Monday, January 11, 2016

NAFTA TN Visas for Canadians and Mexicans

Interesting question that I don't usually field. A fella asked about TN visas in a legal request board. I thought I would include his question, and my answer, here:

I am a Canadian citizen currently in the US on a TN Visa. I have been approached by an Indian software company to conduct business development, sales activities on their behalf. I am wondering if I am legally allowed to do this on a TN visa. Also i want to set up my own business can I do so, and and what is the criteria for doing this.

TN's are designed for NAFTA countries (primarily Canada, it seems...but it could be because I, too, am in DC, so we see a lot more Canadian TN's than from Mexico). It allows professionals from NAFTA countries to freely work and conduct their trade, on a temporary basis, in any NAFTA country. At least, that was the idea. In reality, it acts like a defacto H visa. Generally, to come over here on a TN, you need to have a sponsoring employer. So...who sponsored you? What happened?

Generally, the requirements for TN are:
  • Applicant is a citizen of Canada or Mexico;
  • Profession is on the NAFTA list;
  • Position in the United States requires a NAFTA professional;
  • Applicant will work in a prearranged full-time or part-time job for an employer (see Required Documentation).
  • Self employment is not permitted;
  • Applicant has the qualifications, meeting the specific requirements, education, and/or experience, of the profession.


As a rule, a TN visa holder ought not to be looking to open a business in the US. Nothing against entrepreneurial spirit and all, but because TN's are by nature temporary, you open the door to all sorts of problems should your business happen to be successful (and don't fall into the boat of those that suggest you can bootstrap yourself -- that is, start a business then sponsor yourself for an E or H visa. Down that path leads to pain and creative lawyering). Note that you cannot sponsor yourself for a TN, either (see above list of criteria for TN visas). However, if you are here doing work for the company that brought you in via the TN visa, there is nothing to prevent you from owing an interest in a C corp. Tricky business though (no pun, of course), so talk to us first.

But...bottom line...can it be done? Absolutely! Can you work for another company when you entered on a TN for a different purpose? Sure..come speak with us and we can help. We're in Fairfax/DC, so it's not an issue to chat.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Lili O'connell, Esq.
Charles Hatley, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Wednesday, January 6, 2016

Determining Arriving Alien Status

How to determine if your client is an arriving alien -- or not!

First test: Was she stopped at the border?
Yes: Continue
No: Was she stopped with ~25 miles of the border within 10 days of when she arrived?
Yes: Continue
No: Arguably not arriving alien.


Second test: Is she a US citizen?
Yes: Interesting. If they are moving to revoke citizenship (i.e. not by birth), then you have a pickle. Arguably, not an arriving alien, as only a judge could revoke citizenship and a citizen cannot be an arriving alien. So most likely – not an arriving alien.
No: Continue


Third test: Was she granted conditional parole?
Yes: This is very narrow exception. Humanitarian or CBP approved “signed at the border” parole only. In this instance, she would not have been given a return date, and she would not have been placed in removal proceedings. A deferred inspection is not a parole for this purpose.
No: Continue


Fourth test: LPR?
Yes: Is there a petty exception that the CBP officer will accept? If so, get this kicked at the deferred inspection. If not, she is an arriving alien.
No: Arriving alien


If she is an arriving alien, hope her case get’s randomly transferred to York, PA. In York, the judges oftem grant bond even for arriving aliens (must have a legal place to go in the US, and someone willing to vouch for the alien). Otherwise, you are looking at no-bond initially.

How do I get bond for an arriving alien?
  1. York
  2. If there has been a credible fear determination (either through Court or through CBP), then you can ask ICE to grant a bond. ICE always has the right to grant bond. Talk to the DO (Deportation Officer – fella who is responsible for your client’s case on the ICE side) and request a bond. This usually only works on successful credible fear. If you have a pending asylum application and work permit, you should be able to get this unless your DO is being particularly ornery.


Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Lili O'connell, Esq.
Charles Hatley, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Sunday, December 20, 2015

VA Bankruptcy -- a warning to those filing for the Homestead Exemption

Just a quick post here -- remember that you must file your notice of homestead election (VA) with the circuit court in the County were the debtor resides. This must be done by the fifth day after the meeting of creditors. See VA Code §34-17. If you fail to do so, the trustee will file to disallow your exemptions, and you'll be stuck arguing about the applicability of farm tools (the only thing excluded from the mandatory filing requirement!).

Conversely, the exemption of wages from the debtor's bank account is not subject to a homestead filing. The maximum allowable deduction from a debtor's personal account, when the monies therein stem from payments for work done, is 25% (limit of max garnishment in VA). Be prepared to argue "source of funds." See VA Code §34-29.

