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Miami Business Law Blog

Si un Inmigrante no Actualizan su Dirección podría ser Deportado

Un aspecto de la ley de inmigración que pocos conocen es el hecho de que existen sanciones penales para ciertos ciudadanos extranjeros si no cambien su dirección cuando se mudan. Específicamente, la Sección 266 (a) de la Ley de Inmigración y Nacionalidad establece que:

Cada extranjero que deba registrarse bajo este título y que se encuentre dentro de los Estados Unidos deberá notificar al Fiscal General por escrito cada cambio de dirección y dirección nueva dentro de los diez días a partir de la fecha de dicho cambio y proporcionar con dicho aviso información adicional que el Procurador General puede exigir por reglamento.

Esta sección de ley aplica a todos los no-inmigrantes y también a todos los residentes permanentes, excepto aquellas personas con la Visa A (para diplomatico) o la Visa G (para representantes de un gobierno extranjero) y también a ciertos no-inmigrantes que están en el país menos de 30 días. Los padres o tutores de extranjeros menores de 14 años son responsables de presentar los cambios de dirección de esos menores.  La ley tambien aplica a ciertos ciudadanos de los Estados Unidos si habian presentado un formulario para beneficios de inmigracion, como una Delcaracion de Apoyo (Affidavit of Support) en un proceso de inmigracion de otra persona.  

Un extranjero debe notificar al gobierno de un cambio de dirección presentando un Formulario AR-11 ante los Servicios de Ciudadanía e Inmigración de los Estados Unidos (USCIS, por sus siglas en inglés) dentro de los 10 días posteriores a una mudanza dentro de los Estados Unidos o sus territorios.

Unreasonable Delays in Visa Processing Times Could Result in an Award of Attorney's Fees in Favor of the Applicant

As I have advocated in previous blogs, one solution to resolve the unreasonable and inordinate delays in visa petition processing times is to take the government to court, either under the Mandamus Act, 28 U.S.C. §1361, or under the Administrative Procedures Act, 5 U.S.C. §555(b), or both. What is particularly compelling is that under the Equal Access to Justice Act, 28 U.S.C. §2412, a prevailing party shall be awarded attorney's fees where the government cannot show that its position "was substantially justified." The government has the burden of proving that its position was substantially justified.  I would argue that the visa processing delays that we are experiencing now cannot be justified.  In fact, there are fewer immigration petitions being filed, but the processing delays have increased disproportionatly.  Therefore, it is most likely that the applicant and/or beneficiary would be awarded attorney's fees if the applicant prevails in Federal Court.

This would also apply to those who have been unjustifiably denied a visa petition, which is becoming more common nowadays. What's worse is that many visa petitions are being denied despite the fact that the applicants fulfill the legal requirements for the immigration benefits. The answer again is to pursue an appeal in Federal Court and seek attorney's fees to the extent that it can be shown that the government's position was not "substantially justified."  The only caveat for denials of visa petitions is that even if the court rules that the visa petition was incorrectly denied, it does not necessarily mean that the government's position was not "substantially justified."  In plain English, this means that its possible that attorney's fees may not be awarded even if you prevail in overturning the denial.  I would argue that the same cannot be said for the unreasonable visa petition processing delays - those are patently unreasonable.

USCIS Processing Times are Unpredictable and Ever Changing

One of the issues that we face the most in our immigration practice is the lack of clarity and/or transparency in the processing times that U.S. Citizenship and Immigration Services ("USCIS") has for adjudicating petitions. This makes clients frustrated on many levels, but it is something that has become the new normal in our immigration environment.

For example, we've had several EB-1 petitions pending for considerably longer than the USCIS published processing time, but despite multiple case status requests, nothing happens. In one case, we are going on more than 18 months and the published USCIS processing time is a maximum of 11 months. That case involves a multinational U.S. company that has worldwide revenues of over $60 million. At the same time, we have been receiving approvals on similar petitions within a period of less than 8 months. How can this be? There is simply no excuse.

In one of several EB-5 petitions that we've presented, we have been waiting more than 21 months and when we inquired regarding the status of that petition, the published USCIS processing times were suddenly changed to a maximum of 49.5 months. It seems as if someone is simply playing with the numbers.

Moreover, unless the client wants to litigate the case in federal court, which we have advised is an option, there is nothing that can be done. In fact, in an I-130 marriage petition (where a USC marries a foreign national), we've requested expediated processing because of a critical medical condition, but USCIS responded that expedited processing was not available because the condition was not an emergency. In that case, the U.S. citizen client needed to have emergency surgery and her physician provided a letter stating that because of the nature of the surgery, the foreign national husband should be present for the surgery. USCIS's response that the condition was not an emergency was disgusting and alarming.  As such, the foreign national husband cannot come to the U.S. and the surgery, despite considered an emergency by the client's physician, is being unreasonably delayed.

Yet, these are the times we are living with. Indeed, the average processing time is up 46 percent since 2016 despite the fact that the number of new applications being submitted is actually lower than previous years.

Real Estate Investors Urged to Consider Climate Change

When investors in Florida consider the potential of a commercial real estate investment, they are used to taking several factors into account that could affect the long-term value of their stake. After all, many people favor investing in real estate because of its potential to retain and increase value over longer periods of time. Experts are cautioning that climate change may introduce other variables that should also be considered when evaluating a potential investment.

