Monthly Archives: December 2017

North Carolina Feels the Pain of Loss of Seasonal Visa Workers

By Peek & Toland on December 18, 2017

Many coastal communities in the United States rely on seasonal visa workers to keep going. Now threats to the program are crippling them.

The Outer Banks of North Carolina is one example. Property prices are high here and it’s difficult to find local people to do seasonal work.

Over the summer the Charlotte Observer noted how a lack of foreign workers is impacting the tourist economy.

The report noted how foreign workers form the backbone of the Seaside Farm Market in Corolla over the summer when as many as 50,000 people visit a community with 500 people.

For the first time in more than two decades, owners Bill and Julie Grandy were unable to get the H-2B temporary visas they need to bring workers in from Mexico.

Lack of seasonal visa workers hit North Carolina

North Carolina lacked seasonal visas workers

They’ve employed Mexicans for years. Not a single local applicant applies for jobs paying $15 an hour.

The lack of seasonal visa workers has pushed their half-a-million investment to the brink, they say.

H-2B visas are temporary visas used to fill seasonal non-agricultural jobs. In states like North Carolina and Texas, they are predominantly used in tourism, landscaping, and seafood processing industries. Other parts of the hospitality industry uses the visas.

The Observer noted North Carolina uses more H-2B visas than any other U.S. state besides Texas and Colorado. It received 4,324 worker certifications in the fiscal year 2017, states the Office of Foreign Labor Certification.

President Donald Trump’s “America First” policies may be impacting the H-2B visa program, say experts.

But while Trump has pledged to reform the H-1B program, which brings skilled workers to the U.S. for up to six years from countries like India, he has said little about the H-2B visa program.

The New York Times reported Trump has used scores of temporary foreign workers at properties like the Mar-a-Lago club in Florida.

Every year, 66,000 H-2B visas are allotted – half of them for the winter and half for the summer.

In previous years, returning workers were allowed to come back without being counted against the cap. However, Congress has not renewed the returning worker exemption after it expired in September 2016. The application process has been more competitive in 2017.

If you are applying for an H-2B visa, it’s vital to get the application process right. Contact our Austin, Texas immigration lawyers today at (512) 474-4445.

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Afghan Girls Robotics Team Was Denied Visas to Travel to the United States

By Peek & Toland on December 15, 2017

Concerns about denied visas to travel to the United States have spiked during the Trump administration and there have been some high profile examples of people barred from traveling.

In July, an all-girls robotics team from Afghanistan that was selected for an international robotics competition in Washington, D.C. was denied visas by the U.S. State Department, reported ABC News.

The team was twice denied visas. However, the girls were eventually allowed to compete in the competition after a backlash.

Afghan team was denied visas to travel

The Afghan girls robotics team was initially denied visas to travel

The team was made up of six teen girls from Herat in Afghanistan. They were hoping to take part in the inaugural FIRST Global Challenge. The event was a high tech challenge in which teams of young men and women from around the world got the chance to showcase robots they built.

The team’s bio on the competition’s website stated:

“As a dedicated group of students, mentors, and volunteers, we aim to transform the culture of our community through the STEAM program and become some of the young leaders of science and technology.”

They were reported to be devastated after being denied visas to travel to the United States. The reasons for the denial and subsequent approval were unclear.

The State Department told ABC News visas are evaluated on a case-by-case method and it could not comment on individual visa applications.

Sestak speculated the war in Afghanistan may have been a factor leading to the initial visa denials.

Another possible motive may have been the fear the girls would not return home.

The Washington Post noted a brain drain from war torn Afghanistan.

Afghan and U.S. officials said teachers, scholarship students, and others who receive temporary visas to visit the United States frequently disappear into immigrant communities instead of returning to the Middle East.

It may explain the few visas that are being granted to people from Afghanistan.

Statistics from the State Department revealed a mere 112 business visas were granted to visitors from Afghanistan in the 2017 financial year.

