USCIS published the national average processing times for select forms based on all USCIS office for FY2014 through FY2018, as well as for FY2019 up to October 31, 2018. 

​Often in the news, we see stories about undocumented applicants being arrested while attending their USCIS interviews. A lot of applicants wanting to apply for immigration benefits are worried about similar incidents happening to them. We will discuss the USCIS policies regarding to the arrest of an alien during the interview process below: 
 
General rule - not arresting the alien even though he/she may be in the U.S. illegally 
 
Per USCIS policy, as a general rule, any alien who appears for an interview before an USCIS officer in connection with an application or petition seeking benefits under the INA shall not be arrested during the course of the interview, even though the alien may be in the United States illegally.  If the alien is ineligible for the benefit being sought, the interviewing officer should advise the alien that he or she will receive a written decision on the application or petition by mail.  The officer may (at the officer’s discretion) also verbally advise the alien of the anticipated nature of the decision, what the alien’s available options might be (e.g. appeal the decision, renew the application in proceedings before the Immigration Court, etc.), when the officer anticipates the decision will be mailed, etc. The alien will then be allowed to depart from the office.  

Note: This general rule applies only to adjudication scenarios. It does not apply to inspection scenarios (at ports of entry or during proceedings involving deferred inspection or completion of parole) or enforcement scenarios.  
 
Exceptions to the general rule 

In some cases, an illegal alien’s actions or situation may be so egregious as to justify making an exception to the general rule that those who appear voluntarily for an interview should not be arrested during the course of that interview. Such actions and situations include, but are not limited to:An alien who is the subject of an outstanding warrant of arrest for criminal violations;
 An alien who during the course of the interview assaults another party, e.g.,

​Often in the news, we see stories about undocumented applicants being arrested while attending their USCIS interviews. A lot of applicants wanting to apply for immigration benefits are worried about similar incidents happening to them. We will discuss the USCIS policies regarding to the arrest of an alien during the interview process below: 
 
General rule - not arresting the alien even though he/she may be in the U.S. illegally 
 
Per USCIS policy, as a general rule, any alien who appears for an interview before an USCIS officer in connection with an application or petition seeking benefits under the INA shall not be arrested during the course of the interview, even though the alien may be in the United States illegally.  If the alien is ineligible for the benefit being sought, the interviewing officer should advise the alien that he or she will receive a written decision on the application or petition by mail.  The officer may (at the officer’s discretion) also verbally advise the alien of the anticipated nature of the decision, what the alien’s available options might be (e.g. appeal the decision, renew the application in proceedings before the Immigration Court, etc.), when the officer anticipates the decision will be mailed, etc. The alien will then be allowed to depart from the office.  

Note: This general rule applies only to adjudication scenarios. It does not apply to inspection scenarios (at ports of entry or during proceedings involving deferred inspection or completion of parole) or enforcement scenarios.  
 
Exceptions to the general rule 

In some cases, an illegal alien’s actions or situation may be so egregious as to justify making an exception to the general rule that those who appear voluntarily for an interview should not be arrested during the course of that interview. Such actions and situations include, but are not limited to:

• An alien who is the subject of an outstanding warrant of arrest for criminal violations;

 

• An alien who during the course of the interview assaults another party, e.g., the interviewing officer, a government clerk, a government attorney, or a co-interviewee (such as a spouse or child);

 

• An alien who，during the course of the interview, willfully destroys government property or commits any other crimes of such nature and magnitude;

 

• The alien is a threat to the safety or well-being of another party;

 

• An alien who is the subject of a previously-issued warrant of deportation or warrant of removal,   UNLESS   the alien is seeking benefits under a provision of a law (e.g., NACARA or HRIFA) which specifically allows an alien under an order of deportation or removal to seek such benefits; or

 

• Any other similar action or situation, which in the view of district management, warrants placing the alien under arrest.

If an interviewing officer believes that an alien’s situation or actions fall within the guidelines, he/she shall refer the matter (through his or her supervisory chain of command) to the local Investigation Branch in accordance with established local procedures.  The actual decision as to whether to place the alien under arrest shall be made by the appropriate Enforcement Branch personnel in accordance with established procedures.  If you have any reason to believe that one or more of the above situations apply to you, it is in your best interests to consult with an experienced attorney before sending an application to the USCIS.  

