It is sometimes the case that a person born outside of the U.S. that seeks to become a citizen already has U.S. citizenship–and doesn’t even know it.  That is because the U.S. federal law on citizenship is one of the more complicated laws you will encounter in the world of immigration.  It is not that the principles of the law are that complicated, it’s that Congress has tinkered with the law continuously over the years.  Each time the law changes, the previous provisions are left pretty much as is and are grandfathered into the new law.   The last time this happened was in 2000, when Congress passed the Child Citizenship Act.

The applicability of the older laws is based on dates set in the statute.

The statutes are also broken down by method of transmission, i.e. through a person’s mother or father, and whether or not both parents are U.S. citizens.  Add in one more complicating factor: whether or not someone’s parents were married at the time of that person’s birth.  All of these different circumstances are broken down by applicable sets of dates.

In addition to all this, the person transmitting citizenship, whether a U.S. citizen by birth or naturalization, must spend at least five years in the United States, two of which must be after the citizen’s fourteenth birthday.

In future posts I am going to dig into these requirements in more detail.

There is a key statutory loophole in the Immigration and Nationality Act (INA) that allows many of my clients who came to the U.S. legally, but fall out of legal non-immigrant status at some point during their stay, to acquire permanent residency in the United States.

Persons who overstay their non-immigrant visas begin to accumulate what is known as “unlawful presence” upon the expiration of their lawful status.  The penalty for overstays is quite severe, a 3 year bar to readmission to the U.S. for persons who overstay for more than 180 days but less than one year, and a 10 year bar for persons who overstay more than one year.

The statutory loophole is this: a U.S. citizen may petition on behalf of a foreign national spouse or other immediate relative, and that relative (in most cases) may immediately adjust status within the United States to that of permanent resident, regardless of whether the relative has accumulated unlawful presence that would otherwise trigger a 3 or 10 year bar based on an overstay, or has performed illegal work.  By the way, “adjustment of status” means that a person changes from a non-immigrant visa holder statues to immigrant status, which is initially that of a green card holding permanent resident.   The key to taking advantage of this very significant loophole is that the immediate relative must have entered the U.S. legally.

There is a significant wrinkle if the petitioner is a permanent resident.  Permanent residents are also able to petition on behalf of many of their close relatives as well, including a spouse and unmarried children.  Here is the problem: there is no unlawful presence or illegal work loophole for these relatives.  So applying to adjust status given those circumstances could result in those persons being placed in removal proceedings. Not where you want to be.

In addition, the new unlawful presence waiver, which permits certain persons that entered the U.S. illegally to prequalify for a waiver of unlawful presence before they return to their home country to process at the U.S. Consulate or Embassy, does not apply to relatives of permanent residents, only to relatives of U.S. citizens.

It’s a double whammy.

I am seeing instances of these cases in my office because the availability of immigrant visas for the F2A preference category for spouses and unmarried children of permanent residents is current across the board as of today.  There used to be a backlog, which would usually allow enough time for the resident to become a citizen and then his or her relatives would be able to adjust status without being concerned about unlawful presence or illegal work.

It’s a good reminder why you should seek the guidance of a licensed immigration attorney to assist you.  While the forms that USCIS puts on their website seem simple, the law behind them is fiendishly complex, as my example illustrates.  Straying from the dead-dog simple is likely to take you into dangerous territory without you even knowing it.

One of the many reasons that practicing immigration law is so different from other types of law is that we work in the immigration courts, which are administrative courts established under the U.S. Department of Justice.  As you can see in this article, the immigration courts operate quite differently from the majority of courts operating under the auspices of the judicial branch of our government.  Immigration courts are different; they are run by the Department of Justice, an executive branch department.  Immigration judges are not Article III judges under the U.S. Constitution, but rather employees of the Department of Justice.  Immigration judges render decisions based on U.S. law, most often relating to persons in removal proceedings.  They have broad discretion.  The discretion afforded immigration judges is a two-edged sword.  We have personally observed acts of great kindness on the part of certain immigration judges, and eye rollers from others.  Decisions rendered by immigration judges are often appealed (after exhausting other DoJ administrative remedies) to the federal courts, and that is where the eye roller decisions are often overturned.  But as is always the case in the law, getting that far takes money and a lot of patience.

Certainly, the conversion of every public building into an armed camp, with the attendant distrust of the people supposedly being served, encourages the courts to take the next step and consider that they can conduct their activities in the manner described in the article.  Applying sunshine to any public official always has an interesting and beneficial effect.

On our radio program last week, we were talking about two types of immigration cases that are often misunderstood by immigrants: ten-year cancellation of removal cases and asylum cases.  We frequently see clients that have been to a “notario” to get help with their immigration cases.  Why folks do not go to an attorney in the first place is often the result of two reasons: (1) the notario is far cheaper, and (2) there is a misunderstanding of the notario’s ability to help.  In many countries that do not have legal systems based on the common law, which includes most of the non-English speaking world, civil law notaries possess far greater legal authority than they do in the United States.  They handle non-contentious legal matters, in a function much like a solicitor.  In the United States, notaries public are persons who primarily administer oaths and witness the execution of certain documents, such as affidavits and deeds.  A civil law notary trains in the law at the baccalaureate level and higher.  A Florida notary public takes an online course and a quiz.  I should know, as I am a notary public.  Got the stamp!