The format to file with the circuit court is:

NOTE: There is a difference between personal property and real-property. Be sure to indicate the filing when making it -- or use both if combining different exemptions!


See VA Code §34-14 (Personal Property)

HOMESTEAD DEED FOR PERSONAL PROPERTY
Name of Householder ____________________________________________

Is the householder a disabled veteran entitled to claim the additional exemption under § 34-4.1?

Address of Householder _________________________________________

Name(s) and age(s) of dependent(s) _____________________________

County/city in which householder resides _______________________

Description of property claimed as exempt and its value
________________________________________________________________

Number of homestead deeds that have been filed by the Householder
________________________________________________________________

Exemption amount previously claimed on prior homestead deeds
________________________________________________________________

List the jurisdictions where previous homestead deeds were filed
________________________________________________________________

________________________________________ (Signature of Householder)

STATE: COUNTY: This document was acknowledged before me by _______________________ or _______________________.

Signature of Notary:
Printed Name of Notary:
My commission expires:
My commission ID:


See VA Code §34-6 (Personal Property)

HOMESTEAD DEED FOR REAL PROPERTY
Name of Householder _______________________________________________
Name of title holder of record (if different) _____________________
Is the householder a disabled veteran entitled to claim the additional exemption under § 34-4.1?
Address of Householder ____________________________________________
Name(s) and age(s) of dependent(s) ________________________________
County/city/state in which real property claimed as exempt is located
___________________________________________________________________

Description of property claimed as exempt _________________________
___________________________________________________________________

Value of property described above _________________________________

Number of homestead deeds that have been filed by the Householder
___________________________________________________________________

Exemption amount previously claimed on prior homestead deeds
___________________________________________________________________

List the jurisdictions where previous homestead deeds were filed
___________________________________________________________________

________________________________________ (Signature of Householder)



STATE: COUNTY: This document was acknowledged before me by _______________________ or _______________________.

Signature of Notary:
Printed Name of Notary:
My commission expires:
My commission ID:


Do you have a question about bankruptcy law? We practice in many different Federal jurisdictions -- we would be glad to chat with you about your questions and your case. 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Lili O'connell, Esq.
Charles Hatley, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Overstaying Your VISA: duration-of-stay (D/S) stamp on the I-94 offers a way out

Just a quick footnote. I was speaking with a client today about her son who was out-of-status and had been since 2013. She was an LPR, but he was bum out of luck. Or was he? He arrived in the US with his parents in 1997 under the J2 category. Duration was "D/S". Everyone else adjusted, however, he did not. What relief does he have?

Turns out, he has quite a bit. Because he never received any notice from USCIS, or a judge, that the duration was expired, he is out-of-status, but has not accrued unlawful presence. What, you say!? The actual USCIS memo dealing with this is entitled: "Period of stay authorized by the Attorney General after 120-day tolling period for purposes of section 212(a)(9)(B) of the Immigration and Nationality Act (the Act)" written by then Executive Associate Commissioner for the Office of Field Operations, Michael A. Pearson (2000). In pertinent part, it reads:

(2) Counting of Unlawful Presence for Nonimmigrants. An alien who remains in the United States beyond the period of stay authorized by the Attorney General is unlawfully present and becomes subject to the 3- or 10-year bars to admission under section 212(a)(9)(B)(i)(I) and (II) of the Act. Under current Service policy, unlawful presence is counted in the following manner for nonimmigrants. (A) Nonimmigrants Admitted until a Specific Date. Nonimmigrants admitted until a specific date begin accruing unlawful presence on the date the period of admission authorized by the Service expires, as noted on the arrival document issued at the port-of-entry. (B) Nonimmigrants Admitted Duration of Status (D/S). Nonimmignants admitted to the United States for D/S begin accruing unlawful presence on the date the Service finds a status violation while adjudicating a request for another immigration benefit, or on the date an immigration judge finds a status violation in the course of proceedings. If, however, the immigration judge concurrently issues voluntary departure and the alien complies with the order by making a timely departure, no unlawful presence accrues. See sections (d)(2) and (d)(5) of this chapter regarding voluntary departure as a period of stay authorized by the Attorney General.


Use this information to jam unlawful presence arguments when applying for various USCIS status changes for D/S candidates.

Note that D/S is valid even if served an NTA, as only an immigration judge can stop the duration of the stay - i.e. a mere notice of filing does not trigger a break in lawful presence. Remember, though, that lawful presence is not the same as legal status.

Do you have a question about immigration law? Contact us at 703-402-2723 or 1-800-579-9864. We are here to help!