In contrast, Syrians received 256, Iraqis 780 and Iranians 1,091. While Syria and Iran are on a list of majority Muslim countries in Donald Trump’s travel ban which is to be considered by the U.S. Supreme Court, Afghanistan is not.

It’s becoming increasingly difficult to get visas to visit the United States if you are from certain countries. A Texas visa attorney can help you with your application and minimize your chances of rejection. Call Peek & Toland at (512) 474-4445 or see our resources on visas here.


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What Happens in a Merits Hearing in an Immigration Case

By Peek & Toland on December 14, 2017

A merits hearing is the most important part of the removal proceeding for a non-citizen. It gives the non-citizen a chance to present arguments directly to an immigration judge and defend his or her right to remain in the country.

Failure to make a valid case is likely to end with the immigrant being deported.

Before attending the merits hearing, which is also called an individual hearing, the immigration judge must read the Notice to Appear (NTA) out loud to the immigrant or his or her immigration attorney. The immigrant must state whether they admit or deny each allegation and whether they agree to or refute the charge or charges of removability or inadmissibility

The parties must agree on the allegations. The immigration judge will then decide if there is enough evidence to deport the immigrant. The judge will ask for the reasons why the person in question should be deported.

outlining an immigration merits hearing

What happens in an immigration merits hearing

Often an immigrant will be put into removal proceedings even when there are valid reasons why he or she may stay in the country.

It’s, therefore, important to have an experienced Texas cancellation of removal lawyer to represent you and to find potential reasons why you should not be removed.

Once the allegations are agreed upon by all parties and the immigration judge decides there is sufficient evidence to find an immigrant removable or inadmissible as charged, the immigrant will be asked what form of relief from removal he or she is seeking.

Even if the immigration judge decides the immigrant is removable as charged in the Notice to Appear, he or she can legally remain in the country if a valid defense to the charges can be presented.

Common defenses include cancellation of removal, asylum, marriage to a U.S. citizen, or prosecutorial discretion.

An immigrant should have identified what type of relief to apply for by the time the Merits Hearing is held.

The immigration judge will have instructed the non-citizen to submit his or her application for relief along with all supporting documents to the court and to send a copy to the Department of Homeland Security (DHS) by a certain date.

A failure to submit all forms of relief, supporting documents and fees by the date ordered by the judge will result in the non-citizen being removed from the country before the merits hearing.

In recent years, the wait for an immigration hearing has increased dramatically and the courts have struggled with the workload.

As of the end of April 2017, the number of cases waiting for a decision reached an all-time high of 585,930.

On average individuals are waiting 670 days, and may wait considerably longer before their cases are heard. Nine courts account for a quarter of the national backlog requiring some people to wait for more than four additional years before a hearing is scheduled.

In San Francisco, the immigration court has 42,000 backlogged cases. Some individuals have waited more than five additional years, equating to 1,908 days longer for a July 21, 2022 hearing date. We noted on our blog how Texas has one of the largest immigration backlogs.

If you are facing possible deportation, please contact our Austin immigration lawyers at (512) 474-4445.


Posted in Cancellation of Removal, Immigration

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Cowboys’ Damien Wilson is Charged with Aggravated Assault

By Peek & Toland on December 13, 2017

Football players frequently get into trouble with the law. Earlier this year, Dallas Cowboys’ linebacker Damien Wilson was charged with aggravated assault.

Wilson was arrested and charged with two counts of felony aggravated assault with a deadly weapon, according to the Frisco Police Department.

Police said an incident occurred in the Toyota Stadium parking lot during a Freedom Fest event in Frisco in early July. Police said in a report the player backed his truck into a woman while he was parking at the stadium before showing a rifle to a man, “causing him to be in fear.”

A report on NBC Sport derived from the affidavit stated a man flagged down police officers to tell them a man hit his sister-in-law with a car. He said she was trying to hold a parking spot for relatives. He said the man took out an AR-15 that was eventually returned to his vehicle.

