How America Helps War Torn Families Find Asylum – An Immigration Lawyer’s Take on the Syrian Refugee Crisis

One of the most heartbreaking parts of being an immigration lawyer is hearing the stories of families who have been torn apart by war. As the Syrian conflict continues to affect millions of families and create a humanitarian crisis not seen since World War II, many lawyers take pride in being able to help families set a course toward a new (and legal) life in the U.S.

But as an increasingly fragmented media stokes irrational fears, my job becomes even more challenging—not just when explaining the subtleties of law to clients and critics, but also when operating within a legal system beset with hysterical lawmakers who use the media to stoke the fears of their constituents.

Take for example current Vice Presidential candidate Mike Pence. In early October, the Seventh Circuit Court of Appeals affirmed a decision against him regarding his refusal to release federal funding to aid Syrian refugees admitted legally into his state. Pence argued that the state had a “compelling interest in protecting its residents from the well-documented threat of terrorists posing as refugees to gain entry to Western countries.”

The main problem with Pence’s argument, the court said, was that he provided no such evidence: “Indeed, as far as can be determined from public sources, no Syrian refugees have been arrested or prosecuted for terrorist acts or attempts in the United States.”

The problem is while citizens and lawmakers argue over what might or probably won’t happen, people (many of them women and children) languish in refugee camps in desperate need of action. The best thing I can do as an immigration lawyer in a political environment rife with much vitriol and misinformation, is try to educate people about the facts of the refugee experience.

Syria Refugee Crisis & Asylum Basics

Refugee Basics

A refugee is defined by federal law INA §101(a)(42) as a person who is outside of their country of nationality and unable to return due to a fear of persecution due to race, religion, nationality, membership in a particular social group or political opinion. In some cases, the President of the United States, after consulting members of Congress, can declare persons inside their country of nationality as refugees. What many don’t realize is that achieving refugee status in the U.S., and then being granted asylum, is a tedious bureaucratic process that can take several years.

The Syrian Conflict

In 2011, a series of massive populist protests unfolded across the Middle East in what would become known as the Arab Spring. In Syria, the ensuing government crackdown and subsequent rebellion left the country in bloody turmoil killing hundreds of thousands of innocent civilians and displacing millions.

The Migration Policy Centre, which provides policy-oriented research on global migration, estimates that since the start of the Syrian conflict, 11 million people have fled their homes. The U.S. stated its intention last year to ramp up its efforts and admit at least 10,000 refugees. In September, the White House announced it had exceeded its original goal for FY16 by 2,500.

That figure will likely grow next year. The White House has said it hopes to admit 110,000 refugees from all around the world (up from 85,000 this year). While it’s unclear what percentage of that number might include Syrian refugees, its reasonable to expect more Syrians will be admitted. A recent Washington Post article quoted Ann Richard, assistant secretary of state of population refugees and migration, who indicated the number of Syrians admitted to the U.S. will likely increase.

“This administration has been clear it wants more Syrians,” Richard said. “My guidance is we want to bring even more than we brought this year, without having a target.”

Unfortunately for many refugees, media statements by heads of state belie the complexity of the refugee application process. Suffice it to say, immigration involves more than a sound byte or the mere stroke of a pen.

Applying for Refugee Status

The process begins when a Syrian contacts a U.N. Refugee Agency administered by the U.N. High Commissioner for Refugees (UNHCR). This initial contact between refugee and relief agency might happen in Turkey, Lebanon or even Europe. The UNHCR performs an initial assessment of the Syrian national, including an interview to confirm refugee status and collection of biometrics (iris scans, fingerprints).

A small number of these individuals are referred to the United States Refugee Admissions Program (USRAP), which assists the refugee in the application process to the U.S. The refugee is not admitted to the U.S. at this time, but rather awaits approval of their application while still abroad. This process averages anywhere from 18 to 24 months.

The foreign national will need to fill out a Registration for Classification as Refugee Form, which is filed with US Immigration and Customs Services (USCIS). During this time, multiple federal agencies including the National Counterterrorism Center, FBI and the Department of Defense, conduct an extensive background check on the applicant to ensure that persons admitted to the U.S. are not suspected of terrorist activity.

