What if you gain permanent residence through marriage but decide to divorce and now want to remarry and want to file residency for someone else? Is it a fraud?
Attorney Jeff Peeks answers this question and talks about a specific immigration law provision about this situation and the penalties that can occur if a marriage is fraudulent.
First and foremost, it’s important to note that immigration and the federal government take immigration marriage fraud seriously. It is punishable by a federal felony. You can get time in prison, a hefty fine, and deportation.
Every immigration case is different, but I’ve seen on more than one occasion and where we have a client who received their permanent residency through marriage of a U.S. citizen. After a few years, they want to get a divorce and get remarried and file for their new spouse. It might sound fishy, but first, we have to ask, is it even possible to do that?
There is a specific provision in immigration law which specifically points this out. It says if you are a permanent resident holder and received your residency through marriage, but then you divorce the previous U.S. citizen or resident, and then turn around and want to file for somebody else? Well, that provision states that you cannot do that unless you’ve had your LPR card, residency, for more than five years.
Now, if you cannot wait for those five years, there’s another option where you can show by clear and convincing evidence that the previous marriage was not under the purpose of evading immigration laws.
Today we wrap up our series on expungements and non-disclosures here in Texas.
What is a non-disclosure?
Non-disclosure is a process that enables you to hide or to seal your criminal record as it relates to a particular offense.
Four questions you need to ask yourself if you’re considering a non-disclosure.
Am I eligible for a non-disclosure?
In Texas, you are eligible to non-disclosure, hide, or seal certain parts of your criminal record. But only if you have completed successfully deferred adjudication probation. Therefore, if you entered a no-contest plea, and you were placed on community supervision, and you completed all the terms, you very well could be eligible to have it non-disclosed.
The second part of the eligibility analysis, though, is a little more challenging. Certain charges in Texas are not allowed to non-disclose. Those include violent crimes like murder, kidnapping, sex offenses, family violence, and any violence involving children.
Do I need a lawyer for a non-disclosure?
Yes, you do. Technically, you can do it yourself, but if there’s any ambiguity about the type of offense you successfully completed, your deferred adjudication period with, I think you need a lawyer to make sure it’s done correctly.
How long does it take to get a non-disclosure?
It’s about the same processes as an expunction. It can take maybe up to six months to have everything sealed or hidden. The process itself procedurally is about 45 days from when you request it when the prosecuting attorney will respond. Under the statute, they’re allowed 45 days to respond. And then if they have a response and they don’t object to it, a lot of times the judge will sign off on that order. You can expect at least about two months initially, and sometimes it takes a little longer for your record to be hidden or non-disclosed.
Do I need to hire a local lawyer for a non-disclosure?
No, you don’t. We handle non-disclosures and expunctions all over the State of Texas.
Contact us if you have any questions about expungements, non-disclosures, and your eligibility for each. We’re always glad to help and clarify any of your questions.
Attorney Steve Toland continues his series on expungements and non-disclosures.
What is an expungement? Expungement is the process by which you file for a court order requesting every agency that ever had any contact or any knowledge about you — if you were arrested or charged — to remove any record of you. It can be a mugshot, fingerprints, or any information about you.
If you are considering an expungement here in Texas, here are four questions you should ask yourself
1. Am I Eligible for an Expungement? To be eligible, you must have been arrested and charged with a crime, and it was dismissed. Or you’re arrested or accused of a crime, and it was filed and then dismissed. As long as the offense was dismissed or never filed. You can also be eligible if you went to a jury trial, and you were acquitted or found not guilty. For these scenarios, you are most likely eligible for an expunction.
2. Do I Need a Lawyer for an Expungement? You don’t necessarily need a lawyer. However, because there are time periods attached to expungements, you are better off to hire an attorney to ensure it’s done efficiently and correctly to avoid any mishaps. An attorney can ensure that every agency that ever had any contact with you removes any information.
3. How Long do Expungements Take? The procedural process takes about 30 days from when you file it to get your court date. Then it could take another 180 days or so to have all the agencies respond to the court order, requiring them to remove everything about you. There’s also a statutory time period called a statute of limitations. That’s dependent upon whether it’s a class C misdemeanor, class B misdemeanor, class A misdemeanor, or a felony.