Cowboys Damien Wilson is charged with aggravated assault

Dallas Cowboy is charged with aggravated assault

He identified Wilson, who initially denied the claim before admitting “road rage” caused him to take out his gun, the affidavit stated.

Wilson was later released from Frisco Detention Center after posting $20,000 bond. The case remains under investigation, according to police.

The incident left Wilson open to discipline by the NFL under the league’s personal conduct policy.

The Star-Telegram reported the club was taking a ‘wait and see’ approach over possible disciplinary action.

Executive vice president Stephen Jones said:

“I just think in any situation this day and time, you have to gather all the facts before you do anything. I’m sure most people walking benefited from getting the benefit of the doubt and a second chance.”

NFL players often end up with criminal records. A recent report in the New York Times stressed one NFL player in 40 is arrested in any given year.

Drunk driving following by domestic violence is the most common offense among NFL players, according to the report.

From 2000 to 2014, 202 players were charged with DWI or DUI, according to the report. It found 88 players were convicted of assault and battery and 85 of domestic violence over the 14-year period of the study.

Many Dallas Cowboys and former players had run-ins with the law.

Larry Bethea, who played as a defensive linesman for the Dallas Cowboys in the 1980s was convicted of stealing from his mother. In 1987 he was found dead with a self-inflicted gunshot wound hours after being identified as a robbery suspect in Newport News, Virginia, reported the New York Times.

Aggravated assault is a serious crime in Texas. If you have been charged with an assault crime, please contact our experienced Austin criminal defense lawyers.

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The Female Prisoner Rate Rises in the United States

By Peek & Toland on December 12, 2017

Increasing numbers of women are being incarcerated in the United States as the female prisoner rate rises across the country.

Recently the Associated Press noted how more women are being held in prisons across the country.

The report noted how the female prisoner rate increased more than sevenfold over the last three decades. Over the same period, incarceration rates of men rose at half that rate.

Men still make up the bulk of prisoners in the United States. Recent federal figures show 113,000 women incarcerated in federal and state prisons in 2014. The next year saw a small dip for both sexes. The Obama-era sentencing policies sought to shorten prison terms for nonviolent drug offenders to reduce the nation’s prison population.

Prisons see a rise in female prisoner rate

female prisoner rate rises in the United States

Earlier this year, Attorney General Jeff Sessions announced a tougher policy on incarceration that’s likely to see more non-violent drug offenders being locked up.

The spike in the numbers of women prisoners is of concern to welfare agencies and other groups.

Holly Harris, executive director of the Justice Action Network, told Catholic News Agency:

“We talk a lot about racial disparities in our system, but for some odd reason, we’ve really not focused on women, and it’s been to the detriment of public safety.”

The agency noted the U.S. Conference of Catholic Bishops addressed a rising number of women in prison in their 2000 statement on criminal justice reform entitled “Responsibility, Rehabilitation, and Restoration.”

The bishops noted much of the increase in women in prisons was attributable to tougher drug laws.

Typically, these women were locked up for non-violent offenses. The Bishops noted many of them left children behind, often in foster care, when they entered prisons.

The spike in the female prison population over the last few decades is staggering.

In 1970, fewer than 8,000 women were incarcerated in American prisons. By 2014, that figure was up to 110,000, the Vera Institute reported. The most significant increases were seen in small or “midsize” counties.

There is a wide range of sentences for drug offenses in Texas but the state is tough on these crimes, we note on our website.

If have been charged with a drug offense or are seeking jail release, please contact our Austin criminal defense lawyers at (512) 474-4445.

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New Rules Mean a DWI Will Lead to Automatic Visa Revocation

By Peek & Toland on December 11, 2017

Drunk driving is taken seriously in Texas, especially for undocumented immigrants or people who are in the United States on temporary visas.

In November 2015, the U.S. Department of State formulated a visa revocation policy that was clarified a year later.

