of a US Citizen: immigrants who are the spouse, parent, or minor child of an American Citizen. This procedure is not available if you fall into another family-based or employment-based category for immigration.

US Citizenship and Immigration Services will be announcing more information about how this process will work in the next few weeks. Cases can be filed beginning in March 2013.

If you believe you might qualify to process the I-601A illegal presence waiver using the new procedures inside the USA, contact me at 323.769.8187. --jcf

At our offices in Los Angeles and in Palm Springs, the immigration attorneys at the Law Offices of J Craig Fong have been receiving hundreds of phone calls about the President's recently-announced initiative to provide Deferred Action to certain undocumented young people, providing them with work permits (Employment Authorization Documents - EAD).

On 15 June 2012, President Obama announced that he was directing US Citizenship and Immigration Services (USCIS) to provide EADs to undocumented young people who meet certain qualifications. A successful applicant must show that s/he:
* arrived in the USA before age 16;
* has resided in the USA since 15 June 2007;
* is currently in school, has graduated from high school, has obtained a general education development certificate, or is honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
* has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; and
* is not over the age of thirty.

It is not yet possible to submit an application for this Deferred Action EAD. We expect to have details and how and where to apply sometime before 15 August 2012.

Until then, what can a potential applicant do to get ready?
1. Get a certified copy of your birth certificate.
2. If you arrived in the USA with a passport, visa, or border crossing card, be sure to keep this document safe -- it will demonstrate when you arrived in the USA.
3. If you did not arrive in the USA with a passport or other travel document, then try to look for documents that show you were in the USA as of 15 June 2007. Such documents might include: school records, medical records, dental records, baptismal or other church records, and photos.
4. Get a certified copy of your complete school record.

We do NOT recommend that a potential applicant get a copy of his/her criminal record at this time.

Making an application for Deferred Action is a big step, and it can have good and bad consequences. It is critically important that you understand all the possibilities before making the application. If you would like to discuss Deferred Action for yourself, a family member, or a friend, contact the immigration attorneys at the Law Offices of J Craig Fong: +1.323.769.8187 --jcf

The immigration attorneys at the Law Offices of J Craig Fong -- with clients from the Coachella Valley and Palm Springs, to Southern California and Los Angeles, and throughout the world -- have been closely watching the implementation of the prosecutorial discretion policy as it affects gay men, lesbians, and persons in nontraditional family relationships.

As readers of this blog may recall, in the latter half of 2011, the Obama administration instructed its enforcers of the immigration laws (also known as the Immigration and Customs Enforcement branch of the Department of Homeland Security) to consider exercising its discretion to dismiss "low priority" deportation and removal cases. The "Morton Memo" indicated that the following criteria may be viewed as positive factors:

Circumstances of arrival - especially if the person came to the US as a child
Pursuit of education - if they have graduated from high school in the United States and/or are pursuing higher education
U.S. Military service
Ties to the U.S., including family relationships
Pregnant or nursing women
Age, especially for minors and the elderly
If the person is a primary caretaker of another person with a severe illness or disability
Persons who are likely to be granted temporary or permanent status because they are an asylum seeker, victim of domestic violence, human trafficking, or other crime

In the months that have followed, many questions were raised and Immigration and Customs Enforcement continues to tweak the memo's implementation. However, one question that seems to be resolved is that the government appears to recognize that an individual in removal proceedings who is in a bona fide same-sex relationship may be deserving of prosecutorial discretion.

Earlier this month, a gay Costa Rican man was spared from deportation based in part due to his 2008 marriage to a U.S. citizen. Last year, an Immigration Judge in New Jersey granted a reprieve in the deportation proceedings against a Venezuelan man married to a U.S. citizen. However, the policy does not appear to be uniformly applied, as a couple in Philadelphia still faces the prospect of separation.

The immigration attorneys at the Law Offices of J Craig Fong cannot stress enough: This is not "amnesty." There is no new program for legalization here. The government is not providing any lawful permanent resident status or employment authorization. However, in some circumstances, the Government IS viewing a same-sex marriage as a positive factor and allowing some non-traditional families to stay together inside the United States.

