Santiago J. Padilla, P.A.

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Posts tagged "Immigration"

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:

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.

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.

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.

Filing a Lawsuit to Challenge an Immigration Denial

Visa denials have reached over 60% in certain categories, with the L-1 visa suffering the most repercussions. However, the answer may be filing a lawsuit in federal court. Many clients resist this option, but it is becoming more of a necessity. I have traditionally filed petitions and applications that have detailed legal arguments and are chocked full of relevant evidence so that if the client is willing and able, there is the availability of an appeal to the courts.

Are Changes Coming to the EB-5 Visa Program?

Living in America is a dream for many. While countless people wait for visas, many others search for ways to legally immigrate to the United States. You might want to pursue an education in the U.S. Or perhaps you have loved ones living stateside and you want to join them. Although it may take time to get a visa application approved, there are many means by which you could enter the country.

Be Aware of Preconceived Intent if You are Entering the U.S. as a Tourist and you have the Intention of Filing a Family-Based Immigrant Petition

Under U.S. Immigration law, if you are an "immediate relative" of a U.S. citizen, you can become a U.S. permanent resident very quickly if your U.S. citizen relative files a petition on your behalf. For example, the spouse of a U.S. citizen, an unmarried child of a U.S. citizen under the age of 21, and the parent of a U.S. citizen (provided the U.S. citizen is at least 21 years old) are all "immediate relatives" and they can file a petition to adjust the status of their immediate relative and a "Green Card" will be immediately available.

Recent Presidential Executive Order on Immigration will not have Immediate Impacts

By:  Santiago J. Padilla, Esq.

On April 18, 2017, President Trump signed a new Executive Order, "Buy American and Hire American" which appears to target several immigration programs used by U.S. businesses.  For example, in the "Hire American" portion of the order, President Trump is directing the Department of Labor, the Department of Justice, the Department of Homeland Security, and the Department of State to review the current laws with respect to the H-1B professional employee program and suggest changes so that the most skilled and highest paid positions will be given priority.  President Trump also directed the federal agencies to review all employment based visa programs to crack down on fraud and abuse in order to protect U.S. workers.
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Nevertheless, the American Immigration Lawyers Association ("AILA"), of which I am a member, stated that the changes suggested by President Trump will not have immediate impacts because the changes suggested would require legislative action or rulemaking and it would take time to go through the necessary processes.