Judge Blocks Texas from Enforcing Parts of Immigrant “Harboring” Law

By Peek & Toland on May 31, 2016

Texas’s omnibus border security bill is highly controversial because it makes the harboring of undocumented immigrants a crime in the Lone Star State.

However, a federal judge recently blocked an important part of the legislation in the anti-smuggling provision, stating the “immigrant harboring laws” contained in it were too broad in scope.

Immigrant harboring bill receives a legal set back

ICE agents make an arrest

The Dallas Morning News reported last month on how David Alan Ezra of San Antonio, a U.S. District Judge, blocked this key tenet of the bill.

The judge ordered a preliminary injunction over the measure. He heard the case after the Mexican American Legal Defense and Educational Fund (MALDEF), filed a lawsuit against the state on behalf of two aid groups and two landlords, claiming the state had overstepped its powers and risked making criminals of compassionate Texans.

Texas lawmakers said the bill was intended to counter human smuggling of undocumented immigrants.

Its opponents say they are playing politics. Thomas Saenz, the president and general counsel of MALDEF, issued a press release in January stating the legislation would do nothing but “embroil Texas in litigation and … divide the state in the name of political gamesmanship.”

The lawsuit brought by MALDEF focused on a couple of landlords – one of them in Farmers Branch – who do not require their tenants to provide documentation related to their immigration status before offering them tenancies. The aid group gives legal services and shelter to undocumented immigrants.

Although we appreciate the urgent need for immigration reform, this is not the kind of legislation that is helpful.

Millions of immigrants want to play a positive part in the economy of Texas but are living in the shadows because they are undocumented and fear deportation. You can read more about immigration reform here on our website.

The ruling has left the controversial immigrant harboring laws in the balance. Judge Ezra also said the plaintiffs in the case are likely to prevail on the Supremacy Clause claim.

The lawsuit claims the harboring provision violates the U.S. Constitution’s Supremacy Clause because enforcement of immigration is a federal responsibility. His ruling stated officials at a local and state level lack the authority to enforce the contentious provision until a final decision is reached. The timeline for the case had not been resolved as of last month, according to media reports.

If you have further questions about any aspect of immigration law or would like to consult with a lawyer about issues such as deportation, visas or citizenship, please contact the Peek & Toland, PLLC. Our experienced Austin immigration attorneys would welcome the opportunity to assist you with your issue and to answer all of your questions. Complete the contact form on our website, or call us at (512) 474-4445 for a consultation in English or Spanish.

Key Eligibility Factors for Asylum in the United States

By Peek & Toland on May 30, 2016

Asylum seekers and refugees receive special legal protections for good reason. They are people who have escaped from their home because they feared for their safety and are afraid to return.

Although the terms ‘refugee’ and ‘asylum seeker’ are often interchangeable, and there is no distinction between the factors the two groups faced in their home countries, there is a legal difference.

peek-1-asylum

Your classification as a refugee or an asylum seeker depends on where you are when you apply for protection.

People who have already made it to the border of the United States, perhaps through the use of a visa or by entering the country illegally, can apply for asylum status while those who apply from outside the United States, must apply for refugee status.

What You Must Show to be Eligible for Asylum

1 Persecution

You must demonstrate you have been persecuted in your home country or have a “well-founded fear of persecution.”

U.S. Citizenship and Immigration Services lists the relevant fields of persecution as the following:

  • Race
  • Religion
  • Nationality
  • Membership of a particular social group
  • Political opinion
  • 2 You Must be In the United States
  • You can apply for asylum if you are already in the United States or are at a port of entry.
  • 3 You Have Been in the U.S. for Less Than a Year.Generally, you will not be able to seek asylum if you have been in the country for over a year when you make your application. There are some exceptions based on extraordinary circumstances and changed circumstances.

    4 You Have Not Applied Previously

    Asylum seekers are only given one chance. If you have applied before and your application has been denied, you cannot apply again. You can appeal your denial through the courts system.

