An immigration Judge in San Francisco, CA, ruled to stay a deportation order for an undocumented Mexican immigrant, who was awaiting the processing of his application to immigration services (USCIS) for a Green Card and permanent residence.

The man had previously wed his US citizen partner in a Civil Union in the State of NY, where same-sex marriage is legally recognized. They are registered domestic partners California, living in the San Francisco Bay area.

His supporters assert that none of this would be an issue if the couple were married (and opposite sexes.)

The USCIS does not recognize same-sex marriages although the law is currently being challenged on constitutional grounds. A ruling is expected this summer but is certain to attract controversy, whatever the outcome.

The man was brought to the US, as a child by parents, whom are now applying for their US citizenship.  The man could be eligible for legal status should the administration pass legislation in support of the DREAM Act.

Authorities learned of the man’s illegal status during a routine traffic stop in July 2011 and if deported from the US, faces a 10 year re-entry bar.

There are multiple non-immigrant visas under which dual intent is recognized by the U.S. Citizenship and Immigration Services (USCIS). Dual intent is a legal concept that describes people who maintain a proper non-immigrant status now, but intend to immigrate to the U.S. in the future. Although the eligibility and evidentiary requirements for the O-1 visa for individuals with extraordinary abilities or achievements in certain areas are strict, if non-immigrants apply for and are granted the O-1 visa, the dual intent doctrine applies.

Importantly, holders of O-1 visas are now allowed to seek permanent resident status without violation of the duel intent immigration guidelines. Most holders of non-immigration visas have problems when they seek change to permanent residence, as it can violate their existing status. Until recently, this was the case with holders of O visas. This is no longer the case and the O visas now permit duel intent.

What Is an O-1 Visa?

Under the O-1 visa, people recognized nationally or internationally for their extraordinary abilities in certain areas like the sciences, arts, education, business or athletics are eligible for non-immigrant status in the U.S under the O1-A classification. Those individuals with special achievements in the motion picture or television industry are labeled as O1-B and may also qualify for an O-1 visa. If O-1 non-immigrants have workers who must accompany them, they are classified as O-2 individuals and their spouses or children are labeled as O-3.

Who Is Eligible?

People staying in the U.S. on a temporary basis to work in the specialized areas of their extraordinary abilities can apply for an O-1 visa. O-1 visa applicants must demonstrate their extraordinary abilities in the fields of science, education, business or athletics by proving they are part of the few with their high levels of expertise. Those with extraordinary abilities in the arts, motion pictures or television must show their distinction through evidence of skills or recognition, which establishes their prominence as far above others in their fields.

What Evidence Is Needed to Qualify?

Petitioners for the O-1 visa generally must submit recommendations from peer groups or representatives about their areas of expertise, copies of employment contracts from employers and itineraries describing events or activities occurring during a stay. Previous qualifying employment can be anywhere in the world as long as it is in a position of extraordinary ability. O-1-A and O1-B applicants must also provide evidence of nomination or selection for internationally-recognized awards, like the Nobel Prize or an Academy Award, or three other minor achievements, like scholarly publications or proof of reviews or performances in the media.

Who Can Help With the O-1 Process?

The process to apply for and receive an O-1 non-immigrant visa can be overwhelming at first, whether or not an O-1 applicant intends to stay in the U.S. beyond the temporary period granted to under this visa. It can also become more complex when petitioners require workers or family members to accompany them. It is important to consult an experienced immigration attorney before petitioning for an O-1 visa, so that the application contains the required information needed for timely processing and approval.

If you are an individual with an extraordinary ability in one of the O-1 visa fields and you have an opportunity for employment in the U.S., contact an immigration attorney immediately to discuss this visa’s requirements.

What is a priority Date?

Priority date is the date that an alien initially files his case to USCIS by applying for an immigrant visa. For a family based petition, the priority date is the date the Alien Relative Petition (Form I-130) was filed. For employment-based applicant, the priority date will be the date a Petition for Alien Worker (Form I-140) was filed.

What is a cut-off date?

Every month the State Department publishes a monthly visa bulletin based on the priority date to regulate who is eligible to adjust to permanent status or Consular Processing. On the list, the State Department provides a date for each category of preferences for the family-based and employment-based immigrant applications. This date is the cut-off date.

What is the point of the priority dates and cut off dates?

The priority date and cut-off date determines when an alien can file an application to adjust to permanent resident. If the priority date is earlier than the cut-off date, the alien can apply for his green card. If the alien’s priority date is after the cut-off date, the alien has to wait until his priority date becomes current before the alien can apply for his green card.

Who needs to know about the priority date?

The priority dates affect those aliens who belong to one of the four preference categories in family-based petitions. They are:

1^st  Category :  Unmarried Sons & Daughters of Citizens

2^nd  Category:  Spouses & Children, and Unmarried Sons and Daughters of  Permanent Residents

3^rd  Category:  Married Sons & Daughters of Citizens

4^th  Category:  Brothers & Sisters of Adult Citizens

The priority dates also affect those aliens who belong to one of the five prefence categories in employment-based petitions. They are the following:

1^st  Category :  Priority Workers

2^nd  Category: Professionals Holding Advanced Degrees or Persons of Exceptional Ability

3^rd  Category:  Skilled workers, Professionals and Other Workers

4^th  Category:  Certain Special Immigrant

5^th Category:  Employment Creation

Who does NOT have to worry about Priority Dates?