The foreign national will be interviewed abroad by a USCIS officer. The same agency will then either approve or deny the Syrian’s request for refugee status.

Once approved, U.S. Customs and Border Protection (CBP) conducts its own background check on the refugee. Once the refugee passes CBP, the refugee can enter and have temporary permission to work. A refugee admitted to the U.S. must apply for lawful permanent resident status (green card) one year after coming to the U.S. Once this process is initiated, another round of background checks begins.

More Compassion, Less Fear

People who associate refugees with terrorism don’t realize refugees go through the most rigorous vetting process of any group of travelers to the U.S. While the risk of a person associated with terrorist activity slipping through the cracks is a possibility, the chances are exceedingly small. As John Oliver of the HBO program Last Week Tonight hilariously explained on his show recently, any activity we undertake involves some element of risk.

“As reasonable adults, we accept tiny amounts of risk baked into our everyday lives,” he said. After citing a statistic that cows kill roughly 20 people in the U.S. annually, Oliver exclaimed, “No one is saying we should expel all cows from the country!”

Put simply, Americans have a right to be proud of their country’s status as a world leader and the bravery of its citizens. When looking at the facts, it’s plain to see the benefits of accepting refugees outweigh any perceived risk.

Clinton’s Immigration Plan

Before every presidential election, the chatter about immigration reform reaches a crescendo. Which side of the aisle a politician sits on is usually a good indication of the types of reforms proposed — whether rapid deportation, or new pathways to citizenship.

While the glittering generalities politicians offer prior to election don’t usually manifest as planned once an official is in office, they do give voters a window into how they might conduct business if given the chance. In the case of Hilary Clinton’s Immigration Plan, one doesn’t have to look further than her website to get a sense of where she stands publically on immigration issues.

In simple terms, Clinton’s Immigration Plan aims to “introduce comprehensive immigration reform with a pathway to full and equal citizenship within her first 100 days.”

Hillary Clinton's Immigration Plan

Hillary Clinton’s Immigration Campaign Claims

Here’s a short breakdown of some of Clinton’s claims on the direction she says she’ll go if she wins the election.

She claims she will end the three and 10-year bars: Under current laws and regulations, persons who are unlawfully present in the U.S. can still conceivably obtain lawful permanent status (green card) if they marry either a person who already has a green card or is a U.S. citizen.

However, in order to apply for lawful permanent status, a person living in the country illegally still has to leave the country and apply for a green card abroad. The problem is, once they leave the U.S., they face an automatic bar from returning for three or 10 years. Persons unlawfully residing in the country for less than a year are typically barred from returning for three years. Meanwhile, persons residing unlawfully in the country for more than a year, who leave the country to apply for permanent status abroad, are subject to a bar of 10 years INA §212(a)(9)(B).

Clinton herself has acknowledged that such a dilemma forces immigrants to make a heartbreaking decision to either “remain in the shadows, or pursue a green card by leaving the country and loved ones behind.”

In a televised town hall meeting in Las Vegas in February, Clinton heard from an audience member whose immigrant husband had been barred from reentering the country for a decade. Clinton pledged, under her leadership, this policy would end. “I want to tell you, I will end the three and 10-year bar provision so that you do not have to ever face that again,” Clinton said.

She Will Defend DACA and DAPA: Under President Obama, two policies were announced to provide relief to immigrant families in the U.S. The Deferred Action for Childhood Arrivals (DACA) allows undocumented immigrants who came to the country before their 16th birthday to receive a two-year work permit. They are also exempt from deportation.

Meanwhile, the Deferred Action for Parents of Americans or (DAPA), is a policy intended to allow illegal immigrants who’ve been in the country since 2010 and have children who are either U.S. citizens or lawful permanent residents, avoid deportation. The second policy was announced by the Obama administration in 2014, and was challenged in court by the state of Texas that same year. Although the case went to the U.S. Supreme Court for consideration, it was remanded to a lower court for trial. It’s future remains uncertain.

According to Clinton’s Immigration Plan, she vows to defend both DACA and DAPA. In a recent conference covered by latinpost.com in August, Clinton told a crowd of Hispanic and black journalists that she intends to continue President Obama’s policies on immigration reform.