The policy applied to people in the United States on non-immigrant visas who were arrested for or convicted of driving while intoxicated, or similar arrests/convictions, that took place within the previous five years.

The new policy does not apply if an arrest or a conviction occurred before the date of the visa application and was already been assessed in the context of a visa application.

In recent months, The State Department has been automatically revoking nonimmigrant visa stamps when visitors or other temporary nonimmigrants are arrested for drunk driving offenses.

In some cases, this has happened as soon as the day of the arrest. The policy is alarming because an arrest rather than a conviction is all that is needed to revoke a visa.

DWI leads to automatic visa revocation

DWI triggers automatic visa revocation

The revoking of the visa stamp means the foreign national must appear again before the U.S. Consulate abroad for an in-person interview before they are allowed to return to the United States.

The U.S Department of State attempts to justify the policy by stating drunk driving may be indicative of a disorder. It states:

“Driving under the influence indicates a possible visa ineligibility under INA 212(a)(1)(A)(iii) for a physical or mental disorder with associated harmful behavior that is likely to pose a threat to the property, safety, or welfare of the applicant or others in the future.”

If your visa is no longer valid to travel to the United States due to a DWI, the visa stamp in your passport will not be valid if you try to get back into the country.

Automatic Visa Revocation – The Affected Visas

A valid visa stamp is required to reenter the United States after travel abroad. If you leave the country after a DWI arrest you will be required to appear before an approved physician. The doctor will look for signs of alcohol or drug dependency or other factors that might make the visa holder a threat when in the United States.’

Most visa applicants will have to deal with the additional expense of legal fees for the criminal proceedings and the anxiety that these proceedings entail, as well as the expense and inconvenience of an additional trip to a U.S. Consulate overseas, a formal, evaluation by a doctor for alcohol or chemical dependency, a delay in the issuing of a visa and the embarrassment of explaining it all to an employer.

In the case of the holders of J visas, if a J-1’s visa is revoked, the Department of State will normally revoke any J-2 dependents’ visas as well. It’s not clear why this provision only applies to J-2 dependents or whether it may be extended in the future.

There are 14 programs under the J visa category. They include camp counselors, college students, and au pairs.

The prospect of automatic visa revocation for a DWI should alert visa holders to be particularly careful about drinking and driving in the United States. Always make sure to designate a driver who is not drinking alcohol.

If you have any questions or wish to challenge a visa revocation, please contact our Austin immigration attorneys at (512) 474-4445.

Posted in DWI, Visas

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How to Convert An E-2 Visa Into a Green Card

By Peek & Toland on December 8, 2017

There are a number of ways to convert an E-2 visa into a green card in the United States.

An E-2 visa is also known as a treaty investor visa. The E-2 nonimmigrant classification allows a national of a treaty country, defined as a nation with which the United States maintains a treaty of commerce and navigation, to be admitted to this country.

To qualify for a visa, the investor must bring a substantial amount of capital into a U.S. business.  Some employees of a qualified person or of a qualifying organization may also be eligible for the E-2 visa classification.

An article in Forbes details some ways that an E-2 visa can be converted into a green card for permanent residence.

How an E-2 visa becomes a green card

How to convert an E-2 visa into a green card

Although being taxed as a permanent residence can be a disincentive to becoming a permanent resident, some investors may be able to deal with this issue through sound financial planning.

Ways of obtaining a green card include:

1 Investing in a regional center project

As opposed to pumping $1 million into their own country, an investor can put $500,000 into an EB-5 regional center project while continuing to run an E-2 business venture.

The requirement of creating 10 new jobs can be met via the regional center project. Although obtaining a green card via the EB-5 route may prove to be cheaper, funds will be tied up for at least five years.

2 Investing More Money Under the EB-5 Program

E-2 visa holders may invest more money under the EB-5 program at the same time as operating their business. However, investors currently have to find $1 million, invest it in the local economy and create at least 10 jobs. These must be created directly from the funds invested.