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Lili O'connell, Esq.
Charles Hatley, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Monday, December 14, 2015

Types of Asylum and how to claim them

A fellow practitioner asked me a question today, and I think it merits explaining in the blog:
Do you know what the process is for seeking relief at a USCIS asylum hearing for relief under the Convention Against Torture? We have a hearing on December 29 at Arlington.

This is a great opportunity to discuss the different "tiers" of asylum relief. The following is taken from the IJ Bench Guide referencing asylum (Benchbook)

1. The first is straight-up asylum. That requires only a showing of a “well founded fear” of future persecution – not a very stringent showing. The fear is based on being part of a protected group, having suffered some kind of persecution or loss (or a well founded fear of future prosecution), and now the fear. An asylum applicant may demonstrate that he is a “refugee” in either of two ways. First, he may demonstrate that he has suffered past persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA § 101(a)(42)(A). Second, he may demonstrate a well- founded fear of future persecution on account of a protected ground through credible testimony that he subjectively fears persecution and that his fear is objectively reasonable. In mixed motive asylum cases, the REAL ID Act of 2005, requires an applicant to prove that race, religion, nationality, membership in a particular social group or political opinion was or will be at least one central reason for the claimed persecution. Section 103(a)(3) of the REAL ID Act of 2005 , Div. B of Pub. L. 109-13, 119 Stat. 302,303; In J-B-N & S-M-, 24 I&N Dec. 208 (BIA 2007).

2. “Withholding” is the next rung. That requires a showing of a “clear probability” that the applicant will suffer severe harm if returned home. Where asylum (rung 1) can be somewhat objective, withholding and CAT are both objective and are based on the actions of the home country. As with asylum, a threshold determination must be made as to the credibility of the applicant for withholding of removal. INA § 241(b)(3)(C); see also INA §§ 1208(b)(1)(B)(ii) and (iii). A claim for withholding of removal is factually related to an asylum claim, but the applicant bears a heavier burden of proof to merit relief. For withholding, the applicant must demonstrate that, if returned to his country, his life or freedom would be threatened on account of one of the protected grounds. INA § 241(b)(3). To make this showing, the applicant must establish a “clear probability” of persecution, meaning that it is “more likely than not” that he will be subject to persecution on account of a protected ground if returned to the country from which he seeks withholding of removal. Cardoza-Fonseca, 480 U.S. 421. The applicant’s credible testimony alone may be sufficient to sustain this burden of proof. 8 C.F.R. § 1208.16(b). If an alien demonstrates that s/he suffered past persecution in the proposed country of removal, the burden shifts to the Department to demonstrate that a fundamental change in circumstances has occurred in that country or that the applicant could safely relocate to another area in the proposed country of removal. 8 C.F.R. § 1208.16(b)(1). There is no discretionary element. Therefore, if the applicant establishes eligibility, withholding of removal must be granted. INA § 241(b)(3). Additionally, there is no statutory time limit for bringing a withholding of removal claim.

3. The final rung is “CAT”. Here, the applicant must show that the government will kill them, or members of society that the government cannot control, will kill them, if they return. There must be a showing of protected group, usually some form of proof as to past prosecution, and the clear likelihood that death or severe harm will follow. The applicant for CAT relief bears the burden of proof. 8 C.F.R. §1208.16(c)(2). As with asylum adjudications, the applicant’s testimony, if credible, may be sufficient to sustain the burden of proof without corroboration. Id., see also Matter of Y-B-, 21 I&N Dec. at 1139. However, if the applicant’s testimony is the primary basis for the CAT claim and it is found not to be credible, that adverse credibility finding may provide a sufficient basis for denial of CAT relief. In assessing whether the applicant has satisfied the burden of proof, the Court must consider all evidence relevant to the possibility of future torture, including evidence that the applicant has suffered torture in the past; evidence that the applicant could relocate to a part of the country of removal where he is not likely to be tortured; evidence of gross, flagrant or mass violations of human rights within the country of removal; and other relevant information on country conditions. 8 C.F.R. § 1208.16(c)(3)

In answer to your direct question – because your fella qualifies for asylum, and that claim is the easiest of the three to prove, and further, because the protected classes in CAT (rung 3) are the same as in asylum (rung 1), an application for asylum necessarily covers the CAT claim. The major difference is this – asylum is discretionary. However, if your fella can prove he will be killed or severely harmed (tortured) if he returns, USCIS cannot return him. Note, though, that a grant of CAT is only a deferral of deportation. It grants no rights, and you cannot adjust out of it. Asylum is a much better option.