    5 You Have Not Committed a Serious Crime

    Some applicants are barred from receiving asylum in the United States if they committed serious crimes in the past such as posing security threats or committed aggravated felonies.

    If you receive asylum in the United States, you can stay and obtain a work permit. If your application is denied, you will face deportation from the country, unless you have other documentation that allows you to stay such as a nonimmigrant visa.

    An experienced Austin immigration lawyer can explain all of your options. If you are seeking asylum in the United States time may not be on your side. We can make a strong case for you to stay in the country, as well as avoiding the pitfalls. Call us for a consultation at (512) 474-4445.

     

What Are Immigrant Investor Regional Centers?

By Peek & Toland on May 27, 2016

The immigrant investor regional program has been in operation for more than a quarter of a century. If you are an entrepreneur from overseas, you, your spouse and any unmarried children you have under 21 may be eligible to apply for permanent residence if you invest in the U.S. economy.

It’s known as the EB-5 Program and is administered by U.S. Citizenship and Immigration Services.

Immigrant investor regional centers

The program allows entrepreneurs and their family members to apply for green cards if they:

  1. Make the “necessary investment” in a U.S. business or a commercial enterprise. The investment must be a minimum of $1 million, or $500,000 if the money is invested in high-unemployment or rural areas, and,
  2. Create or preserve at least 10 permanent full-time jobs for “qualified U.S. workers.”

The EB-5 program was developed in 1990 during the George H.W. Bush presidency to boost jobs and overseas capital investment in an attempt to stimulate the economy. Two years later, Congress created the Immigrant Investor Program, which is also called the Regional Center Program. It’s not a unique concept to America. More than 25 other countries, including the United Kingdom and Australia, operate a similar model.

Investors who create or retain at least 10 jobs can receive EB-5 visas that are set aside for them. Not every proposal qualifies. They must be submitted to USCIS, which assesses their potential to stimulate economic growth. The type of business that is eligible for an EB-5 visa is explained in more detail here.

Congress Widened Immigrant Investor Programs

The program was widened in scope by Congress which permitted Regional Centers to be designed if they could pool EB-5 capital from a number of foreign investors to fund projects that are approved in designated areas by USCIS.

As access to capital was severely curtailed in the recession of the late 2000s, EB-5 investment filled some of the gaps and provided a vital source of money to kick start economic development and infrastructure projects in local communities, states Invest in the USA. The not-for-profit industry trade association carried out a study in 2013 that found EB-5 investment programs contributed $3.58 billion to the country’s GDP and created about 41,000 new jobs.

Texas was one of the states that saw the highest level of capital investment with more than $115 million pumped into the economy in 2013 alone.

The complexity of the application system has deterred investors in the past. The process was streamlined in 2011 and the number of applicants jumped from 800 in 2007 to 3,800 in 2011.

Applying for an EB-5 visa remains challenging. At Peek & Toland, PLLC, our seasoned immigration attorneys can help you through the process while ensuring you are protected. We have a long track record in representing people who invest in Texas. Call us at (512) 474-4445.

H-1B Visa Season Started with Just 65,000 Available

By Peek & Toland on May 26, 2016

Applying for an H-1B visa is literally a lottery. On April 1, U.S. Citizenship and Immigration Services (USCIS) announced it would begin accepting H-1B petitions for FY 2017. By April 7, it announced it had received enough applications to reach the statutory cap of 65,000 visas for 2017.

USCIS said in a press release it had also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption, which is also known as the master’s cap.

Only 65.000 H1-B Visas were available for 2017

Why You Would Apply for an H1-B Visa

The release stated USCIS received more than 236,000 visa petitions during the brief filing period. Just two days later, on April 9, USCIS selected enough applications to meet the caps by using a “computer-generated random selection process,” – in other words, a lottery. USCIS said it would reject and return all of the petitions it did not select along with their filing fees, with the exception of duplicate filings.