“I will defend DACA and DAPA while I work vigorously for immigration reform,” Clinton said.

Clinton added during this appearance that she has proposed setting up an office of immigrant affairs in order to provide information and assistance to immigrants and their families.

Is Clinton’s Immigration Plan Feasible?

Whether Clinton’s Immigration Plan delivers on its claims depends on a number of factors, not the least of which includes the direction congress takes this election season.

However, according to Politifact, a website run by the Tampa Bay Times, which seeks to fact check statements made by politicians, Clinton has a well-established record of progressive immigration support.

In 2004, while serving as a senator, Clinton co-sponsored Senator Ted Kennedy’s Safe, Orderly Legal Visas and Enforcement Act. At the time, the American Immigration Lawyers Association applauded the act’s passage calling it a “giant step toward helping this nation achieve the goal of creating an immigration system that reflects our nations’ values, traditions and need.”

In 2003, 2005, and 2007, Clinton also co-sponsored the Dream Act, which gave immigrants brought to the country as children better access to higher education.

While it remains to be seen what she does for immigration reform if elected, it’s a safe bet that Clinton’s Immigration plan will be more welcoming to those seeking a better life in this country than her republican opponent’s plan.

Trump’s Immigration Plan

While Republican presidential candidate Donald Trump’s immigration plan leaves significant questions about funding and logistics, the former reality television star doesn’t mince words when discussing his vision. A quick visit to his campaign website details a 10-point plan for immigration, which seeks to “put America first.”

Topping Trump’s immigration plan is the claim, that if elected president, he will build a wall along America’s southern border with Mexico — a wall that he insists Mexico will pay for. Additionally, Trump’s immigration plan calls for joint law enforcement efforts to immediately deport criminal aliens, as well as suspend the issuance of visas to any place where adequate screening cannot occur. Also included would be biometric tracking systems at U.S. ports of entry, a tripling of the number of Immigration and Customs Enforcement agents. Though he offers scant detail about how to accomplish these goals, his plans for immigration haven’t failed to whip up his base of support.

Trump’s 10 Point Immigration Plan

Because Trump has spent his life primarily working as a businessman and reality television star, and hasn’t held a single political office in his life, it’s difficult to speculate about what he might be capable of accomplishing once in office.

However, when it comes to the first item on his 10-point immigration plan — building a wall along the U.S.-Mexico border — many argue the idea is totally unfeasible. In addition to requiring an act of Congress, such a project would cost billions of dollars, and be mired in the red tape of multiple federal and state agencies. Stretching more than 2,000 miles, the wall would also run through areas that are privately owned potentially, leading to civil suits.

In addition, Mexican President Enrique Peña Nieto has stated unequivocally Mexico will not pay for the wall. Following a meeting with President Nieto in Mexico City, Trump told journalists they hadn’t discussed who would pay for the wall. Nieto added however, that he made it clear during the discussion Mexico wouldn’t be footing the bill.

When it comes to the issue of deportations, and the roundups that would occur, the total figure Trump has offered has fluctuated since he first began his run for president. At rallies around the country, he has discussed rounding up every immigrant in the country illegally, a number as high as 11 million. Currently, his website refers to an immediate deportation of the criminal element of those here illegally. According to a recent Washington Post article, this number could be as high as 6.5 million people.

Donald Trump's 10 Point Immigration Plan

Feasibility of Trump’s Plan

In a 2015 National Public Radio (NPR) piece exploring the feasibility of Trump’s immigration plan; various experts were interviewed about the issue of deportation. Immigration attorney Kerry Talbot, one of the negotiators involved in a 2013 federal immigration bill, dismissed the idea of mass deportation outright.

“That’s just not a solution that is workable,” Talbot said. “It’s not possible to deport 11 million people.”

Talbot added the diversity of the immigrants in the country illegally is something Trump fails to consider.

“You need to look at people’s connections to the U.S., what kind of contributions they’re making. And Trump doesn’t look at any of that. He just wants to deport everyone.”

In addition to covering the cost of conducting mass deportations, Trump’s Immigration plan would also include technological upgrades at U.S. ports of entry capable of acquiring and storing biometric data. All told, Trump’s Immigration Plan would be expensive and thus far, it’s also been scant on substantive details.

