Changes in Immigration Practice The New Issues We Now
Shared by: ygs12945
Changes in Immigration Practice: The New Issues We Now Face With Several Areas of Immigration Law Immigration law has evolved from a form-based straightforward area of law to this ever-changing and complex practice since the late sixties. I remember when I started thirty years ago, there were only a few immigration practitioners and there wasn’t much flexibility or opportunities for being creative with the law. Although I had to learn things from scratch, the law was more basic and form-based. It was just a matter of adding to your knowledge through experience. I would sit on my desk, do intake and screen clients, and the main question is whether there is a case or not, period. Once there is a case – whether it’s for deportation, green card, non-immigrant visas, or citizenship, you go through the simple step-by-step process and the case is done. We would go to court facing the same issue for ten cases, and get done with proceedings in about five minutes. It was more like the old workman’s compensation practice – once you get the facts of the case, you would know if you can get the relief you were seeking, and you fill out forms or do a simple motion, and you’re done. Today, immigration law is not even a single category anymore. There are so many branches and each has their own laws, precedent cases, ethical issues, which really require passionate and core-skills lawyering. Departments include family-based immigration with the CSPA issue, Corporate Business immigration and alien-side business immigration with ethical, communications, and prevailing wage issues, alien- criminal issues with its repercussions to removal, deportation, exclusion and naturalization benefits with the different avenues for relief and waivers. Even health care workers have their own specialized category as are religious workers. Family Immigration used to be a practice of obtaining the facts - date of marriage, who is the United States Citizen relative or spouse, is anyone a derivative spouse or child when the principal was petitioned or adjusted status, etc. then based on those, you get the forms, you check the preference charts for priority-dates, get the supporting documents, you file, you go to the interview, you’re done. Today, a major part of dealing with family immigration is the Child Status Protection Act (CSPA), enacted in August of 2002. CSPA provided protection for children who are beneficiaries under the preference categories or who are derivative beneficiaries of their parents’ priority date. Prior to the act, when visa eligibility for a child occurs when he is over 21, he doesn’t get the benefit of being able to adjust immediately. There were so many instances where an entire family gets their green card, but the oldest child gets left behind and is unable to adjust. We have a detained case now where the alien came to the US as a child, aged-out, now in jail, hoping to get his green card. When a petition takes several years before approval, and the child becomes 21, prior to CSPA, he would lose immediate relative or derivative child status. Today, CSPA allows for a child’s age to be under 21 for immigration purposes, and allow him to benefit from being a “child”, when certain conditions are met. Drafters of the act took note of the adverse effects of the delay in processing petitions and how it affected families, in particular older children from adjusting with their parents and younger siblings due to processing delays. Through CSPA, the time that a petition (family petition or employment petition of either parent) was pending would be subtracted from a child’s age when the immigrant number became available. As long as an immigrant visa application or adjustment of status application is filed within a year of the visa number being available, this calculation of age could apply, benefiting thousands of children whose parents and siblings have already become green card holders. For Business Immigration, there is a big difference between working on cases coming from corporations, cases with smaller businesses, or representing aliens to get their work permit (alien-side business immigration). Big corporations have a lot of ethical dilemmas to consider. They want immigration practitioners to communicate only with them and not with the alien. Prevailing wage is not usually the problem since they have enough money to pay. They tend to be more careful with the labor certification procedure, with human resources having a big influence with the entire recruitment process. Almost word-for-word, advertisements and job descriptions are closely scrutinized. For immigration practitioners, the flipside of this arduous process is that you would continue doing business with the big corporation especially if you get the first few petitions and labor certifications approved. Also, the corporation’s information would already be in your system so there would be lesser questions in succeeding cases. On the smaller hospitality, retail, and restaurant businesses, one concern is their ability to pay the prevailing wage. It has become much harder for them to petition an alien because they have to provide financial documentation proving their ability to pay the prevailing wage. Most aliens though work for these smaller businesses and the prevailing wage issue is one of the challenges in small-business related employment- based cases. Criminal issues have also become a big influence in immigration practice. Different categories of crimes – crimes not of moral turpitude, crimes of moral turpitude, aggravated felonies etc. could spell the difference between obtaining citizenship, preserving your green card, or obtaining your green card. Certain pleas may lead to deportation or removal, and even subject you to mandatory detention. Even when you have a green card, once you have committed certain crimes, an I-90 Application to replace a lost, stolen, or expired green card could be delayed or denied pending review of the criminal issues of an applicant. On deportation cases, though some aliens can stay as they prepare for their master or individual hearings, legislation legalizing their eligibility to obtain driver’s license and work permits have not been enacted, unless the relief you are seeking has provided you with the legal eligibility to apply for one. Some relatives of aliens would also come to you once the alien is detained, and the emotional aspect of dealing with jail cases when a spouse or child is in jail could be very tough. Some of these people did not get notice of a hearing and would suddenly get picked up. They are not criminals. Some would get false advise from consultations, and the alien, thinking that everything is okay, will all of a sudden be in violation of a final order and get detained. Today, there are a variety of ways to help these people, we just have to dig deep and do extensive research. Thorough questioning at the intake of clients is a must in order to save time and assess whether something could be done. For detained cases, time is always of the essence as some aliens might be deported even before a motion is filed. These are what make immigration practice exciting and fulfilling. The challenge in balancing its legal and emotional side, and the need to constantly follow the changing aspects and differences of new laws and cases, are what make me love this field. The opportunity to help someone when it seems to them like there’s nothing, and providing families with an opportunity to be together and have a bright future in this great country is always a special privilege. The complexity and constant changes in law also provides creative lawyers an opportunity to show their skills and establish precedent-setting cases, which ultimately benefits not just our clients, but the entire legal community as well. Being part of these is really special.