Immediate family members of U.S. citizens do not have to worry about priority dates and are not subject to the annual immigrant visa quota. Immediate family members include spouses, parents and unmarried children under the age of 21 of U.S. Citizens.

Where do I find the Visa Bulletin

Every month, the State Department posts a new visa bulletin with the updated priority dates. You can access the bulletin at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

This will have the most current bulletin as well as past monthly visa bulletins.

EDITORS’ NOTE During his 20-year career as an attorney, Philip Teplen has represented thousands of individual, corporate, and institutional clients in the United States and internationally in the resolution of U.S. immigration issues and associated legal matters. A regular contributing expert on immigration issues to national and international media, Teplen has been a member of the American Immigration Lawyers Association since 1984, and was admitted to the New York State Bar in 1983. He holds a J.D. from Brooklyn Law School, a B.S. degree in business administration from George- town University, and completed graduate studies at the Oxford University Centre for Management Studies.

COMPANY BRIEF Founded in 1983 and based in New York, Teplen & Associates, PLLC, assists companies and individuals with the legal requirements surrounding relocation to the United States, on both a temporary and permanent basis. Its wide- ranging practice covers such areas as non-immigrant and immigrant visas, family petitions, labor certifications, employment authorization, investment, J-1 waivers, deportation defense, asylum applications, naturalization, and employer compliance.

Your law firm helps companies bring employees into the United States from other countries. Did this process become more difficult after 9/11?

Yes, it did. The Patriot Act and the country’s enhanced protectionism have increased the level of scrutiny applied to immigration issues. Unfortunately, this is hamstringing a lot of economic growth in the United States. One problem is a reduction in the number of H visas being granted. An H visa can be issued quickly for up to six years to a foreign professional with the equivalent of a U.S. bachelor’s degree or higher. In 2003, Congress reduced the quota of allowable H visas by two-thirds, with a view to encouraging U.S. industry to hire from within and thereby lower the unemployment rate. However, a lot of businesses are instead seeking alternative visas for foreign workers or are outsourcing a proportion of their work abroad.

How does your company help businesses address these issues?

The help we provide depends on the nature of each individual company. If the company is multinational, we look at how it can balance human resources between its U.S. and non-U.S. offices. In that regard, we would help the company develop plans to move people with relative ease – for example, by creating visas under the L category. L visas are for intra-company transferees and are an important immigration tool for multinational companies. Another useful visa is the E visa for employees and entrepreneurs with specialized knowledge who are transferred for the purpose of supervising an investment.

You mentioned a growing trend toward outsourcing. In terms of economic growth, is this a positive or negative development?

In my view, outsourcing causes a number of problems. Many people believe that outsourcing is a way to save money. In reality, outsourcing is often quite expensive. A company has to create a middle layer of management in the United States, to manage the outsourced office. Staff abroad is never as well trained or knowledgeable about the company as staff working in the home offices. And because of the different time zones, you can never manage them in real time. Plus, outsourced labor has a higher attrition rate, so you are constantly retraining your outsource employees. Accordingly, I believe that by outsourcing work, U.S. companies are actually bidding up the cost of foreign labor. So, in many ways, outsourcing is an expensive and short- sighted option.

What advice would you give to the heads of human-resources departments in major corporations, who have to work within the current regulations?

It certainly helps to think strategically and plan ahead, and to work with various departments within the corporate structure to better define human-resources needs and determine what skill sets are required.

Compliance is another area that deserves attention. As part of the increased focus on homeland security, I foresee that immigration officials will carry out more audits of corporate personnel records to make sure that employers are hiring people who are in the country law- fully. As such, human-resources departments need to stay on top of the paperwork. It is not necessary to file documentation with the government, but they do need to maintain it in their office, in what is called a “public folder” for review by the government if required. If that material is either not there, or not prepared properly, civil – and possibly criminal – penalties may apply. So it’s prudent for human- resources departments to carry out annual audits of their personnel records, just as a company would audit its accounts.

Is your firm able to assist in that process?

Absolutely. There’s value to be gained from employing the services of an independent expert who can provide verification and compliance. That helps companies stay lawful, and it helps in their reporting to stockholders. And, in the event of a government audit, it’s very useful to be able to produce the proper documentation, to show that the corporation has done everything in its power to maintain compliance.

After having been ordered deported and having been physically removed from the United States, deportation is reversed. Individual was ordered removed from the United States and after having submitted himself to the custody of the Bureau of Citizenship and Immigration Service (then the Immigration and Naturalizations Service) he was placed on a plane and sent back to his home country.

This entire process was completed in less then two days time and as such denied him his right to a trial. As the actions taken by the Government were in violation of his due process rights, the Law Offices of Teplen & Associates, P.L.L.C. was able to arrange for his immediate return to the United States and for the eventual termination of his removal proceedings which will allow him to become a lawful permanent resident.