3 Creating a New Business Enterprise Outside the United States

An E-2 investor could set up a large enterprise on foreign soil, work there as a manager for a year and return to the United States in the role of a permanent inter-corporate transferee.

The E-2 visa holder could consider getting their spouse to run the foreign company and then come in on the green card, Forbes suggests.

This would allow the spouse to include the E-2 holder as part of their permanent application.

4 Getting an Employer to Sponsor You

The E-2 visa holder may be able to get sponsorship via an employer for a green card.  A worker with exceptional ability may even be able to obtain an exemption (a National Interest Waiver) from a PERM labor certification. The sponsoring employer could not be from the company one founded with the E-2 visa.

5 Sponsorship by a Family Member

If the E-2 visa holder has a close relative in the United States who is a citizen or green card holder, the relative could sponsor the investor for permanent residency while the E-2 investor continues to work on their business.

Obtaining visas and a permanent residency is a complicated and time-consuming process. Our experienced Austin, Texas visa attorneys can help you. Call us at (512) 474-4445.

Posted in Immigration, Visas

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Shootings in San Antonio Highlight Violence Against Police in Texas

By Peek & Toland on December 7, 2017

Texas is no stranger to violence against police. Two cities, in particular, have seen a spate of police killings.

San Antonio and Dallas have been the scenes of police slayings over the last two years.

In late June, a police officer in San Antonio died of his wounds after a shootout with a man who the officer and his partner attempted to talk to about a vehicle break-in.

The officers were patrolling north of downtown San Antonio. They wanted to question two men because they were close to a vehicle that had been broken into. The men were not even considered to be suspects.

Officer Miguel Moreno was a nine-year veteran of the San Antonio police force. He was shot in the head by one of the men he tried to question. He died later. The gunman unexpectedly opened fire on Moreno and Officer Julio Cavazos, his partner.

violence against police in San Antonio

Violence against police made headlines in San Antonio

The gunman fired on the officers as they got out of their patrol car. Cavazos also was shot but he returned fire and tried to pull Moreno out of the line of fire.

Cavazos made a recovery after surgery. The gunman was killed in the shootout.

The latest fatal shooting of a police officer came as Texas enacts a law that will make violence against police officers a hate crime.

Texas Governor Greg Abbott said:

“This senseless act of violence against two courageous and committed law enforcement officers demonstrates the risk our men and women in blue face every day. We owe Officer Moreno and Officer Julio Cavazos a great debt of gratitude for their service and bravery in the face of danger.”

The incident in June came on the heels of the killing of a San Antonio detective in November. The officer, Benjamin Marconi, a 20-year-veteran of the force was sitting in his patrol car writing a ticket when a man approached him and shot him in the head.

KXAN reported the suspect, Otis Tyrone McKane, later said he was angry about a child-custody fight and lashed out.

In July 2016, as racial tensions ran high nationally, a sniper ambushed and killed five police officers at a Black Rights Matter march in Dallas.

Micah Johnson was a military veteran of conflicts in Afghanistan. The killings provided the impetus for Abbott to call for new legislation.

If you have been accused of a crime against a police officer, you are likely to be facing a very serious sentence. You should contact an experienced Austin criminal defense lawyer as soon as possible.

Posted in Criminal Defense

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Grand Jury Reform is Discussed in Texas

By Peek & Toland on December 6, 2017

Concerns over the way the grand jury system works in Texas have led to discussions and legislation about grand jury reform.

However, a bipartisan proposal before state lawmakers this year to require prosecutors to share evidence with grand juries that could help a suspect’s case, failed to make the statute books.

Senate Bill 1424 and its nearly identical counterpart House Bill 2640 promised to bring much-needed reforms to the grand jury system, reported the Houston Chronicle.

The Chronicle article claimed the grand jury remains mysterious and stacked against the accused.

Grandy jury reform discussed in Texas

Grand jury reform is discussed in Texas

Among other things, the unsuccessful bills required the government to introduce evidence that was more likely to challenge the accused’s guilt.