Introduction
Drug offenses can carry serious immigration consequences.  The possible consequences include deportation, detention, ineligibility for residency, loss of asylum, temporary and permanent bars to citizenship, and stiff federal sentences upon reentry.  
 
Deportability
The general ground of deportability is covered in INA § 237(a)(2)(B)(i) and 8 USC 1227(a)(2)(B)(i) which find that a violation of any law or regulation related to a controlled substance makes an alien deportable.  In terms of deportability, some considerations to keep in mind would be whether the drug-related offense is a controlled substance offense or a drug trafficking aggravated felony.  
 
Marijuana
Although the recreational use of marijuana has been legalized in some states such as California, the possession of marijuana is treated different under federal law, and especially in relation to immigration law. For immigration purposes, it is federal law that controls, and it remains a federal offense to possess marijuana. Do not think that it is fine to “blaze up” after hearing that the Adult Use of Marijuana Act (Proposition 64) was passed!
 
The definition of the term “controlled substance” is given in 21 USC § 802, and “Marihuana” is listed in Schedule I of part B of the subchapter.
    
Immigration law treats any marijuana-related activity as a crime, with harsh penalties, even if it is permitted under state law. In terms of what immigration consequences marijuana will bear, factors to take into account include the amount of marijuana, whether it was simple possession or distribution of the drug, whether or not it was for personal use, and the number of times a person has been convicted for possessing marijuana. 
 
General Advice for immigrants ( From Immigration Legal Resource Center)

• Stay away from marijuana until you are a U.S. citizen.
• Do not use medical marijuana unless there is no good substitute. 
• Do not carry marijuana, a medical marijuana card, or marijuana stickers, t-shirts, etc. Remove any text or photos relating to marijuana from your social media and phone.
• If you have used marijuana or worked in the industry, get a legal consult before leaving the United States or applying for naturalization or immigration status.
• Never discuss conduct involving marijuana with immigration, border, consular, or law enforcement authorities -- unless your immigration attorney has advised that this is safe.

 
Conclusion
It can be difficult to understand what type of drug convictions would trigger deportability, and what an individual should do when charged with possession.  There are a number of ways and possible exceptions that a knowledgeable and experienced attorney can use to advocate for clients in Immigration Court and to counter the many immigration consequences of drug offenses.  The Law Offices of Sabrina Li, P.C. has successfully represented clients with convictions in their immigration cases in the past.  Please do not hesitate to get in contact to discuss the possible legal options available to you.  

​Now that you have finally received your green card, you are free to travel outside the United States, and temporary or brief travel usually does not affect your permanent resident status. If it is determined, however, that you did not intend to make the United States your permanent home, you will be found to have abandoned your permanent resident status.  

You may be found to have abandoned your status if you:

• Move to another country, intending to live there permanently.
• Remain outside of the United States for an extended period of time, unless you intended this to be a temporary absence, as shown by:
  • The reason for your trip;
  • How long you intended to be absent from the United States;
  • Any other circumstances of your absence; and
  • Any events that may have prolonged your absence.
  • Note: Obtaining a re-entry permit from USCIS before you leave, or a returning resident visa (SB-1) from a U.S. consulate while abroad, may assist you in showing that you intended only a temporary absence.
• Fail to file income tax returns while living outside of the United States for any period.
• Declare yourself a “nonimmigrant” on your U.S. tax returns.

So what is considered an extended period of time? Here is the breakdown:

1. Stay outside of the U.S. for less than six months

Regulation provides that an Legal permanent resident returning from abroad doesn’t even count as applying to CBP for “admission” (i.e., CBP won’t question his or her qualifications to enter) if he or she meets the following requirements, among others:

• he or she has been abroad for under 180 days; and
• he or she has not abandoned LPR status by making a trip abroad that isn’t “temporary.”

It is important to point out that being abroad for under 6 months (actually 180 days) is one of the requirements but is not enough. Your trips abroad must still fall within the definition of “temporary.” one example is when somebody who lives abroad but who briefly “touches down” in the U.S. once every 5 months for vacation. This person has abandoned LPR status so should not be readmitted as an LPR, despite keeping every trip abroad under 6 months.
 