4. Do I need to hire a lawyer locally for Expungements? Let’s say you were charged or accused of a crime, and it was dismissed out in Lubbock, but you now live in Austin. Do you need to hire a local lawyer out in those remote parts of Texas? No, you don’t. Our firm handles expunctions all over the state of Texas.
If you have any questions about this process, reach out to us, and we’d be glad to help you. We help clients clean up their records in preparation for job interviews, background checks, and other important life events.
a felony conviction does not categorically bar you from obtaining a passport. This
document simply identifies you as a U.S. citizen and does not contain any
indicators about your criminal background. There are, however, specific
situations in which individuals with felony convictions will be unable to get a
passport. For instance, if you have a conviction for drug trafficking that you
committed while in another country, federal law would prohibit you from getting
if you are on supervised release, probation, or parole for a criminal offense
and one of its terms prevents you from leaving the country, you will be unable
to obtain a passport. You also will be unable to get a passport if you are
currently participating in a supervised release program for a felony conviction
for possession or distribution of a controlled substance.
you currently are under federal arrest or subject to a federal subpoena, you
also cannot get a passport to travel outside the country. Likewise, if the
federal government has identified you as a severe threat to national security,
or a judge otherwise has forbidden you from leaving the country, a passport
will be unavailable to you.
if you already have a passport, the U.S. government can revoke it at any time
if you fall into one of these categories of people. If your passport is
flagged, you could encounter difficulties if you attempt to leave or re-enter
Finally, many countries, including Canada and Mexico, will not admit individuals with a felony conviction in their country for any reason. In this case, even if you have a valid passport, you may not be able to travel anywhere using that passport.
An experienced Texas criminal defense attorney can help you build a strong defense against any criminal charges. We are here to evaluate the facts surrounding your case and explore your options. We then can help you make the decisions that are mostly like to be beneficial to you, based on your situation. Contact Peek & Toland at (512) 474-4445 today and see how we can help.
A large component of U.S. immigration law since its inception has
been the idea that immigrants seeking to become legal permanent residents and
citizens must demonstrate their ability to care for themselves without becoming
public charges of the State. In the past, this rule has been quite ambiguous.
To combat this, DHS recently clarified the rules of inadmissibility of public
On August 14, 2019, the U.S. Department of Homeland Security (DHS) clarified it’s rules on Inadmissibility of Public Charge Grounds, which codified regulations governing the application of the public charge inadmissibility ground under INA section 212(a)(4).
The rule changes the definitions of public charge and public benefits and changes the standard that DHS uses when determining whether an immigrant is likely to become a “public charge” and thus inadmissible and ineligible for admission or adjustment of status.
this new rule apply?
This rule change specifically applies in the following three
When an immigrant is seeking to adjust his or her status to become
a lawful permanent resident (green card holder) in the U.S.
When an immigrant holds a nonimmigrant visa and seeks to extend
their stay in the same nonimmigrant classification.
When an immigrant holds a nonimmigrant visa and seeks to change
their status to a different nonimmigrant classification.
What will DHS
consider to be public benefits when considering eligibility?
As part of its determination, DHS will consider the following
public benefits when considering eligibility:
Any federal, state, local, or tribal cash assistance for income maintenance
Supplemental Security Income (SSI)
Temporary Assistance for Needy Families (TANF)
Federal, state or local cash benefit programs for income maintenance (often called “General Assistance” in the state context, but which may exist under other names)
Supplemental Nutrition Assistance Program (SNAP, or formerly called “Food Stamps”)
Section 8 Housing Assistance under the Housing Choice Voucher Program
Public Housing under section 9 the Housing Act of 1937, 42 U.S.C. 1437 et seq.
Federally funded Medicaid (with certain exclusions)
Note that DHS has stated that non-cash benefits are
generally not taken into account for the public of a public charge
What are some examples of non-cash benefits that are NOT CONSIDEREDpublic charge under this new rule?
Non-cash or special-purpose cash benefits are generally supplemental in nature and do not make a person primarily dependent on the government for subsistence. Therefore, past, current, or future receipt of these benefits do not impact a public charge determination. Non-cash or special-purpose cash benefits that are not considered for public charge purposes include:
Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases; use of health clinics, short-term rehabilitation services, and emergency medical services) other than support for long-term institutional care
Children’s Health Insurance Program (CHIP)
Nutrition programs, including Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs
Child care services
Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP)
Emergency disaster relief
Foster care and adoption assistance
Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary, or higher education
Job training programs
In-kind, community-based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter)
and local programs that are similar to the federal programs listed above are
also generally not considered for public charge purposes.
has DHS said it will not consider when determining eligibility?