The speed with which the cap is exceeded highlights the importance of getting your application ready for the cap season, in plenty of time. There are important prerequisites that are needed first. For instance, a prospective employer in the U.S must file a Labor Conditional Application (LCA) with the Department of Labor before filing an H-1B petition. An LCA can take as long as three weeks to adjudicate.

Before you submit an application, it’s important to know what the visa is.

What is An H-1B Visa?

Skilled and qualified aliens who hold a Bachelor’s Degree can live and work in the United States by obtaining an H-1B visa in their specified field. The fields in question relate to ‘specialty occupations’ and could include research, defense projects, computer science occupations, doctors, engineers or architects. Find out more by clicking this link.

What is the Master’s Cap?

If you hold advanced degrees from a U.S. institution (master’s degree or higher), you have a greater opportunity of being selected. However, only the first 20,000 petitions received for those holding advanced degrees were exempted from the cap. Petitions received above the 20,000 counted toward the regular Bachelor’s cap.

What About Petitions Filed with Premium Processing?

If your H-1B petition was filed with premium processing, your employer and your attorney will know whether or not you have been successful, no later than May 16. USCIS will only notify the attorney you have on file and the employer who is petitioning for the application.

Applying for H-1B visas is often a headache, and the federal government is coming under pressure from business leaders to make more available. Our Austin-based immigration attorneys can smooth the process and make sure you are in compliance with all the conditions before you apply for a visa. If you need help with applying for an H-1B visa, please contact our office to talk to an experienced immigration attorney about how to proceed.

Survey Finds Half of Nation’s Startups Were Founded by Immigrants

By Peek & Toland on May 25, 2016

The true value of immigrants to the creation of skilled jobs in the United States was made clear recently in a survey that found over half of the nation’s business startups were founded by immigrants.

The statistics were produced by the National Foundation for American Policy, a Virginia-based think tank that claims no political affiliation.

Immigrants founded half of all startups

Researchers found immigrants to the United States founded 51 percent of all business startups that are currently valued at $1 billion or more.

The Wall Street Journal reported on how those 44 new companies are valued at $168 billion collectively.

The companies in question created 760 jobs each on average. That’s more than 33,400 jobs in total.  We were pleased to see that immigrants are filling responsible positions within these companies. The study found they make up just over 70 percent of “key management or product development” positions at the startups.

The foundation carried out the study in January this year when it looked at 87 American companies that are valued at $1 billion or more.

The largest number of jobs created at any of the immigrant companies was at SpaceX, which created 4,000 jobs. This California-based company makes and launches advanced rockets and spacecraft. It was set up in 2002 and says on its website it’s the only private company ever to bring back a spacecraft from low-Earth orbit.

Those featured in the survey include Jyoti Bansal, an Indian entrepreneur who founded AppDynamics eight years ago in 2008, and now provides jobs for 900 people at a company that’s valued at $1.9 billion.

The success of these immigrant-founded companies has put the spotlight on the visa system and whether it’s geared up for the creation of successful startups. The Wall Street Journal reported technology leaders including Microsoft’s Bill Gates and Facebook’s Mark Zuckerberg have called for the government to increase the number of H-1B visas that allow skilled overseas workers stay in this country. The survey counters many of the negative stereotypes of immigrants that some politicians like to depict and shows how overseas investment is creating thousands of skilled jobs in the United States.

If you or your company is seeking to apply for an H-1B visa, our experienced Texas immigration employment attorneys can help you. Call us at (512) 474-4445.

Citizenship and Immigration Services Reaches Statutory Cap for H1-B Visas

By Peek & Toland on May 24, 2016

It didn’t take USCIS long to reach the statutory cap for H1-B visas. The season opened on April 1 and the statutory cap of 65,000 visas had been reached by April 7.