Counsel for the accused would be allowed in the grand jury room to advise the defendants and witnesses. Attorneys would not have been allowed to directly address the grand jury.

The legislation would have prevented prosecutors from going to a second grand jury if an initial grand jury declines to indict — unless new evidence came to light.

The bills aimed to remove some of the mystery from the proceedings by providing a transcript while allowing the prosecution to protect the identities of witnesses and victims.

The Chronicle article said other states have been practicing reforms along the same lines for decades with no negative consequences.

The bills were introduced in the House and Senate by State Rep. Senfronia Thompson and Sen. Dawn Buckingham.

They claimed the proposals would level the playing field when a defendant appears before a grand jury.

Thompson said grand jury procedures were originally meant to provide checks and balances against “oppressive prosecution or potential witch hunts.”

She said the proceedings were now skewed and give prosecutors for the state an unfair advantage over the accused, even when the defendant is innocent.

The Chronicle article suggested the public may favor grand jury reform more than legislators.

A poll conducted by Baselice & Associates found 88 percent of registered voters in the Lone Star State said a prosecutor should not have the ability to withhold evidence that pointed to the innocence of an accused person during a grand jury proceeding.

For now, the problems persist in the grand jury system. If you are facing an indictment for a crime in Austin, Round Rock, San Antonio or elsewhere, it makes sense to hire an experienced criminal defense lawyer. Call Peek & Toland at (512) 474-4445.

Posted in Criminal Defense

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Automation and Criminal Justice May be a Harmful Mix

By Peek & Toland on December 5, 2017

Computers are a part of our everyday life and the criminal justice system is becoming more automated too. However, there may be a serious downside to automation and criminal justice.

From audio sensors that detect gun shots to forensic tests and criminal risk assessment programs, automation plays a major role in the criminal law process.

It is also making the system less fair for defendants, according to the New York Times.

The Times article traces the root of the problem to the fact that most of the manufacturers of software and other systems are privately owned and are set up to make a profit.

The technologies are a trade secret which means a lack of transparency about how they work and whether they are functioning correctly.

Automation and criminal justice

Automation poses a challenge for criminal justice

It can be a challenge for the defendants and their attorneys to find out how these systems work even under a protective order in a court setting.

The New York Times cited the case of Glen Rodriguez. The New York State inmate was denied parole even though he had an almost perfect record of rehabilitation. He was denied parole on the basis of a reading on a computer system called Compass.

Unlike many defendants, Rodriguez did research and was able to show the Compass system returned an erroneous result.

The case of Billy Ray Johnson in California was even more extreme. He was sentenced to life without parole for a series of burglaries and sexual assaults he did not commit following readings from a system used to analyze DNA traces from crime scenes.

When a defense team expert wanted to review the source code he was told it was a trade secret. The court refused to allow the code to be disclosed to Johnson’s attorney.

The trade secret privilege ruling was upheld by the California Court of Appeals. That decision is being cited across the country to deny defendants access to trade secrets, even when the findings might prove their innocence.

In some court systems in California, a new case management system has proved to be so unreliable it’s impeding the administration of justice.

In Alameda County, the new Odyssey Case Manager system is linked to wrongful arrests, delayed prison releases and other legal missteps, reports the Washington Post.

The problems became so extreme that the public defender’s office filed a motion last year for the county court to immediately fix the problems caused by the county court’s software system, or completely scrap it.

As many as 26 separate incidents were highlighted in the motion. Public Defender Brendon Woods said these cases were “just the tip of the iceberg” in terms of the number of people impacted.

Odyssey Case Manager systems are used in other jurisdictions including some in Texas.

Some of these examples highlight the problems inherent with automation and criminal justice. Unlike most consumers, defendants have few rights to address the wrongs. It’s important to hire an experienced Texas criminal defense lawyer to fight your case. Call us at (512) 474-4445.


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