DHS clarified it will only apply the rule when the
applicant received the benefit him or herself or where the applicant is the
listed beneficiary of the public benefit. DHS will not attribute receipt of
public benefit by one or more members of the applicant’s household to the
applicant unless the applicant is also a listed beneficiary of the public
In other words, if your family member is participating in Medicaid, if your child is receiving Medicaid, or if your family members is receiving supplemental security income, this will not be counted against you in your application. This rule only applies if you receive this public benefit as well.
In making this determination, DHS stated it will not
The receipt of Medicaid for the treatment of an emergency medical condition;
Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act;
School-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under state or local law;
Medicaid benefits received by an alien under 21 years of age; or
Medicaid benefits received by a woman during pregnancy and during the 60-day period beginning on the last day of the pregnancy.
period must an immigrant receive public assistance for them to become ineligible
under this rule?
DHS has stated that if the immigrant receives public benefits for
more than 12 months in aggregate in any 36-month period, such that receipt of
two benefits in one month counts as two months.
How will DHS
determine if someone is “likely to become a public charge”?
DHS stated that it must weigh the negative and positive factors
that may contribute to an immigrant’s potential to “likely at any time become a
public charge”. Thus, DHS must consider the applicant’s:
Assets, resources, and financial status;
Education and skills;
Prospective immigration status;
Expected period of admission; and
Sufficient form I-864.
Finally, DHS said the following factors weigh heavily in favor of
finding an immigrant likely at the time to become a public charge:
The immigrant is not a full-time student is authorized to work but cannot show current employment, recent employment history, and a reasonable prospect of future employment
The immigrant has received or has been certified or approved to receive, one or more public benefits for more than 12 months in the aggregate within any 36-month period, beginning no earlier than 36 months before the alien applied for admission or adjustment of status on or after Oct. 15, 2019.
The immigrant has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with his or her ability to provide for him or herself, attend school, or work and he or she is uninsured and has neither the prospect of obtaining private health insurance nor the financial resources to pay for reasonably foreseeable medical costs related to a medical condition.
The immigrant has previously been found by an immigration judge or the Board of Immigration Appeals to be inadmissible or deportable based on public charge grounds.
help an immigrant demonstrate he or she is not likely to become a public
The immigrant has household income, assets, resources,
and support from a sponsor, excluding any income from illegal activities or
from public benefits, of at least 250% of the Federal Poverty Guidelines for
his or her household size.
The immigrant is authorized to work and is currently
employed in a legal industry with an annual income of at least 250% of the
Federal Poverty Guidelines for a household of his or her household size.
The immigrant has private health insurance appropriate for the
expected period of admission, so
long as the alien does not receive subsidies in the form of premium tax
credits under the Patient Protection and Affordable Care Act to pay for
such health insurance.
Are there any
exempt parties to the rule?
are certain groups of people who are either exempt from public charge, or may
get a waiver for public charge when applying for a Green Card or other benefits
with USCIS. These include:
Refugees and asylees applying for
adjustment to permanent resident status
Amerasian Immigrants (for their initial
Individuals granted relief under the
Cuban Adjustment Act (CAA)
Individuals granted relief under the
Nicaraguan and Central American Relief Act (NACARA)
Individuals granted relief under the
Haitian Refugee Immigration Fairness Act (HRIFA)
Individuals applying for a T Visa
Individuals applying for a U Visa
Individuals who possess a T visa and are
trying to become a permanent resident (get a Green Card)
Individuals who possess a U visa and are
trying to become a permanent resident (get a Green Card)
Applicants for Temporary Protected Status
Certain applicants under the LIFE Act
service members who are actively enlisted or serving in the U.S. armed forces
subject to this rule?
No. DHS clarified that this rule does not consider the receipt of
designated public benefits received by an immigrant who is serving actively in
the U.S. armed forces or in any Read Reserve component of the U.S. armed forces
to be part of the group who receives public benefits by spouse and children.
