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Boston Immigration & Naturalization Law Blog

Local law enforcement refusing to honor ICE requests

Local law enforcement agencies in Massachusetts and across the United States have reportedly been denying requests by federal immigration authorities to hold jailed immigrants past their scheduled release dates. In 2014, agents have filed approximately 105,000 requests for a 48-hour holding period, and several thousand have been denied by local agencies.

Immigration officials reportedly want immigrants who are in jail for criminal offenses to be held for as long as 48 hours after they are eligible to be released. During this time period, the individuals would be transferred into the custody of federal agents, and deportation proceedings would be able to begin. Authorities are increasingly deciding to release immigrants back to their communities rather than hand them over to Immigration and Customs Enforcement agents.

Hardships faced by U.S. nationals

Massachusetts residents may be interested in a pending legal challenge by Samoans living in the U.S. over full citizenship rights. For Samoans, rights are limited. This has led to a debate in Samoa over whether U.S. citizenship should be granted to them.

Samoans are given a U.S. passport. However, on the back page of the document, it reads that the holder is a U.S. national, not a U.S. citizen. This confers different status upon the holder. For instance, U.S. Samoans are not able to vote, get government jobs or own concealed weapons. Although Samoans are able to go through the naturalization process and become citizens, they question why it is necessary since individuals born in territories such as Guam and the Northern Mariana Islands are given American citizenship at birth.

How can a permanent resident bring family to the U.S.?

Immigrants who hold permanent residency in Massachusetts may be interested to learn how they can help their relatives overseas to enter the country. A permanent resident, also called a green card holder, is entitled to petition for their spouse, parents and unmarried children under the age of 21. After a successful petition, the permanent resident's qualifying family members would be allowed to enter the United States and obtain their own green card.

Whether the family member is inside or outside of the United States, the permanent resident must submit Form I-130, Petition for Alien Relative, to begin the process. If the family member qualifies, they will be placed in a 'family preference category" while waiting to become a permanent resident of the United States. Because the number of relatives that are allowed to immigrate each year is limited, a qualifying family member would have to be on a waiting list before being approved for a family preference visa.

Ugandan LGBT activist settles in Massachusetts

The timing of a trip to Massachusetts proved fortunate for a prominent Ugandan gay rights advocate. According to reports, the man was visiting the state to spread word about the persecution of the LGBT community in his home country when the Ugandan government passed draconian legislation outlawing homosexuality. While the advocate had not intended to remain in the United States, the new law convinced him to apply for asylum. A gay rights advocacy group later announced in September that his application had been approved by immigration authorities pending a routine background check.

Individuals may be granted asylum in the United States if they have a legitimate fear of persecution in their home countries based factors such as race or religion. There is expected to be a surge in the number of people seeking asylum from countries that have passed anti-homosexuality laws. Approximately 80 nations have adopted such legislation.

Some legal Massachusetts immigrants are unable to work

One issue in the immigration debate that has attracted the attention of many people in Massachusetts is the fact that some legal immigrants are not permitted to work. This situation has become problematic for well-educated spouses of immigrants residing in the country on a work visa. The issue concerns spouses, typically wives, of workers who have an H-1B visa. The spouses have an H-4 visa, which prohibits them from having a Social Security number, having a job or opening a business. Many of the spouses who have these visas are well-educated and willing to work if legally permitted to.

South Asians have 76 percent of the H-4 visas that allow them to reside in the United States because of their spouse's job. Couples in this situation sometimes decide to return to their home countries rather than waiting for green cards. In some cases, the women contemplate moving home without their husbands, a practice discouraged in many Asian cultures.

The requirements for an H-1B visa

Citizens of foreign countries who are interested in living and working in Massachusetts may be interested to learn how they can acquire an H-1B visa allowing them to do so. There are five requirements that must be met before this non-immigrant visa will be issued.

First, the individual seeking a visa must have an employment relationship with a U.S. employer. An employment relationship exists if the employer has the ability to control, pay, direct, hire and fire the individual. Typically, the employer files a petition seeking the H-1B visa on the employee's behalf. The law also requires that the employee work in a specialty occupation that is related to the employee's field of study. Often, a bachelor's degree or foreign equivalent may help satisfy this requirement. Experience and training may in some cases be substituted for a bachelor's degree, as can any state-issued license. Next, the employee must be paid at least the prevailing wage for the position sought in the geographic area where the job is located.

What is an adjustment of immigration status and how do I get one?

Many individuals living in Massachusetts may wonder how they can become an American citizen. An adjustment of immigration status is when a person's status is changed from non-immigrant, or temporary resident, to immigrant, or legal U.S. resident. If the person seeking the adjustment is already in the U.S., they may be able to seek their green card if they meet all of the qualifications. Those who are still in their home country may go through consular processing in order to obtain a visa.

While the process for seeking an adjustment of status appears to be relatively simple, it can be a lengthy process. Someone who wishes to adjust their immigration status must first determine what category they fit into. For example, if immigrants have family members who are U.S. citizens, the family members may file a family-based petition. Immigrant workers may have employment-based petitions filed by their employer on their behalf. Categories for those who sought refugee or asylum status are also available.

Protections for asylum seekers and refugees

Massachusetts residents may not know that the key distinction between individuals seeking asylum and refugees is their location. In general, asylum seekers are already in the United States, while refugees are still in another country. Refugees ask for help from the United Nations while individuals applying for asylum submit a petition for relief to the United States immigration authorities.

Individuals who apply for asylum or refugee status can gain residency status and possibly citizenship if they fulfill specific requirements. An applicant for asylum may also request that immediate family members be included with the application. For individuals to successfully apply for asylum, they must show that they are afraid of persecution in their homeland due to their race, nationality, political opinion, religion or membership in a particular social group. Typically, an individual must apply within a year of his or her arrival in the U.S.. Unlike other types of legal status, applicants for asylum cannot request employment authorization simultaneously with their application for asylum. Instead, they must wait 150 days before the application. Legally, individuals can be detained while they are waiting for their application to be approved. If a person is approved for asylum, he or she can seek permanent residency status a year after obtaining asylum status.

Lawsuits allege immigrants denied rights

While immigrants who arrive in Massachusetts seeking asylum may pass the initial interview at a rate closer to the national average of 63 percent, attorneys for asylum seekers elsewhere in the country argue that a pass rate of only 38 percent at one facility suggests the rights of those immigrants are being violated. At a detention center in New Mexico, officials have been accused of denying due process to asylum seekers. Several immigrant rights groups have now filed a lawsuit.

The groups argue that attorneys traveling to the remote Artesia location are working in law libraries without books and have only limited consultation with their clients. Furthermore, individuals housed at the facilities are permitted phone calls of only five minutes. They are also being made to clean restrooms and discuss violence and rape over closed-circuit television with a judge while their children are present.

Lack of evidence for job skills leads to green card denial

A Massachusetts pizza worker was denied an employment green card after the U.S. Citizenship and Immigration Service received conflicting information about his skills. The pizza restaurant where the man worked had listed showmanship in preparing food including tossing pizza dough as a requirement on its labor certification application, but the business was unable to provide evidence of the individual's qualification in that regard. In fact, the owners and former owners had submitted information stating both that the man could and could not toss pizza dough.

The application was also denied for other reasons. These included a suspicion that the man's marriage was not bona fide, a family relationship between the man and the restaurant's owners suggesting that the job offer was also not bona fide and various problems with the filing including a lack of evidence that the restaurant could pay the man's wages.

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