U.S. Citizenship and Immigration Services stated it had received enough H-1B petitions which included regular as well as advanced degree cases to reach the statutory cap for the financial year 2017 (10/1/2016 through 9/30/2017).

U.S. Citizenship and Immigration Services reaches the H1-B Visa cap

U.S. Citizenship and Immigration Services reaches the H1-B Visa cap

H-1B visas are for specialty occupation workers. The number of petitions has increased steadily in recent years as the country has come out of recession and more businesses have sought to bring in skilled workers from overseas.

What Happens Post Visa Cap?

The cap was met during the first week that employers could file their petitions for 2017. Over the next few weeks, U.S. Citizenship and Immigration Services will hold a lottery to find out which petitions will be chosen and which ones will be rejected.

The fact the cap has already been reached for FY 2017 means it’s not too early to be making preparations for FY 2018. Petitions may be submitted no earlier than April 1, 2017, for employees who would be hired on October 1, 2017.

To find out the preparations you should make for the H-1B cap season, follow this link.

Here are some of the important things you will need:

1 A foreign credential evaluation

If you are hoping to hire anyone with an education from an overseas institution, you will need a credential evaluation. The H-1B visa classification requires workers you are considering hiring from overseas to demonstrate that they have obtained the equivalent of a U.S. bachelor’s degree.

2 A Labor Conditional Application

A Labor Conditional Application (LCA) must be filed with the U.S. Department of Labor. This has to be obtained before you can file the H-1B petition with USCIS. You should be aware that it can take as long as three weeks to process an LCA.

3 Completed Salary Negotiations

There is a requirement under the LCA that the employer in the United States certifies that the overseas H-1B applicant is to be paid the prevailing wage, as set out by the Department of Labor. Serious delays can occur in the course of salary negotiations between the prospective employee and the U.S. employer.

At Peek & Toland, PLLC, we are well aware of the difficulties inherent in visa applications and the delays and pitfalls of dealing with federal agencies. Our attorneys are experienced in dealing with all of the potential setbacks and are ready to answer any questions you may have about visas.  To arrange a consultation, call us at (512) 474-4445.

 

Sheriff in Houston Backs Programs to Deport Illegal Immigrants

By Peek & Toland on May 23, 2016

Deportation is a harrowing process that can split families apart. Although deportations are less common now in Texas than a few years ago, one sheriff has incurred the anger of local activities by supporting jail programs that work with immigration officials to deport undocumented immigrants who are convicted of crimes.

Last month Breitbart reported how Ron Hickman, the sheriff of Harris County, is supporting the controversial program in the face of opposition.

Notwithstanding his cooperation with the program, Hickman met representatives of United We Dream, an anti-deportation group, last month.  Immigration lawyers and other members of the Houston community were also at the meeting.

Plans to deport undocumented inmates in Houston spark protest

The program in question is Immigration and Customs Enforcement (ICE) program 287(g). Harris and Carrollton police departments are signed up in Texas.

The program allows law enforcement officers to identify inmates who are not lawfully in the country when they are in the Harris County jail. Officials from Immigration and Customs Enforcement (ICE) can then detain and possibly deport them on their release.

The Breitbart report said of about 120,000 inmates held annually in the Harris County penal system, 1,831 individuals were detained by ICE officials in 2015, representing about 1.5 percent of the jail’s population.  However, only 167 inmates who were detained in the jail on criminal charges were ultimately deported.

Houston Public Media reported that Harris will be reviewing the program in June.  Hickman pointed out at a recent meeting of the Harris County Commissioners that it is not a “high volume activity,” and an average of about nine people a month were deported from January of 2015 to September of the same year under the ICE program.

Deportations were rampant in the United States before President Obama announced his “deferred action” plans in 2012. An article in Fortune.com described how Obama earned himself the nickname of “deporter in chief” during his first term of office as he removed about 400,000 noncitizens every year — more than any administration in U.S. history. Read more on our website about deferred action.