Whoever is elected president in November will have their work cut out for them when it comes to immigration reform. For years now, the question of what to do with illegal immigrants, whether summarily deport them, or offer a pathway to citizenship, has been a deeply divisive issue, both in terms of public opinion as well as legislative action.

But if Trump’s immigration plan is allowed to proceed, one thing is very likely: U.S. policy towards immigration will go from a challenging ordeal for countless families, to openly hostile, or worse.

Want to Hire a Canadian? Here are the Steps Employers Must Take to Legally Hire Workers from Canada

More than 20 years on, and the North American Free Trade Agreement (NAFTA) continues to churn the wheels of commerce between Canadian, American and Mexican businesses.  While some lambast the agreement as an exporter of American jobs, and debate its overall contribution to the global economy, it can’t be denied that NAFTA has made it easier for foreign workers to live and work in the U.S.

As an immigration lawyer, I’m often tasked with the duty of helping foreign workers and their employers decide on the best course of action when temporarily coming to the United States for a job-related stay.

With dozens of visas available to workers, some with overlapping criteria and uses, clients can become overwhelmed with the options. In some cases, the H-1B visa is an excellent choice for professionals with special skills who intend to work temporarily in the U.S. But with only a limited number of H-1B visas issued each year, and more applicants that the system can handle, this option can evaporate rather quickly.

Often times, the NAFTA Professional TN visa is the best option, particularly in the case of Canadian professionals.

Want to hire a Canadian? NAFTA TN Professional Visa

NAFTA, A Brief History

The North American Free Trade Agreement was signed into law in late 1993. A product of years of negotiations between Canada, United States and Mexico, the agreement sought to eliminate trade tariffs on goods moving between the three countries. Under the agreement, federal law allows citizens of Canada and Mexico to enter the U.S. temporarily for business-related activates.

The TN visa is granted to foreign professionals engaged in work typically requiring a baccalaureate degree or a credential demonstrating an appropriate level of professional performance. The list of jobs that qualifies a worker for a TN visa includes: management consultants, software engineers, architects, librarians, nurses, geneticists, social workers, and more.

The TN Application Process

In some cases, employers interested in hiring a Canadian professional face less bureaucratic red tape than those hiring Mexican professionals.  Typically, a Canadian citizen isn’t required to visit a US consulate before entering the country, and can apply for his or her TN status at a U.S. port of entry. However, prior to entering the country, a Canadian citizen still needs a letter or contract from the prospective employer detailing the work that will be done. This specifically includes a summary of daily responsibilities of the job. The foreign worker is required to declare the length of stay and produce documentation of educational qualifications (college diploma, certification, etc).

In some cases, the employer will file an Application for Nonimmigrant Worker (Form I-129) through US Immigration and Customs Services. Once this application is approved, the worker can seek entrance to the country.

While some employers are more savvy and experienced than others when it comes to hiring foreign workers, I always suggest that if there’s any doubt about how to proceed, consult an attorney. Filing errors can be costly, time consuming and cause problems down the road.

Once a Canadian worker is granted access to the country, their length of stay varies depending on the type of job being done — usually the initial period granted is up to three years. The foreign national who intends to stay longer than three years will be required to apply for an extension.

Don’t Do It Alone

One of the most satisfying aspects of being an immigration lawyer is helping employers and workers find new ways of contributing to an ever-changing business landscape. Talented foreign workers bring new energy and perspective to the workforce and help businesses grow.  If you have questions about applying for a TN visa or hiring a Canadian worker, feel free to contact our office to see if we can help.

Want to Hire a Foreign Student? Here are the Steps and Restrictions Employers Should Pay Close Attention To

When a foreign student with an F-1 visa comes to the U.S. to study, they often have questions about their eligibility to seek work during their stay. Sometimes they are interested in gaining valuable practical experience, while in other cases, financial hardships make working a necessity. As any employer who’s hired a foreign student can attest, it can be a wonderful experience for all involved.  Young minds from diverse backgrounds can infuse the workplace with fresh energy, enthusiasm and new ideas.

