In addition to providing aid to Haiti, on January 15, 2010, the United States government designated Haiti for Temporary Protected Status (TPS) which is a country designation to help Haitian nationals in the United States who are unable to return to Haiti due to the recent earthquake. A country is given TPS designation because temporary conditions such as ongoing armed conflict, environmental disaster or other extraordinary circumstances prevent nationals of a particular country from returning safely to their home.

To qualify for Haitian TPS, one must:
1. Be a national of Haiti or one with no nationality who last habitually resided in Haiti and have resided continuously in the United States since January 12, 2010;
2. Not have been convicted of a felony or of 2 or more misdemeanors in the United States;
3. Have been continuously present in the United States since January 21, 2010 and meet certain immigrant admissibility and TPS eligibility requirements; and
4. Complete all TPS application procedures according to the Federal Register notice announcing TPS for Haiti.

The TPS registration period began on January 21, 2010 and will continue for 180 days from that date. Filing for TPS must occur during the 180 day registration period and the application package must be postmarked on or before the last day of the registration period.

It is important to have a thorough and well documented packet when applying for TPS. The success of a TPS application will depend on the details contained in the packet.

We’re going to crack down on violations of equal pay laws — so that women get equal pay for an equal day’s work. And we should continue the work of fixing our broken immigration system — to secure our borders and enforce our laws and ensure that everyone who plays by the rules can contribute to our economy and enrich our nation.

In the end, it’s our ideals, our values that built America — values that allowed us to forge a nation made up of immigrants from every corner of the globe, values that drive our citizens still. Every day, Americans meet their responsibilities to their families and their employers. Time and again, they lend a hand to their neighbors and give back to their country. They take pride in their labor and are generous in spirit. These aren’t Republican values or Democratic values that they’re living by, business values or labor values. They’re American values.

Many immigration advocates were disappointed in the lack of details in the President’s SOTU address.  Clearly, the financial crisis, the war in Iraq and Afghanistan and the Health Care debate have dominated President Obama’s agenda, even though Candidate Obama stressed the importance of immigration reform as a critical issue facing the country.  After the Republican win in Massachusetts, which enables Republicans to block the 60-vote super-majority the Democrats had previously enjoyed in the Senate, the President is changing his legislative priorities.  It now appears that the President intends to devote his attention to job creation and expanding government programs in transportation and energy consumption.  That will push immigration reform lower on the list of priorities and will likely delay immigration reform for another year or longer.

These diseases include the following:

Hepatitis B

Influenza Type B

Mumps

Measles

Pertussis

Polio

Rubella

Tetanus and Diphtheria Toxoids

And any other vaccine-preventable diseases recommended by the Advisory Committee for Immunization Practices (ACIP).  Vaccines against herpes zoster (zoster) and HPV are no longer required vaccines effective December 14, 2009.

The ACIP is an advisory committee to the Department of Health and Human Services (HHS)/Centers for Disease Control and Prevention (CDC) whose responsibility is to recommend immunizations for the general U.S. population.  Beginning December 14, 2009, when the ACIP recommends new vaccines for the general U.S. population, CDC will determine if these recommended vaccines should be required for immigration purposes on a regular basis and on an as needed basis, in addition to those specifically listed in the INA.  In making the determination, the CDC applies the following criteria:

• the vaccine must be an age-appropriate vaccine as recommended by the ACIP for the

general U.S. population, and at least one of the following:

• the vaccine must protect against a disease that has the potential to cause an outbreak;

OR

• the vaccine must protect against a disease eliminated in the United States, or is in the

process of being eliminated in the United States.

The CDC publishes the Technical Instruction for the Medical Examination of Aliens

in the United States (Technical Instructions), which can be found at www.cdc.gov/ncidod/dq/civil.htm.  These instructions set the requirements for the immigrant medical examination and are binding on civil surgeons who conduct these examinations. The Technical Instructions include a vaccination component which specify the requirements for civil surgeons when conducting the vaccination assessment.