2. Stay outside of the U.S. for more than six months but less than one year

A general guide used is whether you have been absent from the United States for more than a year. If you are a lawful permanent resident , you may leave the U.S. multiple times and reenter, as long as you do not intend to stay outside the U.S. for 1 year or more. However, please note abandonment may be found to occur in trips of less than a year where it is believed you did not intend to make the United States your permanent residence.( See the “touch down” rule we explained above. 

3. Stay outside of the U.S. for more than one year but less than two years

If you plan on being absent from the United States for longer than a year, we suggest you first apply for a reentry permit.. Obtaining a reentry permit prior to leaving the United States allows a permanent or conditional permanent resident to apply for admission into the United States during the permit’s validity without the need to obtain a returning resident visa from a U.S. Embassy or Consulate abroad.

4. Stay outside of the U.S. for more than two years

If you remain outside of the United States for more than 2 years, any reentry permit granted before your departure from the United States will have expired. In this case, we suggest you to consider applying for a returning resident visa at the nearest U.S. Embassy or Consulate. A returning resident visa applicant will be required to establish eligibility for an immigrant visa and will need a medical exam.  There is an exception to this process for the spouse or child of either a member of the U.S. Armed Forces or civilian employee of the U.S. Government stationed abroad on official orders.

Even after obtaining the reentry permit or Returning resident, you will still need to be prepared to be examined by an officer about your intent of residing in the U.S. permanently. The officer may consider criteria such as whether your intention was to visit abroad only temporarily, whether you maintained U.S. family and community ties, maintained U.S employment, filed U.S. income taxes as a resident, or otherwise established your intention to return to the United States as your permanent home. Other factors that may be considered include whether you maintained a U.S. mailing address, kept U.S. bank accounts and a valid U.S. driver’s license, own property or run a business in the United States, or any other evidence that supports the temporary nature of your absence.
​
What rights do I have if the inspecting officer does not accept my explanation?
When a permanent resident returns after a trip abroad, it is important for you to understand your rights.  The most important of these rights is the right to a hearing before an immigration judge if their permanent resident status is questioned by the immigration inspector. Most visitors and other non-immigrants have no right to a hearing, and immigration inspectors have been known to try and encourage permanent residents to sign an abandonment of their green cards instead of requesting such a hearing.  Once a person signs an abandonment, their permanent resident status is gone and extremely difficult to recover.If your evidence or explanation is not accepted by the immigration inspector, do not sign the form for abandonment and politely request a hearing on the question.

Ideally, always talk to an experienced immigration about your long-term stays out of the country before you leave. Your attorney can advise you the best arguments possible for demonstrating that you have not abandoned your residence and/or jeopardized their eligibility for naturalization. This is especially important when you have already spent significant time outside the United States.   For your consultation, please call us at (213) 375-8096

Getting an employment-based green card is a multiple step process and it generally takes several years to get it.  Here is a brief introduction of the process. 

Step 1: Perm
Program Electronic Review Management (PERM) is the system used for obtaining labor certification and is the first step for certain foreign nationals in obtaining an employment-based immigrant visa (“green card”). This is also known as PERM labor certification (LC). The labor certification is a determination that there is a shortage of American workers who are willing and able to by the DOL perform the offered job. That is accomplished by the employer advertising the position in the newspaper and other media.
 
Before filing an application, the employer must conduct specified recruitment activities. 
 
Step 2:  Immigrant Worker Petition
After the labor certification is approved by the DOL, an Immigrant Petition related to the labor certification should be filed with the USCIS before the expiration of the labor certification. The certification has a validity period of 180-days and expires if not submitted to USCIS within this period. This phase currently takes about three to five months.
At this stage, the employer will need to demonstrate the company’s ability to pay the prevailing wage, which may require submission of company’s financial statement or tax returns.
USCIS (Citizenship and Immigration Services) Premium Processing option is also available for this phase for an extra $1,225 in filing fees. Premium Processing cases are reviewed by CIS within 15 working days.
 