So the usual scenario is that the immigrant goes to the notario and asks how he or she can get legal status because, thanks to the Real ID Act, getting a drivers license is not possible anymore without some sort of status.  Scenario one: If the immigrant has been here for over ten years, the notario says it’s simple, we’ll get you ten year cancellation.  Fill out the papers, its easy!  Scenario two: we’ll apply to get you asylum.  Easy!

But the path to ten-year cancellation of removal runs through the immigration court.  You can rest assured that the notario won’t be there.  Only licensed attorneys, some law students working under an attorney’s direct supervision, and Board of Immigration Appeals-accredited representatives are allowed to sit in the chair next to you in the court room.

Similarly, most notario asylum applications are what we call “bare bones” applications, including only minimum information.  The path to asylum goes through an asylum officer and possibly the immigration court as well.  Guess what?  Once again, the notario won’t be there.  We have seen cases where the potential asylee did not go to an interview because the notario failed to notify the potential asylee of the appointment notice!  If a potential asylee does not present an credible case to the asylum officer, or they do not show up, the application may be denied and the applicant will be referred to immigration court, where making a credible case is more difficult and costly, and where a removal order is entirely possible.

The bottom line: notarios are not cost effective.  They frequently damage an immigrant’s case, which will ultimately require significant– and expensive–work by a licensed attorney to resolve.  Most attorneys, when confronted with an immigration issue, will steer clear because they know that immigration law is complex.  Why trust a notario to do work that many lawyers won’t take on?

Nuestro programa de radio “Inmigrante, Somos Tu Voz” se presenta desde esta semana  los jueves a las 11 am en La Fantastika, AM 1440 en Orlando.  Ponga nuestro programa en  tu calendario y escuchenos.

We are restarting our blog here at the Farr Group.  Our focus will remain on U.S. immigration law.  That’s what we do.

Side note: we frequently get phone calls from people that are looking for help with the immigration laws of other countries.  To be able to learn and keep up to speed with the immigration laws of other countries around the world is unfortunately a Sisyphean task.  We are licensed to practice law in the State of Florida and under the federal law of the United States.  U.S. immigration law is largely federal although it does have state spillover, particularly when there are criminal and juvenile issues.  This is not to say that if there is a problem involving non-U.S. immigration matters we can’t help.  Sometimes making a change in a person’s U.S. immigration status can resolve a foreign immigration problem.

But if you are wanting to know how to get permanent residence in Australia, we probably can’t help.

Based on the 2010 Census data approximately 11.2 million undocumented immigrants were living in the U.S.  Of this 11.2 million at least half paid income taxes. Undocumented immigrants also pay property taxes and everyone, regardless of lawful status, pays sales tax.  All together undocumented immigrants provide a valuable source of revenue to the government.

The Institution for Taxation and Economic Policy has estimated the state and local taxes paid in 2010 by undocumented immigrants, who are heads of households, collectively amount to $11.2 billion dollars in state and local taxes.  This figure includes $1.2 billion in personal income taxes, $1.6 billion in property taxes, and $8.4 billion in sales taxes.

Florida receives about $806.8 million in tax revenue from undocumented immigrants.

Other states that receive large revenues from undocumented immigrants include:

-California $2.7 billion

-Texas $1.6 billion

-New York 662.4 million

-Illinois $499.2 million

To read the full report or to find out how much your state generates from undocumented immigrant revenue please read:

UNAUTHORIZED IMMIGRANTS PAY TAXES, TOO

President Obama has marshaled former California Governor Schwarzenegger, New York Mayor Bloomberg, San Antonio Mayor Castro and Philadelphia Police Commissioner Ramsey, who also served as Washington, D.C., police chief, and others in an attempt to show wide and varied support for an overhaul of the nation’s immigration laws.

The invitees are among a bipartisan group expected to meet with Obama at the White House on Tuesday afternoon to discuss the importance of fixing the nation’s “broken immigration system” to meet the country’s 21st century economic and national security needs.

President Obama has been under fire from immigration activists and Spanish-language media for failing to take up immigration in his first term. He has been consistently reminded of his campaign promise to address immigration early in his administration.  President Obama has repeatedly said he is committed to an immigration overhaul but the deportation of a record 393,000 immigrants in the last year and other enforcement tactics during his administration have left his supports questioning the sincerity of his promise.

To read the original article please visit the Miami Herald.

In February an Arizona jury convicted Faleh Hassan Almaleki, 50, of one count of second-degree murder in the death of Noor Faleh Almaleki. He was also found guilty of aggravated assault for causing serious injuries to Amal Edan Khalaf, the mother of Noor’s fiancé, as well as two counts of leaving the scene.

On Friday, April 15, 2011 Judge Roland Steinle sentenced Almaleki to a total of 34½ years in the Arizona Department of Corrections for his crimes.

Committees in the Florida House and Senate are set to take up controversial immigration bills this week. The tougher of the two, which is being carried through the House by Rep. William Snyder, R-Stuart, is now on Thursday’s Economic Affairs Committee agenda.

Snyder’s measure faces resistance and could be open to the same constitutional challenge surrounding Arizona’s controversial bill because it creates new state-level crimes for immigration.

Snyder has acknowledged that some portions of the bill may be preempted by federal law. Two weeks ago, he said he was still working through concerns various groups have raised about the measure before moving ahead with it.

Meanwhile, the Senate’s immigration bill has been routed around the Criminal Justice Committee and is now headed straight to the budget panel, which is set to discuss the measure this week.

The binding portions of the Senate’s bill focus on requiring employers to verify the eligibility of new hires to work in the country.   A newly proposed amendment would ease those requirements, requiring employers to ask new hires for visas or other forms of identification.

Check back for updates…