The civil surgeon will review an applicant’s vaccination records at the time of the examination and will determine if the applicant has had disease preventing vaccinations appropriate for his or her age category.  It is therefore important for the applicant to have on hand documentation of their vaccination records.  If an applicant is immune to certain vaccinations or has a medical condition that the applicant cannot receive certain vaccinations, the applicant should provide documentation of this as well.  The civil surgeon will administer those vaccines which the applicant had not previously received and which the applicant is able to receive based upon the applicant’s vaccination and medical history.  The applicant is responsible for paying the civil surgeon for the vaccines.  An applicant may also choose to have their healthcare provider administer the vaccine; however, only a civil surgeon is authorized the vaccination assessment.  The applicant must therefore return to the civil surgeon with proof that their healthcare provider did administer the vaccine.  The results of the medical examination as well as the vaccination assessment are recorded by the civil surgeon on USCIS Form I-693, Report of Medical Examination and Vaccination Record.  If an applicant refuses to receive vaccines required for immigration purposes, the applicant’s request for immigration benefits may be denied.  The applicant should inform the civil surgeon of the reason for the refusal and a waiver may be available to the applicant.  Waivers are available in the following circumstances:

• the applicant is opposed to vaccinations in ANY form– meaning the applicant cannot obtain a waiver based on an objection only as to one vaccination;
• the applicant’s objection must be based on religious beliefs or moral convictions; and
• the applicant’s religious or moral beliefs must be sincere.

If one is applying for an immigrant visa abroad, s(he) must  receive a medical examination by a panel physician designated by the U.S. Department of State (DOS).  The CDC issues separate instructions to panel physicians abroad on how to conduct medical examinations.

Information about vaccinations in general can be found at www.cdc.gov/vaccines or, for information about vaccine requirements for immigration purposes, at www.cdc.gov/ncidod/dq/civil.htm.

Who is “Balloon Boy?,” others are asking.

Balloon Boy references the hoax that occurred on October 15, 2009, in Fort Colline, Colorado, when the parents of a six-year-old boy, Falcon Heene, claimed the boy floated away in a homemade balloon.  At the time, it was reported that the boy was traveling in the balloon at altitudes reaching 7,000 feet (2,100 m).  Falcon was nicknamed “Balloon Boy” by the media following the story.

After hours in a flight that coveved more than 50 miles across three counties, the balloon landed about 12 miles (19 km) northeast of Denver International Airport.  Authorities closed down the Denver airport, and sent several National Guard helicopters and local police in pursuit.  After the balloon landed and the boy was found not to be inside it, authorities began a manhunt of the entire area.  Their fear was that he had fallen from the balloon while in flight.  Later that afternoon, the boy was reported to have been hiding at his house the entire time.

Eventually, it was discovered that the incident was a hoax and publicity stunt staged by the boy’s father, Richard Heene.  On October 18, 2009, the local sheriff decided that the parents would likely face several felony charges.  The sheriff also expressed his intent to recover the more than $62,000 spent in the search and rescue effort.

Immigration Law Impacted the Guilty Plea.

On November 12, 2009, an attorney for both parents announced that they intended to plead guilty to charges filed against them.  In exchange, the prosecutor would recommend probation.  The attorney’s statement said that the threat of deportation of Balloon Boy’s mother, Mayumi Heene, who is a Japanese citizen, was a factor in the plea negotiations.  On November 13, Richard Heene pleaded guilty to a felony charge of attempting to influence a public servant.  The mother, Mayumi Heene, did not appear with him, and will face a misdemeanor charge of false reporting to authorities.  Another hearing in the case is scheduled for mid-December.