Teplen & Associates PLLC successfully wins an appeal for a denial on a foreign residence requirement waiver. The client (a Spanish national) sought to stay in the United States for the sake of his young disabled child (a United States citizen). To uproot the young child with his specific medical needs would have been extremely detrimental to the child’s well-being.

At Teplen & Associates PLLC, we zealously fought for the client and his child explaining the extreme medical hardships the young child would be forced to endure if the client returned to Spain. Teplen & Associates triumphs with an appeal on the denial. The client is granted the waiver and can now apply for his green card. His child can also have the appropriate medical assistance he needs in the United States.

Once again the Development, Relief & Education for Alien Minors Act has been introduced into the Senate and the House of Representatives. Commonly referred to as the DREAM Act, it would provide a path to U.S. citizenship for undocumented aliens who attended High School in the U.S.

To be eligible, a student must have resided in the U.S. for a minimum of five Years and be over the age of sixteen and under the age of Thirty.

Conditional Legal status will be given to those students who have completed high school, obtained a GED and are admitted to an Institute of Higher Education.

Conditional Status will last six years.

If during the six years the, student obtains a college degree, completes two years of a four year course or serves two years in the military then he or she is eligible to apply for Permanent Legal Residence (a Green Card.)

“Snakehead” smuggles child into the United States. Chinese national fled from his home in China with the assistance of a Snakehead, a person who arranges to smuggle a person out of his country into the United States. This practice is illegal and typically comes with extremely harsh repercussions from the Bureau of Citizenship and Immigration Services. According to United States law, entering the United States without inspection, or on a false passport, is grounds for an automatic denial for all applications for any immigration benefit. In this case, the Law Offices of Teplen & Associates, P.L.L.C. was able to prove to an Immigration Judge that the actions taken by the smuggler should not adversely affect the child who although a teenager, did not possess the knowledge or understanding to commit visa fraud. As such, through our efforts, the Court allowed the child to adjust status and become a lawful permanent resident.

In recent months, many “Green Card” holders, with criminal convictions, have met with immigration problems at airports and other U.S. entry points.

Since the consolidation of the national database of criminal records with those of the Department of Homeland Security, immigration officials now have access to criminal records, that they were not able to access previously.  Many lawful permanent residents whom have, perhaps, made several trips abroad since their criminal case was concluded, are now encountering problems re-entering the U.S. after foreign travel. “Green Card” holders with criminal cases concluded perhaps 10 or even 20 years earlier are now the unsuspecting targets of immigration officials, who have the authority to detain or deport them.

An all too familiar scenario is that of the individual who, not only had been a permanent resident for over 20 years, but was married to a U. S. citizen. After being convicted for the intent to sell narcotics and 10 years after serving out his sentence, the individual was stopped by an immigration official and questioned about the crime.  Although he had in the past, made several trips to his home country without encountering a problem, the immigration office decided to keep his Passport and “Green Card.”

Several months later, the individual receives an appointment notice from immigration to retrieve his documentation. Instead he was taken into custody, spending several months in a Federal detention facility before being deported. The individual now needs emergency legal help, which may have been avoided if advance, legal assistance was sought.

This terrifying situation is becoming an increasingly common event.

A prior history of safe, unrestricted travel no longer guarantees safe travel in the future.

It is important to remember that all cases are different and that different crimes will have different immigration consequences. If you have a criminal history and you are not a United States citizen, please consult with a qualified immigration attorney to review your case.

Marriage to a U.S. citizen is one of the fastest ways to obtain legal permanent residence or “Green Card” and generally allows for the rapid issue of employment authorization.

In some cases, marriage to a U.S. citizen is also considered a strong defense to deportation and removal proceedings.

However, under the Alien Fraud Marriage Act of 1986, the immigration service (USCIS) must be satisfied that the marriage is a real and genuine Union. The applicants must prove that they married in order to establish a life together; that the primary purpose of the marriage was not to secure immigration benefits.

The USCIS always takes the position, that marriages are initially presumed to be fraudulent and that the applicants had ONLY married to receive the immigration benefit.

Accordingly, the burden of proof to establish the bona fides of the marriage falls upon the applicant. Never at any point does USCIS have a responsibility to investigate any aspect of the application, in order to determine if the marriage is real and genuine.

The burden of proof is established through a series of questions posed at an interview, in addition to the presentation of documentary evidence. The couple may be interviewed together or separated, and questions posed to them, individually

If the applicant does not satisfy this burden of proof, then the application is denied. It is therefore, extremely important that applicant is as prepared as possible.

An experienced attorney can assist in this task, both preparing the application correctly and also advising the applicant, as to what kind of documents should be brought to the interview, to increase the likelihood of success.

In instances where the marriage is(less than two years old, the individual is granted a two-year conditional residency. Prior to the end of this two-year period, an application is made to remove the condition.

Three years after the applicant is granted permanent residence status or “Green Card”, the individual may apply for U.S. citizenship.