As an immigration attorney, one of the most rewarding aspects of my job is helping people seek a better life through higher education, and get an opportunity to transfer what they’ve learned in a classroom into a professional setting.

But as I tell any employer or foreign student who comes to me for advice, there are certain restrictions placed on foreign visas that limit the types of situations under which a foreign student can work. Unlike employment based visas, like the EB-5 for investors or the EB-3 for skilled workers, you are primarily here to be a student, not a worker, so pay close attention to the restrictions.

The F-1 Visa Work Restrictions

The F1 visa permits qualified foreign students to attend a university, college or other learning institutions such as seminaries and conservatories on a full-time basis. Unlike employment based and immigrant visas, there is no annual cap placed on the number of student visas issued each year. As a result, obtaining an F-1 visa, while still a tedious process, doesn’t come with the same wait time as other visas.

The limitations on foreign students who seek employment during their stay often focus on where and when the student can work. For instance, a foreign student is prohibited from working during the first academic year — typically a period of nine months. Exceptions apply to students who work on campus as well as research students who might be working at an off-site location where the employer is contractually affiliated with the school.

But I tell clients this isn’t always a bad thing. Many on-campus jobs offer great opportunities, especially when the employer is a commercial firm providing services to the campus community.

Wherever a foreign student ends up working during his or her stay in the U.S., when school is in session, the student can only work 20 hours per week. When a student becomes eligible to accept work off campus, usually it must be at a job that’s related directly to the student’s area of study.

Want to Hire a Foreign Student? Here are the Steps Employers Should Take

Off-Campus Work Waiver

In some cases, the rules governing off-campus work are suspended for students hailing from areas of the world affected by natural or man-made disasters. Particularly when such events create severe economic hardship for the student.

Currently, certain Haitian students with F-1 visas affected by the 2010 earthquake can obtain full-time work off campus, even with a reduced course load.

Syrian students affected by that country’s civil unrest are also eligible to work more hours during the school year than other foreign students. In September, US Customs and Immigration Services (USCIS) announced it was expanding the pool of students eligible for this exemption to Syrian students who were in the country under F-1 status between April 3, 2012 and September 9, 2016.

At the time of the announcement, Louis Farrell, director of the Student and Exchange Visitor Program (SEVP) said the goal was to provide some relief to Syrian students affected by years of war.

“We want to ensure that qualifying students from Syria are able to continue their studies without the worry of financial burdens, Farell said. “The changes announced in this notice expand the pool of eligible students.”

How to Hire a Foreign Student

There are two different tracks for hiring students on a foreign visa.

The first is referred to as a curricular training program (CTP). This type of work can be full or part time, but must relate to the student’s area of study. Only full-time students are eligible to apply under this program and an existing offer of employment is required. This offer of work must be demonstrated with a written cooperative agreement or letter from the employer.

Before beginning a job, the student must seek official approval from a Designated School Official (DSO). Sometimes I recommend a student only seek part time work in a CTP situation since full-time work at this level may limit the student’s chances of working in a post graduate training program.

The second type of work program F-1 students can engage in is known as optional practical training (OPT). This type of work must be related to a student’s area of study and can be done after completion of college coursework.  In addition to obtaining approval from a designated school official (DSO), the student must also file an Application for Employment Authorization (Form I-765). This form is filed through USCIS. Once approval is granted, the student can begin work.

Seeking Legal Counsel

While foreign nationals seeking education and employment in the U.S. are free to apply for work on their own, I always recommend a person consider their options with guidance from an experienced immigration attorney. Filing errors can be time consuming and lead to added frustrations for students struggling to focus on their studies. In some cases, certain types of employment can result in the loss of a student’s visa. With help from a qualified attorney, a student can increase their chances of a successful work-study experience.

The Difference Between Citizenship and Naturalization

When researching immigration law, a person doesn’t have to wade deep into the weeds before stumbling over confusing legal terms. Often times, these terms are used casually (and incorrectly) in everyday conversation. Some examples known to cross the wires of otherwise intelligent people include green card and visa, asylee and refugee, as well as citizenship and naturalization. So what is the difference between citizenship and naturalization?

Quick, without looking at your smart phone, what is the difference between citizenship and naturalization?