If you are considering adjusting your status or extending or
changing your nonimmigrant visa, you should be sure to have an experienced
immigration attorney by your side to help advise you on the public charge rule
change and ensure your application and the process goes smoothly for you. To
set up an appointment or meet with an experienced immigration attorney, contact
our office at 512-474-4445.
The Austin Police
Department recently released a racial profiling report indicating that when police officers
pulled over black and Hispanic drivers in 2018, they were twice as likely to
search them and their vehicles for contraband, as compared to white drivers
whom they pulled over. Overall, officers searched only 6% of white drivers
during traffic stops, as opposed to 14% of Hispanic drivers and 17% of black
Nonetheless, of the
drivers whom police officers searched, Hispanic and black drivers were only
slightly more likely to be in possession of contraband. These searches resulted
in police finding contraband about 30% of the time, regardless of the driver’s
race. More specifically, the rates of finding contraband were 27% for white
drivers, 30% of Hispanic drivers, and 31% of black drivers during traffic
This report is in
line with previous reports from the Austin Police Department. In 2017, for
example, the report showed that police officers searched Hispanic drivers whom
they pulled over twice as often as white drivers, and black drivers three times
as often as white drivers.
According to the police
chief, part of these numbers may be that the department assigns more officers
to part of the city with high crime rates. These same areas tend to be less
affluent neighborhoods with disproportionately higher numbers of minorities. As
a result, more traffic stops tend to occur in these same areas, which may give
rise to some of the reasoning behind the searches of drivers pulled over during
The Austin Police Department has taken steps in recent years to put all officers through fairness and impartiality training in order recognize and address biases. The Department also provides ongoing training to ensure as much racial equity as possible. The criminal defense lawyers of Peek & Toland have handled the legal defense of countless individuals who are facing criminal charges, including charges involving bribery. We are here to protect your rights and advocate on your behalf in order to get the best outcome possible in your case. Call our office today at (512) 474-4445 to set up an appointment with our criminal defense attorneys today.
All citizens of foreign countries who wish to enter the U.S., either permanently or temporarily, must do so pursuant to some sort of visa. Many types of visas are available, and among those visas is the I visa for foreign members of the media.
According to the U.S. Department of State – Consular Affairs, members of the foreign media, whether representing press, radio, film, or print industries, may use an I visa to temporarily travel to the U.S. to work in their profession. The individuals must be engaged in informational or educational media activities that are essential to the foreign media function. The media organization whose representatives wish to enter the U.S. temporarily on an I visa must have a home office in the foreign country. The activities occurring in the U.S. must be associated with the news-gathering process and reporting on current events.
Examples of individuals who might qualify to travel to the U.S. pursuant to an I visa include:
• Employees of public or private media in foreign countries filming a news event or documentary
• Foreign media members engaged in the production or distribution of foreign films
• Journalists working on news or information stories
• Accredited representatives of foreign tourist bureaus
• Employees of organizations that distribute technical industrial information who will work in the U.S. offices of those organizations
What is an I Visa?
Members of the media generally must have credentials through their countries’ professional journalist association in order to qualify for I visas. Consular officials require individuals to undergo a personal interview before granting an I-visa, with the exception of children under the age of 13, adults over the age of 80, and some foreign media members who are renewing their visas.
No matter the type of immigration issue you are facing, the skilled and knowledgeable immigration lawyers of Peek & Toland are here to assist you. We handle many different types of immigration cases every day and have the kind of strategic experience and skills that are necessary to reach the desired outcome. By calling our office as quickly as possible after your legal issue arises, we will have the best opportunity to successfully resolve your immigration law case.
According to U.S. Citizenship and Immigration Services (USCIS), the Validation Instrument for Business Enterprises (VIBE) program is a web-based tool that is designed to help USCIS more efficiently and uniformly adjudicate certain employment-based immigration petitions and applications. Essentially, VIBE uses commercially available data from Dun & Bradstreet, an independent information provider (IIP) to validate basic information about companies or organizations who are seeking to employ foreign nationals. Some of the information that USCIS receives through the VIBE program includes:
·Type of business
·Financial standing, in terms of sales volume and credit standing
·Number of employees
·Types of offices
·Type of legal entity, date of establishment, and identification of company executives
By having this information immediately available from the IIP, USCIS can avoid having to solely rely on paper information provided by the petitioning company, which may be insufficient, in some cases. USCIS uses this information to ensure that the company is qualified to employ the foreign national as requested.
