Immigration Rights | Change of Status

A person temporarily present in the United States may change status from one temporary (nonimmigrant) status to another temporary status. For example, a foreign student who acquires a job in the United States may, upon graduation, change status from a student visa to a temporary work visa.

A change of status is a different idea than “adjustment of status.” An adjustment of status describes the process used by a foreign national who is physically present in the United States to become a lawful permanent resident. In contrast, change of status deals with getting another type of temporary – not permanent – visa.

If you are eligible for change of nonimmigrant status, you may change the status at a US consulate abroad or in the United States.

The key is that you must properly file an application to change status before the authorized stay expires. If you timely file your change of status, then you are permitted to remain in the United States while your application is pending, even the application is decided only after your stay. If you fail to file on time, then you have some wiggle room for an exception, but it is not easy.

If you are admitted to the United States even though you were unlawfully present during a previous stay, then you are not eligible for change of status.

There are some tricky exceptions for J visa holders, K nonimmigrant fiancés, and if you are admitted as a nonimmigrant without a visa under the visa waiver program. 

If there is any complications involved with your status, see an immigration lawyer.

Immigration Rights | Access to Justice Concerns

Many immigrants are financially well-off with white-collar jobs or advanced degrees. They come from relatively prosperous families or they earn enough money in the US to afford immigration legal counsel. Yet many immigrants are not so lucky. They are poor and work on jobs most Americans will not take. 

Many immigrants do not fully grasp American language, culture, and laws. Immigration law, which is as complicated as tax law, is hard for native Americans – much less immigrants – to comprehend.

The unfortunate result is that many immigrants rely on bad information, generally from people who may not have immigration law expertise. Mexicans, for example, are accustomed to go to notaries for legal issues in Mexico, but fail to realize that notaries in the United States do not do what lawyers do in the United States. A person who claims to be qualified to handle legal immigration matters but who does not have a bar license is called a "notario."

The educational requirements for US lawyers dwarf what is required to become a notary. Almost all lawyers must get a four-year undergraduate degree, followed by three years of law school, then they must pass the bar exam. 

Although being part of groups like the American Immigration Lawyers of America (AILA) is not required, many lawyers who practice immigration law become members. These professional organizations provide a means for lawyers to share ideas and solutions. Immigration government agencies are also in communication with AILA. A "notario" does not have these resources.

Stakes are high in immigration matters. If a person relies on the wrong advice, then removal may follow. Families may be broken.

Many immigrants are reluctant to speak to lawyers because they fear that a lawyer will expose them to removal. Cultural issues may prevent an immigrant from seeing an attorney. Money, too, may be a major concern.

The unfortunate truth is that immigration cases logjam courts and the Board of Immigration Appeals. About five years ago, each BIA member had to address about 80 cases per week. If an immigrant cannot articulate a case succinctly or clearly, he or she may suffer adverse consequences.

In 2006, Immigration Courts handled almost 369,000 cases, and 35% were represented by a lawyer. ICE removed 186,000 people in the fiscal year. Less than 50% of lawyers undertake pro bono (unpaid) work in a given year ("The Legal Profession and the Unmet Needs of the Immigrant Poor" by Robert Katzmann, judge on US Court of Appeals for the Second Circuit).

Immigration Rights | Employment Verification, SSN, ITIN

Employers must require workers to prove identity and eligibility to work within three business days of hire. An I-9 form verifies that a worker is eligible to accept employment in the US.

An employer and the worker both fill out the I-9. A social security number often proves identification.

Note that if the social security number does not match the designated worker, then an employer may later receive a “No-Match” letter. There is no immigration consequence. The letter does not prove whether the worker is undocumented or not. Also, the employer does not need to reverify status.

For the workers who are not eligible to get a Social Security Number, they may acquire an Individual Tax Identification number, or ITIN number.

In 2006 1.4 million people used ITIN when filing taxes, of which more than half were likely illegal immigrants. Opponents argue that ITIN numbers institutionalize illegal immigration. Supporters argue that our economy benefits when undocumented immigrants pay taxes.

If an individual is in removal proceedings, whether or not the immigrant paid taxes is a discretionary factor the Immigration Judge will consider, in totality with other factors. Matter of C-V-T-, 22 I&N Dec.7 (BIA 1998).

See a lawyer or accountant with knowledge of immigration issues if you seek tax advice related to immigration. A lawyer with an employment law background will help you hire new workers.

Immigration Rights | Economic Impact of Illegal Immigrants

According to a New York Times/CBS News Poll, 74% of Americans believed that illegal immigrants weakened the US economy, while only 17% say that illegal immigrants strengthen it.

As a lawyer who practices immigration law, most of my colleagues agree with the minority. Myself included.

According to Newsweek, both legal and illegal immigration boost the US economy, but unevenly and not dramatically. 

Many immigrants do jobs that most Americans refuse to take, which is likely a positive factor. These jobs are the hard-labor dirty jobs that pay relatively poorly. Such jobs include construction, cleaning, and agriculture. 

On the other end of the spectrum, many American employers sponsor immigrants because they have special skills that are not available in the US workforce. 

Generally, the law requires an American employer to hire an immigrant only if insufficient available, qualified, and willing US workers exist. And the employment must not have an adverse effect on the wages and working conditions of similarly situated US workers. INA section 212(a)(5)(A).

For many of the 13 million undocumented immigrants in the US, most economists agree that the low wages keep costs down for items like food and homes. Also with an aging workforce in America, more workers are needed to fund retirement programs.