Put simply, whether a person holds a certificate of citizenship or a certificate of naturalization, they are a U.S. citizen. The key difference is how they arrived at their citizenship. In some cases citizenship happens at birth, whereas the lengthy process of naturalization is usually undertaken by a foreign national.

Difference Between Citizenship and Naturalization | Immigration Attorney

Citizenship

Any person, regardless of being born outside of the U.S., is eligible for citizenship simply by virtue of being born to at least one U.S. citizen parent.  Likewise, a person  born in the U.S. (or one of its territories) to undocumented parents is also considered a citizen, a so-called anchor baby.

During the recent Republican presidential race it was impossible to avoid hearing strident arguments decrying long-held U.S. standards of citizenship.

For instance, candidate Ted Cruz’s eligibility for president was called into question due to the circumstances of his birth. Cruz was born in Canada in 1970 to a U.S. citizen mother and a Cuban-native father. While legal experts sounded off on his presidential eligibility, level heads agreed that long-established legal standards recognized Cruz as a U.S. citizen, and therefore eligible for the presidency.

In an article written for the Harvard Law Review in March 2015, attorneys Neal Katyal and Paul Clement noted that the concept of the natural born citizen has roots in pre-Constitution British law, when children born abroad to subjects of the British Empire were themselves considered subjects. Katyal and Clement noted that Congress adopted the same interpretation early in the history of the U.S.

“Despite the happenstance of a birth across the border, there is no question that Senator Cruz has been a citizen from birth and is thus a “natural born Citizen” within the meaning of the Constitution,” they wrote.

Presidential eligibility wasn’t the only citizenship issue raised during the Republican primary. Rancorous discussion also focused on birthright citizenship and whether or not the 14th amendment applies to children born on U.S. soil to immigrant parents.

Those who oppose this long-recognized type of citizenship point to a section of the 14th amendment, which defines U.S. citizens as “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.”

Birthright opponents focus closely on the definition of the term “jurisdiction.” Attorney John Eastman of the Dale E. Fowler School of Law at Chapman University argues that U.S. jurisdiction should apply only to children born on U.S. soil to at least one parent who owes allegiance to the U.S.

But as a 2015 Mother Jones article notes, the term jurisdiction has been interpreted for years as a “carve out” for the children of foreign diplomats and enemy combatants on U.S. soil. This interpretation has not historically been used to deny citizenship to children born in the U.S. to immigrant parents.

Naturalization

When asking what is the difference between citizenship and naturalization, it is important to keep in mind that naturalization is a process. Unlike a person born to U.S. parents (on or off U.S. soil), a person who seeks naturalization is not automatically eligible for citizenship.

Lawful permanent residents become naturalized by fulfilling certain requirements established in the Immigration and Nationality Act (INA). These requirements include swearing allegiance to the U.S. and giving up prior national allegiance.

While a lawful permanent resident (green card holder) has obtained permission to live and work in the U.S., they don’t have the right to vote, or to obtain a passport. They get these rights only after being naturalizaed. In a 2012 Pew Research poll examining Hispanic trends, 18 percent of Latino foreign-born U.S. citizens cited civil and legal rights as their primary reason for naturalizing.

In order for a permanent resident to become naturalized, they must wait up to five years before filing an Application for Naturalization (Form N-400). During the naturalization process, the permanent resident will also submit to an interview with a representative of U.S. Citizenship and Immigration Services (USCIS), and demonstrate an understanding of the English language and knowledge of U.S. history.

Many folks might be surprised to learn that former Baywatch star Pamela Anderson is a naturalized citizen. Originally born in Canada, to Canadian parents, Anderson was sworn in as a U.S. citizen in 2004.

“I felt it was important to become a U.S. citizen in order to vote in the United States,” Anderson said at the time in a written statement. “U.S. citizenship will allow me, in the future, to petition to bring my children’s grandparents down to the United States to care for them once they become older.”

Contact an Attorney for More Information

Hopefully, if you were asking what is the difference between citizenship and naturalization, you have a better idea now. If you are a lawful permanent resident interested in learning more about naturalization, contact our immigration lawyer to find out if we can help you navigate the process.