Larger firms in the commercial real estate space are dedicating significant resources to planning for climate risk and how it could affect their portfolios. There is a range of issues related to climate change that could impact the value of real estate, including a greater likelihood of extreme weather and associated repairs as well as the threat of rising sea levels and accompanying flooding. While some note that investors could see a sudden decline in property values in the case of climate change, they also noted that those who are conscious of these issues and make decisions on that basis could outperform the market.

The Glass Ceiling is Lower than Ever

This week, a group of former associates of the Jones Day law firm filed a class-action complaint against the firm alleging that female associates are discriminated against based on gender, pregnancy, and maternity.  The Complaint (Complaint versus Jones Day.pdf) that was filed in the U.S. District Court for the District of Colombia, alleges that the law firm hires approximately the same number of male and female associates, but that women associates make less money and are outnumbered when it comes to making partner. According to the lawsuit, if a woman gets pregnant, the consequences are worse - she usually gets fired.

Unfortunately, this type of conduct is pervasive.  I myself have not only witnessed this type of conduct first hand but have also brought lawsuits against firms and companies for the very same allegations that are being raised by the former Jones Day associates.  For example, last year we finally won a lawsuit that I brought on behalf of a female manager at AutoNation who was passed up for a promotion because she was "not a man."  We brought that case in the year 2014, so it took us a good four years to obtain relief for our client.  In that Complaint (Complaint verses Autonation.pdf) we alleged that the plaintiff had worked at the auto dealership for over 20 years and had been assistant parts manager for the last 10 years. When the parts manager position opened up, the position was given to a younger, less experienced man, despite the fact that the plaintiff expressed her interest in the position. When she asked why she did not get the position, plaintiff says that she was told that the position "needed a man."  For details of this case, see the previous blog that I published back in September 2017.

CRE Investors and New Investment Strategies

Florida and around the country may want to strongly consider using new strategies for 2019. However, some are inclined to continue using those that have been successful for them in the past.

According to a survey conducted by one commercial real estate services firm, some investors will more be more wary in acquiring new assets in 2019. Even though they will be more cautious, the search for increased yield will pull a higher number of investors into secondary markets. The results of the survey show that while value-add is the most favored asset strategy, investing in secondary markets is not very far behind. In fact, the percentage of investors who are actively employing a secondary market strategy has increased for five consecutive years.

Ecuadorian Nationals Lose Treaty Investor Visa

Under Section 101((a)(15)(E)(ii) of the Immigration and Nationality Act (8 U.S.C. §1101 et seq.), certain foreign nationals that are citizens of a country that has entered into a treaty of commerce and navigation with the United States, may obtain a nonimmigrant visa and work and live in the U.S. if such foreign national has invested a "substantial amount of capital" in a U.S. enterprise. This is what is referred to as the "E-2 Treaty Investor Visa" category. There are numerous countries that qualify for this visa because they entered into a treaty of commerce and navigation with the U.S. The U.S. Department of State publishes this list of countries. However, there are many countries that do not have a treaty with the U.S., like Venezuela, Brazil, Uruguay, Portugal, India and other countries. Last year, the U.S. Department of State issued a notification that its treaty with Ecuador was terminated by Ecuador. Therefore, nationals of Ecuador no longer qualify for the E-2 Treaty Investor Visa and Ecuadorian nationals that have made qualifying investments in the U.S. prior to May 18, 2018 will continue to be entitled to E-2 status, but only until May 18, 2028.

Gender Discrimination a Problem in Many Workplaces

According to a survey done by Ranstad US, issues related to gender equality at work can be dealt with by men acting as advocates for it. Furthermore, respondents often cited mentoring programs geared toward women as a way to help achieve gender equality at work. However, workers in Florida and throughout the country may not necessarily know what they can do on their own to create a better environment for their colleagues.

In some cases, those in power may use it to sexually or otherwise harass those of the opposite sex who aren't in positions of power. In situations where a worker sees an abuse of power taking place, it may be beneficial to speak up about the issue. According to the survey, 75 percent said that men being more vocal about the problem of gender equality could help make the problem better.

The Administrative Record is Extremely Important in Filing an Immigration-Related Lawsuit

It has been my practice when filing immigration petitions with the U.S. Citizenship and Immigration Services ("USCIS") to cite to specific caselaw and to develop the legal arguments in support of the client's position. However, many immigration practitioners simply file the forms and an index with a stack of documents. In my opinion, such a practice fails to prepare a case for litigation, which as processing delays and denials increase, may become necessary. Indeed, denials for some categories has gone up over 60% in the last few years and many of those denials are simply baseless. The answer is to appeal to the courts but in order to do so, the petition must contain the appropriate legal arguments and evidence. In almost all cases, judicial review will be based on the record that is before the agency. That means that the immigration lawyer should present the legal arguments that are necessary when filing a petition for a particular category. A discussion of the facts and the application of the law to the facts is becoming ever so important when filing an immigration petition.

Filing a Lawsuit to Require USCIS to Adjudicate a Petition that has been Pending for an Unreasonably Long Time

Nowadays, unreasonable or inordinate delays in immigration petition processing times are causing clients significant stress, particularly because travel may be restricted while the immigration petition or application is pending. However, there is a solution which may have been viewed as extreme in previous years, but which now is getting renewed attention. That solution is filing a lawsuit against the United States Immigration and Citizenship Services ("USCIS") in federal court under the Mandamus and Venue Act of 1962. Under this Act, the party bringing the lawsuit is demanding that the court order USCIS to act and adjudicate the petition or application. In such a case, the party bringing suit must show that he or she has a clear right to the relief requested, that the government has a clear duty to perform the act in question, and that there is no other adequate remedy available.