What is significant about the case of Balloon Boy from an immigration law perspective is the fact that criminal convictions can impact a person’s immigration status.  In the case of  Mayumi Heene, she could have been subject to mandatory deportation, had she been tried and convicted of a major felony.  In her case and the case of many other immigrants, it is often necessary to prevent deportation by pleading to a lesser crime as a strategy to reduce the chances of being tried and convicted of a more serious crime.  Often, this is the case where an innocent immigrant lacks the funds necessary to present an adequate defense.  An immigrant facing a felony charges should weigh the risks of a felony conviction and deportation against the odds of gaining an acquital.

Criminal Defense Attorneys Need to Consult With Immigration Counsel

Criminal defense attorneys often fail to consider or properly weigh the impact a criminal conviction can have on an immigrant’s immigration status.  The extent to which a criminal attorney should consider the impact of a client’s immigration status is currently before the United States Supreme Court.  On February 23, 2009, the Supreme Court granted certiorari in Commonwealth v. Padilla, 253 S.W.3d 482 (Ky. 2008), cert. granted, 2009 U.S. LEXIS 1453 (U.S. Feb. 23, 2009) (No. 08-651).   The issue in the case is whether criminal defense counsel must inform a client of the immigration consequences of a plea and if not, whether counsel’s gross misadvice about the consequences is a ground for setting aside a plea.  Specifically, the Court will address:

1.       Whether the mandatory deportation consequences that stem from a plea to trafficking in marijuana, an “aggravated felony” under the Immigration & Nationality Act, is a “collateral consequence” of a criminal conviction which relieves counsel from any affirmative duty to investigate and advise; and

2.       Assuming immigration consequences are “collateral”, whether counsel’s gross misadvice as to the collateral consequence of deportation can constitute a ground for setting aside a guilty plea which was induced by that faulty advice.

The Kentucky Supreme Court’s position on whether the petitioner should be allowed to seek post-conviction relief represents the minority view.  The majority of state and federal courts that have ruled on the issue have held that misadvice can be ineffective assistance of counsel, even in jurisdictions where there is no affirmative duty to advise defendants of the immigration consequences of a plea.

The Court heard oral arguments on October 13, 2009.

I am pleased to announce that the Widow’s Penalty has finally come to an end.

The Congress recently approved the Department of Homeland Security Appropriations Conference Report (HR 2892), which included an amendment to abolish the Widow’s Penalty.  President Obama signed it into law.  The new law has finally end the Widow’s Penalty.

The new law means that the death of a U.S. citizen spouse will no longer result in automatic deportation of widows, widowers and their children.  The new law eliminates the two-year marriage requirement, permitting widows and widowers of U.S. citizens to apply for a green card for themselves and on behalf of their foreign-born children.  It is also retroactive so anyone qualifying for relief can file a petition for permanent residency up to two years after passage of the measure.

Tiffany U. Vivo is an Indianapolis immigration lawyer.  She also practices family law.  Ms. Vivo appears before the Immigration Court (EOIR), the United States Citizenship & Immigration Service (USCIS), the Board of Immigration Appeals (BIA) and state and federal courts in Indiana and Illinois.  She is a member of the Indiana State Bar, and the national and local chapters of the American Immigration Lawyers Association (AILA).   Her immigration law offices are located in Indianapolis, from where she serves immigration clients across the country.

MS. VIVO’S ANSWER:       Yes, you need a K1 or “Fiancée Visa.”  It takes some time to acquire a Fiancée Visa, and that process frustrating.  So, be patient and follow the instructions of a qualified and knowledgeable immigration attorney.

Often, a couple will have to wait up to six months before being granted preliminary approval from the United States Citizenship and Immigration Service (“USCIS”).  After approval, an application for a K1 Visa is sent to the National Visa Center and then finally, in the case of a Filipina fiancée visa application, to the United States Embassy in Manila.  Again, the process can be long and frustrating.  But, hopefully and is the case most often, the wait ultimately results in the issuance of a valid K1 fiancée visa.