Step 3: Consular Processing Abroad or “Adjustment of Status”
The last and final step in the permanent resident process is an application filed by the foreign national. The foreign national’s immediate dependents (spouse and children) may also join the foreign national employee at this step in the process and file their own applications as the employee’s dependents.
Each case is given a priority date based upon when it is first filed with USCIS. This priority date is the foreign national’s “place in line” for an immigrant visa for someone from their birth country as they become available. If the foreign national employee’s priority date is current, the adjustment of status application may be filed with USCIS concurrently with the I-140 Petition. If the priority date is not yet current due to quota backlogs, then it may be several months or years before the individual may file the last phase in the permanent resident process. The attorney will track priority dates and prepare this filing.
The USCIS currently charges a $700 filing fee per I-140 Petition.
 
STATUS WHILE IMMIGRANT PETITION IS PENDING
 
During this entire process, the sponsored employee and his/her family, residing in the U.S., should maintain their valid nonimmigrant (temporary) status. However, the applicant (as well as his/her dependents) are eligible to apply for work authorization upon filing for adjustment of status in the U.S.

​The most recent memo issued by white house on February 20, 2017, greatly expanded the DHS’s authority to deport of millions of undocumented immigrants. Almost any undocumented person now can be detained and deported, regardless if he or she has any criminal record.  

Under this new memo, any immigration who cannot prove they have been in the United States for over two years could be deported with a hearing in front of an immigration judge. Previously, this was limited in practice to people apprehended within 100 miles of the border and who had arrived within the past two weeks.

According to the administration, protections will remain in place for now for immigrants who came to the United States as children and have since received permission to live and work in the United States under President Obama’s Deferred Action for Childhood Arrivals program, known as DACA.

Immigration and Customs Enforcement (ICE) is part of the U.S. Department of Homeland Security, which is responsible for deportation. Often ICE agents identify the person before they are making the arrest. Then, they go to residences, courthouses, workplaces and even shelters to look for that person. ICE agents also make arrests in public, when they do so, it happens very quickly. They may call the person’s name out loud and ask him or her to confirm the name and then detain this person. 

The Trump administration created a blueprint for mass deportation, many people, including longtime community members, would be affected. If you or your loved ones might be affected by this new policy, you should plan ahead and know your rights under the U.S Constitution. 

ICE arrest could be happening at an unexpected time and location, make sure you remember your family, friend or attorney’s phone number by heart. Make arrangement for children, elder parents or anyone are under you care if you are detained. Always keep your important documents in a safe place, where your family a friend can access if it becomes necessary. 

During an arrest, remember that undocument.

For many couples who undergo the process of filing a petition for a spouse , the task can prove to be intimidating and confusing. While you and your spouse bear the responsibility of presenting clear and convincing evidence that you entered into their marriage in good faith, it is still important to make sure that you do not feel obligated to answer questions that would amount to a gross invasion of privacy. If an officer, for instance, asks you if the marriage was consummated on the wedding night, feel free to object, and ask the officer to move on to the next question. A couple’s sex life is their personal business, and a husband and wife may prove that their relationship is not a sham through other evidence. If the interview officer insists that you have to answer, you can ask to speak to this officer's supervisor. 

An experienced attorney can help you navigate through the interview process, it is always a good idea to consult with an immigration attorney prior to the interview.  

​What is TN Status/ Visa?
The North American Free Trade Agreement (NAFTA) created special economic and trade relationships between the U.S., Canada & Mexico.The non-immigrant NAFTA professional (TN) visa allows citizens of Canada & Mexico, as NAFTA professionals, to work in the US in pre-arranged business activities for U.S. or foreign employers.

Eligibility
·         A citizen of Canada or Mexico;
·        Profession must be on the NAFTA list: https://travel.state.gov/content/visas/en/employment/nafta.html;
·        The position in the US must require a NAFTA professional;
·        Applicant will work in a pre-arranged full-time or part-time job for an employer. Self-employment is not allowed;
·        Applicant must possess the qualifications, meeting the specific requirements, education and/or experience of the profession.

• For Canadians:

Canadian citizens usually are not required to obtain a TN visa. A Canadian citizen can apply for TN status at a U.S. Port of Entry .
A Canadian citizen would need a TN visa if he / she resides in a 3rd country with a non-canadian spouse and/or children. If such a Canadian citizen plans to enter the US as a NAFTA professional, he/she must 1st procure a TN Visa so that the dependent spouse/children may apply for the derivative TD visa.