A Harvard economist concluded that immigration hurts some Americans, like the Americans with less education. Many may compete for the same low-skilled, low-paying jobs as immigrants.

What about all the services illegal immigrants use? An economist from the University of California, San Diego, concluded that these immigrants boost federal funds (Social Security contributions, income tax) but cost the states (schools, health benefits, welfare). Overall? A slightly positive gain.

Many Americans believe that immigrants contribute to rising crime rates. According to studies cited in Time Magazine, there is no correlation. Many immigrants have fear of getting arrested because they may be deported. According to the same article, immigrants bring a sense of community to otherwise dilapidated communities.

The scope of this article is limited. Several important considerations are not explored, like differences between different immigrant groups, what immigrants experience in other parts of the world, and how different circumstances in different areas of the US respond to immigrants.

As an immigration lawyer, I meet many people who arrive the US without documentation. Most often I hear stories of sacrifice and hope. I believe that if the 74% of Americans who believe immigrants weaken the US economy were to listen to the stories of more legal and illegal immigrants, many more Americans would accept immigration as a positive economic influence.

Immigration Rights | Same-Sex Couples

As long as a marriage is not fraudulent - and immigration will scrutinize information to weed out fraudulent claims - and there are no other reasons for exclusion, an American citizen may bring a foreign spouse into the US because he or she is considered a qualifying "immediate relative."

Also, lawful permanent residents - green card holders - may bring a spouse into the US on a permanent basis. But this is subject to a quota system which can take years.

If you are a homosexual and your partner is a foreign national living abroad, then your opportunities to permanently bring your partner into the US plummet. True, the trend is that some states legally recognize the rights of same-sex couples. But immigration law, which is federal law, does not protect you.

Recently, the State Department carved a very narrow exception for same-sex partners. The catch? The exception protects diplomats only.

If you are a diplomat that is posted in the US, then your foreign same-sex partner may get a visa to get into the United States.

What would typical same-sex couples do to stay united? Your best bet is to immigrate into the US on other grounds, especially if you can find a US employer and you intend to work and live in the US permanently. See an immigration lawyer to look at alternative solutions.

Immigration Rights | USCIS Website

Lawyers who practice immigration law always use the USCIS webiste.

The U.S. Citizenship and Immigration Services website provides access to all the right immigration forms. There are also articles and alerts to instruct people as to where they need to go.

But do not use USCIS as a substitute for complicated immigration issues. I hear from many people who get information from USCIS but fail to get the results they want. Often there are several reasons to describe poor results, which good lawyers who practice immigration law can detect.

The USCIS website cannot easily communicate immigration alternatives. Maybe a person qualifies for a certain type of visa, but a better visa may be available. For example, there are several different visas available in employment circumstances with unique benefits and risks.

Also, a website does not have an ability to organize your documents if you must submit supporting evidence. Law in America requires documentation, and many people fail to provide it in a manner favorable to USCIS.

In addition to organization, an ability to link the facts from the information to the relevant immigration law is crucial. A good immigration lawyer has the capacity and resources to do this.

So, if you have immigration concerns, then the USCIS website is the place for you! But be careful when you apply what you learn to what you submit, because you may not see the larger picture.

Immigration Rights | Driver Licenses Debate

Not many states grant drivers' licenses to undocumented immigrants. Washington, New Mexico, and Utah are the only states that grant the licenses.

Earlier this week, the Washington State legislature introduced a number of bills to potentially prevent these licenses.

When I am not working as a lawyer on immigration issues, I enjoy taking a hard look at issues that affect our country. The following is an imaginary discussion of the pros and cons of the proposed Washington bills.

Advocate in favor of the new legislation: Awarding a license to undocumented immigrants rewards a group of people who entered into the US without lawful inspection. We want to encourage obedience to our laws, not reward illegal behavior.

Someone against the new legislation: How severe should the punishment be for undocumented immigrants? Taking away someone's driver's license takes away a person's freedom. Taking away someone's license for unlawful entry into the US is not an appropriate punishment. Should an average American be put in prison for running a red light? A punishment must be reasonable.

Pro: Unlawful entry is a serious problem and we need strict laws to discourage it. Our country has around 13 million undocumented immigrants. In the recession, we need to hold jobs open for Americans first, immigrants second. If driving licenses repel immigrants, then we save jobs.

Against: First, America is a nation founded on immigrants, both legal and illegal immigrants, so a high number of undocumented immigrants does not undermine America's standing. Our society has benefited from the differences and hard work many immigrants bring to the US. Many undocumented immigrants do labor-intensive jobs that Americans will not typically do. The money they earn and spend is deserved and helpful to our economy.

Pro: No, immigrants take away jobs that Americans have a right to get. America is also a nation that values the law. We need to enforce our immigration laws, else we undermine our justice system.

Against: If undocumented immigrants are able to get drivers' licenses, then they may feel more responsible to obey laws and pay taxes with an ITIN number.

Pro: We can all use tax dollars, but most undocumented immigrants won't pay them. One major reason is because they want to keep a low profile. Sending in a tax form requires disclosure, even if there is confidentiality protections for ITIN holders.

Against: We should focus our energies on getting undocumented immigrants to come of the shadow and pay taxes. We cannot possibly deport 13 million people. Many of these people are decent, hard-working people who follow the law more closely than American citizens . . .

Let's keep talking.