Although mass deportations are less common than a few years ago, the existence of the 287 (g) program in Houston and elsewhere, demonstrates how targeting of inmates is still taking place.

If you or a loved one is facing possible deportation or any other immigration nightmare, you should consider contacting our experienced Texas deportation defense attorneys today at (512) 474-4445 or see our questions and answers about deportation.

Undocumented Immigrants Pay Taxes

By Peek & Toland on May 20, 2016

Many people mistakenly believe undocumented immigrants fall outside the rules other residents abide by and are a drain on the resources of the nation. In fact, they pay taxes – more than $11.6 billion a year, according to a recent study.

A report released in April 2016 by the Institute on Taxation and Economic Policy gave an indication of the full scale of the contribution made by undocumented immigrants.

The report provides detailed state-by-state and national estimates of the contributions made by about 11 million undocumented immigrants who were living in the United States as of 2013. If all of these immigrants were granted legal status under President Obama’s deferred action initiative, their contributions would increase by an additional $2 billion.

Undocumented immigrants pay taxes

In Texas, undocumented immigrants paid $1.54 billion in state and local taxes in 2013. That figure would jump to $1.69 billion if the Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), executive orders are backed by the Supreme Court.

How Undocumented Immigrants Pay Taxes

The figure of $11.6 billion paid in taxes every year is based on research by think tanks. It includes:

  • Sales and excise taxes on bills or other purchases;
  • Property taxes from about a third of undocumented immigrants who own homes;
  • Personal income taxes.

In other words, undocumented immigrants are helping their local governments in cities like Austin, Temple and Killeen. They are helping to fund public schools, police, fire services, road repairs and federal and state programs.

The Institute on Taxation and Economic Policy says as many as 5 million, or 46 percent of America’s undocumented immigrants, would pay an additional $805 million a year in state and local taxes if DACA and DAPA become law.

Those opposed to the executive orders claim the costs of the immigration system outweighs its tax benefits.

For instance, The Federation for American Immigration Reform (FAIR), which is opposed to amnesty, claimed that immigration costs about $113 billion a year, as of 2010. It claimed the cost at local and state level was almost $84 billion and immigration costs almost $29 billion at the federal level. The study claimed tax receipts from illegal immigrants failed to get close to the “level of expenditures” by local and national government on behalf of undocumented workers. There is clearly a need for further research on this contentious issue, but we are pleased that last month’s study has highlighted a positive contribution made by undocumented immigrants.

Many of Austin’s undocumented immigrants have lived here for decades and make a positive contribution to the economy. If you are seeking legal status in the Austin area, please do not hesitate to contact our experienced immigration attorneys at (512) 474-4445.

Texas Has the Largest Backlog of Immigration Cases

By Peek & Toland on May 19, 2016

If you are an immigrant or an asylum seeker who is awaiting a court hearing on naturalization, you will be well familiar with the long delays you face in the backlogged courts of Texas. We are well aware of the acute problems in the Austin area because Texas has the largest backlog in the country, according to a recent study.

In March, Human Rights First released its detailed analysis that shed light on the growing backlog. The report illustrated how the whole integrity of the immigration and asylum systems is being called into question by the delays. The report says Texas has a backlog of 89,000 cases. The number of cases pending in the Houston court alone, a city where Peek & Toland has an office, increased from 6,423 to 36,136 in the six years from 2010 to 2016, according to the report.

Texas faces a large immigration backlog

Texas has the largest immigration backlog

Over the last few years, a surge in new arrivals from Central America has fueled the backlog. The underfunded immigration system has failed to respond to the growing numbers.

Eleanor Acer, Senior Director of Refugee Protection with Human Rights First said the growing backlog has left those who are seeking legal protection in “legal limbo for years.”

We echo the concerns of Human Rights First and believe Congress needs to take action now to address the problem. Human Rights First is urging members to fund 75 additional teams of immigration judges to speed up the hearings.