• For  Mexicans :

Mexican citizens are required to obtain a TN visa in order to enter the US as a NAFTA professional.

When can I apply for a TN Visa?
Unlike H-1B visas, there is no quota on the number of TN visas which may be issued every year, therefore it can be obtained any time of the year.
Canadian applicants may apply directly at a border post, and get their TN visa immediately. Mexicans would have to apply at a consular post, but they may renew at border posts.

Pros and Cons of TN?
An advantage of the TN visa is that it may be renewed indefinitely in 3 year increments.
one limitation of TN is that it is not a “dual intent” visa, Another disadvantage is that your dependents, which would be in the US on TD status, are unable to obtain work authorization.

Why do you need  to hire an Attorney:
Applying for TN visa / status requires preparing different documents for different positions  and involves complex processes. An experienced Immigration attorney could help you complete appropriately to maximize your chances of getting the TN visa / status. Missing documents, deadlines and inappropriate process will get your TN application denied.

​Police investigations, arrests and convictions for prostitution, pimping and human trafficking are on the rise.

This can be seen in two recent news stories – 5 San Gabriel Valley residents were recently arrested under suspicion of a large human trafficking ring spanning numerous countries and a second large sting involving over 200 arrests in the Sepulveda Boulevard and Lankershim Boulevard corridors in the San Fernando Valley.
​
Getting arrested for these types of offenses can lead to quite serious consequences, including jail, prison, probation, asset forfeiture and even deportation.

​What are these types of charges and what are the penalties?

Starting with the least serious offenses, prostitution and solicitation.  Sometimes described as a “victimless crime” or a crime between “consenting adults” this has become an enforcement priority in some communities.
​
Prostitution can be defined as sexual intercourse or a lewd act with someone else in exchange for money or other compensation, and simply agreeing to committing prostitution or requesting (soliciting) an act of prostitution can also be charged.   Penalties include jail time, AIDS testing and probation, but, the more prior convictions someone has the minimum jail times go up.  Sometimes people are ordered to stay away from certain streets where they were arrested.

Also, prostitution is a crime involving moral turpitude.  This type of  offense is both a ground of deportability and inadmissibility, which may result in serious immigration consequences. However, there is exception and defense available under each ground. 

Pimping can be defined as knowingly benefiting from the income of a prostitute, often by loaning or advancing them money or a place to work, accepting the proceeds or requesting a cut from the proceeds of a prostitute.  This is a Felony offense and carries a punishment of up to six years in state prison.

Even more serious are Human Trafficking related offenses.  This is defined as depriving or violating the personal liberty of another to commit a variety of offenses related to prostitution and/or pimping, etc. Typically, this involves allegations that people are transported from outside of California and “forced” into committing sexual acts for money or other compensation.  This is a Felony offense, and can carry a punishment of up to 20 years in state prison.

These 2 recent cases have people charged at each of these levels of offenses.  One thing to notice is that a “prostitute” might also be seen as a “victim” of human trafficking, and there are special considerations for people in that situation, often involving immigration consequences.

USCIS helps protect victims of human trafficking and other crimes by providing immigration relief. Victims of human trafficking may qualify for a U-visa. The U-visa is set aside for victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity.

A U-Visa provides the following benefits: 

• He or she can legally live in the United States for four years. After three years of having a U-Visa you can apply for a green card to stay in the U.S. permanently. (And if you get a green card, you can eventually apply to become a U.S. citizen).
• With a U-Visa he or she can get permission to work in the United States.
• Some of his or her  family members might also be able to get a U-Visa.
• With a U-Visa he or she might be eligible for certain public benefits in some states like California and New York.

These types of cases often involve audio and video recordings, undercover officers and decoys and increasingly involve online advertisements as well as hotels, private residences and massage establishments.  These cases often turn on precise wording, search warrants, tips from neighbors and require skill to defend against.

Consult with a qualified Criminal Defense Attorney if you have been investigated, arrested or charged with one of these crimes or related offenses.If you were a victim of human trafficking, now worried about immigration consequences or would like to learn more about U-visa, consult with an experienced Immigration attorney.
​
----Article is jointly provided by Nicholas Rosenberg, Certified Specialist in Criminal Law and Law Offices of Sabrina Li