If you are a gay man or lesbian or in a nontraditional family relationship, or if you or a loved one is facing the prospect of removal from the USA, you should consult with the immigration attorneys at the Law Offices of J Craig Fong. We have offices in Los Angeles and Palm Springs. Attorneys at our firm have served the gay and lesbian community with pride for over a quarter of a century. --jcf & ra

The recent Los Angeles arson situation brings to mind many people who have consulted the attorneys at the Law Offices of J Craig Fong in our Los Angeles and Palm Springs offices. They have a valid visa or legal permanent residence (green card), and they have been convicted of a crime. Sometimes it is a serious crime; sometimes it is something minor. In some of these cases, the conviction has virtually unfixable immigration consequences.

In 1990, Congress created the concept of "aggravated felonies," crimes that are considered so bad that an alien might not even qualify for the typical defenses to deportation (removal), such as asylum, cancellation of removal, or withholding of removal. In other words, the Congress has simply decided that someone who has committed an "aggravated felony" should just be deported (removed) regardless of the defenses s/he might try to use.

The name "aggrevated felony" is misleading. "Aggravated felony" includes such obviously serious crimes as murder, rape, or arson; we can all agree that these crimes are quite serious. However, "aggravated felony" can also include some less- obviously terrible crimes, such as attempted possession of stolen property, attempted robbery, petty theft, trespass, unauthorized use of a vehicle. Even if a crime was charged as a misdemeanor in the legal system, it can still be considered an "aggravated felony" for immigration purposes.

Congress defines an "aggravated felony" as:
(1) murder, rape, or sexual abuse of a minor;
(2) illicit trafficking in controlled substances;
(3) illicit trafficking in firearms or destructive devices;
(4) any offense related to laundering of monetary instruments in connection with certain unlawful activity;
(5) offenses relating to transportation, receiving, or using explosives, forearms, or ammunition;
(6) using fire (arson) or an explosives to commit any felony or causing an explosion during the commission of any felony; and the catch-all category,
(7) crimes of violence -- which can also, in some circumstances, include theft, burglary, lewd conduct, simple battery, threats, and statutory rape; and
(8) some other Federal and state laws.

As you can see, this a very broad list of crimes.

We caution all our clients who have green cards or who have temporary visas to contact us if they have any contact with law enforcement so that we can evaluate the nature of the underlying crime. Please remember that even if you are already present in the USA, if you commit an "aggravated felony," you could trigger arrest or a deportation (removal) if you try to apply for an extension of stay, a renewal of your green card, a change of status, an adjustment of status (green card), or if you re-enter the USA after a brief absence.

If you have more questions about "aggravated felonies," please contact an experienced immigration attorney. --jcf

Today the world mourns Steve Jobs. Steve Jobs was the creator and visionary at Apple, Inc. but he is remembered as one of the world's greatest business leaders, ranking up there with the likes of Ford and Rockefeller. Steve Jobs was credited for bringing technology and it's benefits to the every day lives of every day people. The attorneys at Law Offices of J Craig Fong want to thank Steve Jobs for changing how we think about technology, for inspiring us to think creatively in what we do as immigration attorneys.

Law Offices of J Craig Fong is proud to run our office on Apple technology. We love our Apple computers, iPhones and iPads. But more importantly, the immigration attorneys at the Law Offices of J Craig Fong have also embraced the entrepreneurial spirit and determination which is best exemplified by Steve Job's own words:

Your work is going to fill a large part of your life, and the only way to be truly satisfied is to do what you believe is great work. And the only way to do great work is to love what you do.

As immigration lawyers, we know that the law allows families to reunify, it gives foreign workers and entrepreneurs a chance to realize their dreams. What we do at the Law Offices of J Craig Fong gives people a chance in a lifetime to make a change for the better. Many, many of our clients come to us after other immigration attorneys have turned their cases away hearing their employers were too small, too new to sponsor an H-1b or that a new company L-1 is just impossible these days. Or perhaps their family members were facing removal or in desperate need of an immigration waiver but that odds were against them so that it wasn't worth trying. at the Law Offices of J Craig Fong, we don't provide formulaic solutions to challenges. Steve Jobs didn't do that and neither do we. Challenging cases require exacting solutions. We work on each case with the individualized attention that each case deserves and we have the years of experience to know what works and what does not. When other immigration attorneys won't make the extra effort to take on cases that are outside the norm, we do - because this is what makes our work meaningful, and this is what inspires us to create great work and to make a difference, a world of difference to the individuals who didn't settle and tried anyhow. --ecf