The report from Human Rights First states there are a mere six immigration judges on the bench in Houston, a court that faces a doubling of its caseload by 2019 unless more judges and staff are added.  Immigration and asylum seekers in Texas face a wait of a staggering five years for their cases to be heard. That’s well above the national average which is three years. In Houston and Dallas, wait times have grown by 30 percent since 2014.

It’s a long time for your life to be put on hold. The ongoing stress and uncertainty of an immigration case places many strains on families and means those seeking naturalization or asylum are unable to plan their futures with any degree of certainty.

The disproportionate funding that has gone into the immigration system has exacerbated the problem. Over almost 15 years, Congress has boosted immigration enforcement budgets but has completely failed to adequately fund the court systems that handle the resulting cases. At the same time, the prioritization of cases concerning children and families from Central America has pushed up the wait times for those families that have not been prioritized.

The immigration laws are complex and confusing, and the long waits for court hearings add to the daily stresses. We highlight the need for reform here on our website.

If you are waiting for a court hearing for naturalization, you are not alone. Our experienced immigration attorneys represent clients in Austin, Houston and other cities such as Georgetown and San Marcos. Contact the experienced Texas immigration attorneys at Peek & Toland, PLLC so as we can explain your options and help you to secure legal status in the U.S. Do not hesitate to call us at (512) 474-4445.

Your Options If Your L-1 or H1B Visa is Denied

By Peek & Toland on May 18, 2016

Many U.S. companies require a sizeable and regular supply of highly skilled, temporary workers from overseas to ensure they remain competitive. L-1 or H1B visas are required to bring these specialist workers to the United States.

Although these visas allow companies to employ people who may have skills sets they can’t obtain in the local area, there’s no guarantee the visas will be granted.

Your options when an L-1 visa is denied

Congress created the L-1 classification in 1970 to allow companies that have operations in a number of countries to move personnel to the United States. These are temporary visas, even if the job that is being filled is not temporary in nature. Executives and managers fall under the L1A classification.

Four criteria are set out by U.S. Citizenship and Immigration Services to apply for the visas. If you are considering applying for an L-1 visa, you should make sure you answer these four questions affirmatively to find out if the worker you have in mind will qualify.

To successfully apply for an L-1 visa, the employee in question must be an intra-company transferee, and must have worked with your company abroad for one continuous year out of the last three.

If the employee does not work for your company, you can apply for an H1B visa. However, the recipient must work in a specialty occupation and hold a bachelor’s degree or the equivalent in a specialized field of knowledge. Unlike the L-1 visa, there is an annual cap on the number of H1B visas that are issued. See our website for more details on the cap.

What To Do If a Temporary Work Visa is Denied

Usually, if your work has been denied, we have 30 days to either:

1 Appeal the decision;

2 File a motion to re-open.

Initially, we will look carefully at your case. You may have failed to meet one of the basic criteria. For example, you may have applied for an L-1 Visa for someone who is not employed at your company or be seeking an H1B visa for an applicant who lacks the necessary educational qualifications. One of the most common grounds for the denial of L-1A petitions is when an employee is judged not to be acting in a managerial capacity. This can be open to interpretation.

However, immigration officials can and do make mistakes. We have often successfully re-opened cases by bringing in new evidence or highlighting how evidence was misrepresented.

In such cases, motions to reopen can be very effective. Immigration officials are often overworked and can fail to pick up on evidence that’s relevant to an application.

Appeals are filed with the Administrative Appeals Office (AAO). In most cases appeals take six months to be decided, which can be problematic for the company that applied for the visa. However, in some cases, an appeal can be lodged in a U.S. District Court, where the process is usually faster.

If you are considering applying for an L-1 or H1B visa or your application has been denied, our Texas immigration attorneys may be able to help you. We have offices in Austin and Houston. Call our experienced immigration team at (512) 474-4445.