What is the VIBE Program?
USCIS does not rely exclusively on the information provided by VIBE in making its decisions on employment-based immigration petitions. Rather, it uses the information in conjunction with the information provided by the employer in its application to make decisions. If there are vast inconsistencies between the information provided by VIBE and by the employer, then USCIS will contact the employer to clarify and obtain additional information as needed. Once USCIS receives this information, it will make a decision on the application based on the totality of the circumstances.
While a private U.S. company or organization is not required to update its information with the IIP, Dun & Bradstreet, the company can create, verify, or correct the information that the IIP has. This can help minimizing inconsistences between the data that the IIP provides to USCIS and what the employer provides in its application.
No matter the type of immigration issue you are facing, the skilled and knowledgeable immigration lawyers of Peek & Toland are here to assist you. We handle many different types of immigration cases on a daily basis and have the kind of strategic experience and skills that are necessary to reach the desired outcome. By calling our office as quickly as possible after your legal issue arises, we will have the best opportunity to successfully resolve your immigration law case.
There are circumstances under which you can lose your permanent resident status. One of these circumstances is related to conditional permanent resident status, which is typically based on marriage or a qualifying investment. If, for example, U.S. Citizenship and Immigration Services (USCIS) later discovers that a marriage was fraudulent, they have the right to terminate your conditional permanent resident status.
Permanent Resident Status
If you are placed in deportation proceedings and an immigration court judge issues a final order of removal for you, then you also will lose your permanent resident status. For instance, if you are convicted of an aggravated felony or a crime of moral turpitude, you may be placed in removal proceedings. If the judge orders you removed following a hearing, then you are subject to losing your immigration status.
You also can intentionally abandon your permanent resident status in some cases. This might occur in the following circumstances:
·You move to another country and intend to reside there permanently.
·You remain outside of the U.S. for an extended period of time, unless you intend your absence to be temporary, as shown by:
oThe reason for your trip
oHow long you intend to be absent from the U.S.
oOther circumstances related to your absence
oEvents that may have prolonged your absence (health problems, deaths, etc.)
oObtaining a reentry permit from USCIS before leaving (good for up to two years)
oObtaining SB-1 returning resident visa from a U.S. consulate while abroad
·Failing to file income tax returns while living outside of the U.S. for any reason
·Declaring yourself a nonimmigrant on your U.S. income tax returns
·Choose to abandon your status and voluntarily surrender your green card for any reason
The Peek & Toland immigration lawyers are here to assist you with all of your immigration needs. Trust us to represent your interests and advise you of the best course of action in your situation. Set up an appointment to talk to us today and discover how we can assist you with your immigration case.
While being sentenced to community supervision, or probation, as a result of a criminal offense is certainly preferable to jail, the court still has a significant amount of control over your life. Depending on the terms and conditions of your probation, you typically must report to a probation officer on a regular basis, pay fees, complete a certain number of hours of community service, undergo drug or alcohol testing, and seek permission from your probation officer before leaving the state.
If your probation officer believes that you have violated any of the terms of your probation, then he or she can file a motion to revoke your probation. If you are on deferred adjudication probation, then he or she can file a motion to adjudicate. Regardless of what is called, the results are the same; a motion to revoke or a motion to adjudicate both will result in a warrant for your arrest. After your arrest on a probation revocation, you must appear before a judge within 48 hours. However, only the judge who issued the arrest warrant can set bail for you in a probation revocation.
Probation Violations in Texas
You also have the right to be represented by counsel at a court hearing to determine whether you violated a condition of your probation. This hearing is very important, because it will be your only chance to explain why you don’t believe that you have violated your probation. As a result, contacting an attorney as soon as you believe that you may become subject to a probation violation is crucial.
Some common probation violations may include:
·Being charged with a new criminal offense while on probation
·Failing a drug or alcohol test
·Not reporting to your probation officer as scheduled
·Failing to complete community service hours as ordered
When you are charged with any type of criminal offense in the state of Texas, including probation violations, you need an experienced criminal defense attorney to represent your interests from the very beginning of your case. We are here to evaluate the facts surrounding your case, present your options, and provide you with the strongest defense possible. Contact Peek & Toland at (512) 474-4445 today and set up an appointment to speak with our legal team.
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