Los Angeles-based immigration attorneys at the Law Offices of J Craig Fong 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' Law Offices of J Craig Fong 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 USCIS this week provided information on the types of immigration applications for Japanese nationals who are affected by disasters caused the earthquakes and tsunamis last week. In limited circumstances, the USCIS can expedite the processing of the following types of requests/cases:

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 Law Offices of J Craig Fong 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 Law Offices of J Craig Fong 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 Law Offices of J Craig Fong for guidance on how to check the US Department of State for travel warnings and other restrictions. ---ecf

Individuals who seek the assistance of the immigration attorneys at the Los Angeles Law Offices of J Craig Fong often marry their spouses after they are placed into removal proceedings. The question then became: how much patience will the Immigration Judge have while the government determines if it was a "bona fide marriage," or if it one entered solely to save the respondent from deportation?

The Ninth Circuit U.S. Court of Appeals recently determined that an immigration judge cannot deny a request for a continuance simply because the government takes too long to adjudicate cases. In Malilia v. Holder, the Ninth Circuit considered the case of an individual who married his fiancee while he was in removal proceedings. Mr. Malilia's lawyer requested that the judge wait until U.S. Citizenship & Immigration Services made a decision on the petition filed by Mr. Malilia's wife. The judge denied the request for a continuance, finding first, that there was a presumption that Mr. Malilia had married his wife in order to obtain immigration benefits and second, that USCIS would take an "unpredictable period of time" to adjudicate the marriage petition. Because Mr. Malilia was not then eligible for relief, the judge ordered his removal from the United States and Mr. Malilia appealed. During the course of Mr. Malilia's appeal, USCIS determined that the marriage was bona fide and approved the petition.

Ultimately, the Court sided with Mr. Malilia. The Court agreed with the Immigration Judge that a presumption exists. However, the Court noted that the presumption can be overcome by evidence presented by the couple. In other words, the couple must have an opportunity to persuade the government that their marriage is genuine and not for the purpose of obtaining immigration benefits. This process takes time -- months, sometimes years.

While this process is pending, an Immigration Judge should hold the court proceedings and wait for a determination from USCIS. The Court acknowledged the lengthy period of time that it takes for USCIS to make these determinations, but found that for an Immigration Judge to deny a continuance on that basis would punish the individual for the government's delay. Immigration Judges should consider a number of factors when determining whether to grant a continuance in a court case. However, the Court noted that "delay that is not attributable to the respondent augurs in favor of a continuance." The Court remanded Mr. Malilia's case to the Immigration Judge so that he could pursue adjustment of status based upon the approved marriage petition.

Although this decision had a favorable outcome for the respondent, every individual's case is different and involves different issues. If you are in removal proceedings, you should speak with an experienced immigration attorney to consult about all of your options. ---RA

Like many other areas of the law, immigration and nationality law is vast and complex. It has come to the point where no one attorney can truly know ALL of immigration law. For this reason, the lawyers of The Law Offices of J Craig Fong in Los Angeles are very happy to welcome Romben Aquino as of counsel to our firm. Romben will handle the deportation (removal), asylum, appellate, and other specialized cases in our office.

My law partner, Eileen Chun-Fruto, and I have long wanted someone to handle the litigation cases in the office, most especially because the current administration's immigration policies have resulted in record numbers of deportations (removals) from the United States. Finding such a person was not easy. Eileen and I have very strong ideas about the way that an attorney should practice immigration law. We are thrilled to have Romben Aquino as part of our team.

Romben is the son of immigrants. A graduate of UCLA and Northeastern University School of Law, he is keenly aware of how important an attorney's role is in counseling immigrants and their families. He has worked with a well-known immigration law firm in New York City and a firm in the San Fernando Valley. The litigation and appeal process is challenging and requires a strong, keen mind and a feeling heart. Romben has both.

Romben will continue to handle cases for Cancellation and Withholding of Removal, asylum, claims under the Convention Against Torture, other defenses against deportation, and all kinds of immigration-related appeals. He can be contacted at the Law Offices of J Craig Fong at +1.323.769.8187. --jcf