Do you have an asylum question? Call us! We can help! 703-402-2723 or 1-800-579-9864.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Lili O'connell, Esq.
Charles Hatley, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Federal Court filing deadlines/timeframes

This is a handy chart for determining filing deadlines for Federal Court actions. Original source: Civil time computation rules.

Federal Rule of Civil Procedure Time Period to Respond
   
FRCP 6 ( c ) -motion and notice served 14 days
prior to the hearing  
supporting affidavit served 7 days
   
FRCP 12 answer due 21 days
answer to counterclaim/crossclaim 21 days
reply to answer ( if ordered)  
if court denies a Rule 12 motion, answer 14 days after notice
due  
if court grants more definite statement motion within 14 days
answer to more definite statement 14 days after
   
motion to strike a defense to be filed 21 days
   
FRCP 14 filing third party complaint without 14 days
Court leave to file  
   
FRCP 15 amendments for pleading with no  
responsive pleading allowed within 21 days
response to amended pleading within 14 days
   
FRCP 23 Class action appeal filed with circuit within 14 days
   
FRCP 27 notice of hearing served on adverse 21 days
party  
   
FRCP 32 limit on use of depo taken with less than 14 days
short notice  
Objection to written question waived if not within 7 days
served  
   
FRCP38 jury demand no later than 10 days  
after last pleading directed to the issue no later than 14 days
filing demand for additional issues within 14 days
   
FRCP 50 judgment as a matter of law 30 days
   
losing party's new trial motion 30 days
   
FRCP 52 motion to amend findings 30 days
   
FRCP 53 objections to report of special 21 days
master  
   
FRCP 54 (d) clerk tax costs notice to pty 14 days
FRCP 54 motion to review clerk's taxation 7 days
   
FRCP 55 - hearing for entry of default  
jgm against minor or incompentent pty 14 days
   
FRCP 59 ( c ) motion for new trial no later than 30 days
   
opposing affidavits 14 days
court sua sponte order new trial 30 days
motion to alter or amend judgment 30 days
   
FRCP 62 automatic stay 14 days
   
FRCP 65 TRO expiration 14 days
   
   
move to dissolve no change
   
FRCP 68 Offer of Judgment 14 days
acceptance 14 days
   
FRCP 71.1 Service of answer in condemnation  
cases 21 days
   
FRCP 72 Objections to R & R 14 days
Response to Objections 14 days
   
FRCP 81 Serving answer to removed case within 7 days
or after initial service 21 days
or after summons 21 days
filing of jury demand in removal 14 days
   
   
Supplemental Rule B  
maritime garnishee answer 21 days
Supplemental Rule C  
filing notice of right or interest 14 days
filing of answer after filing statement 21 days
of interest  
Release of property after bond posted 14 days
Supplemental Rule G  
answer filed 21 days
   

Are you facing a Federal lawsuit? Call us! We have considerable experience handling complex litigation in federal, bankruptcy, and federal administrative cases. 1-800-579-9864.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Lili O'connell, Esq.
Charles Hatley, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Thursday, December 10, 2015

Regulations on Inadmissibility Criteria

This is a quick and dirty handy cite list for inadmissibility codes and regulations for immigration applications and proceedings:
INA § 212(a)(2)(A)(i)(I) Crime involving moral turpitude
INA § 212(a)(6)(A) Present without permission (one EWI, then stayed)
INA § 212(a)(6)(B) Failure to attend removal proceedings
INA § 212(a)(6)(C)(i) Willful misrepresentation of a material fact to get an immigration benefit
INA § 212(a)(6)(C)(ii) False Claim of US Citizenship
INA § 212(a)(6)(E) Alien smuggling
INA § 212(a)(7)(B)(i) Passport: none or expired
INA § 212(a)(9)(A) Previously ordered removed
INA § 212(a)(9)(B) 1 year unlawful presence, followed by illegal reentry (10 year bar)
INA § 212(a)(9)(C) Entry without inspection after immigration violation (perm bar)
INA § 212(a)(2)(D)(i) Prostitution: has engaged in prostitution within 10 years of application
INA § 212(a)(2)(D)(ii) Prostitution: has tried to procure a prostitute within 10 years of application
INA § 212(a)(1)(A) Health condition creating danger to self or others
INA § 212(a)(1)(A)(iv) Drug Abuser
INA § 212(a)(4) Public Charge

Special thanks to Ms. Sara Dunsky, Esq., an accomplished member of my AILA (American Immigration Lawyers Association) group, who posted this handy consolidated list. Well done, Ms. Dunsky!

Do you have an immigration question? Give us a call -- we can help! 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Lili O'connell, Esq.
Charles Hatley, Esq.
1-800-579-9864 admin@hanoverlawpc.com