After the visa is issued, engaged couples often become concerned about the information and dates printed on the visa itself.  For example, the visa states: “K-1 Petition Expires on MM DD, YYYY.”  Couples often mistakenly believe that this is the end of the visa’s validity.  What is really the case is that the visa is valid for travel to the USA until the expiration date expressly stated on the visa.  Usually, a K1 visa is issued with a validity of six months.  The Consular Officer adjudicating the case at the United States Embassy in Manila has discretion to issue a visa with a shorter validity period.

A K1 visa is valid for six months after it is issued.  After your fiancée arrives in the United States and after she is admitted at the port of entry, she is only entitled to 90 days presence in the United States.  If you and your fiancée get married, you should then apply for adjustment of her status.  She would be entitled to remain indefinitely, provided the adjustment of status is approved and any conditions are lifted.  

If you and your Filipina fiancée do not marry while she is in the United States, she will need to depart the U.S. before the visa’s expiration.

In circumstances where a Petition is based upon marriage to a U.S. citizen, a foreign fiancé(e) has to pass scrutiny by the U.S. government, whose purpose is to determine whether the parties entered into a bona fide marriage.  In other words, the U.S. government will want to ensure that the couple married for love and not for immigration reasons.  Essentially, the inquiry begins when a U.S. citizen petitions a foreign fiancé(e) through a K-1 visa.  The Petition is filed with the United States Citizenship & Immigration Services (USCIS), which then refers the Petition to the National Visa Center (NVC).  The NVC forwards the Petition to the U.S. Consulate of the foreign fiancé(e)’s residence who is responsible for interviewing the fiancé(e) to determine the true intent of the couple.  The Consular Officer will ask a number of questions of the fiancé(e) and will require certain documents to be submitted to support the couple’s intentions to marry.  If the Consular Officer is satisfied, a K1 visa is issued to the foreign fiancé(e) to travel to the United States.  A visa, however, will not always guarantee the fiancé(e) entry into the United States.  Agents of the Department of Homeland Security (DHS), who will meet the arriving fiancé(e) at the port of entry, will have to determine if the fiancé(e) is admissible according to immigration laws.

If granted entry into the United States, the U.S. citizen and foreign fiancé(e) have 90 days to get married.  If the marriage does not occur within that timeframe, the foreign fiancé(e) becomes out of status.  The K1 visa is sponsor specific, so a foreign fiancé(e) who does not marry the original petitioning U.S. citizen cannot use the same visa to marry another U.S. citizen.  Once married to the U.S. citizen spouse, the foreign fiancé(e) will be eligible to apply for permanent resident status and obtain a green card.  If approved, the permanent resident status and the green card that is issued are conditional, which means that the couple must file another Petition with the USCIS to lift the conditions of that status.  The Petition must be filed within 2 years of the conditional green card being issued or as early as 90 days prior to the expiration of the conditional green card.  If the couple’s request to lift the conditions of the green card is granted, the foreign spouse will receive the 10 year unconditional green card.  The foreign spouse will be eligible to file for U.S. citizenship within 3 years of being issued the conditional green card or as early as 90 days before the 3 year date for eligibility.

So, what happens if the U.S. citizen spouse dies before either the conditional green card is issued or the conditions of the green card are not lifted?  The “Widow’s Penalty” places the immigrating spouse in a difficult position.  As a result of the untimely death of the U.S. citizen spouse, the foreign spouse, now a widow(er), could be considered out of status because he or she is no longer married to the U.S. citizen spouse.  This seems a harsh consequence for the foreign widow(er)s, and the U.S. Federal Courts and DHS have taken a sympathetic approach to addressing these unfortunate circumstances by allowing foreign widow(er)s to remain in the United States, deferring inspection and granting amnesty-like relief to those who find themselves in this difficult situation.  The application of the law continues to be arbitrary and conflicting.  However, the Courts appear to be moving towards favoring eliminating this harsh penalty in an effort to promote fairness to the innocent immigrant spouses already residing in the United States.

Tiffany U. Vivo is an Indianapolis immigration lawyer.  She also practices family law.  Ms. Vivo appears before the Immigration Court (EOIR), the United States Citizenship & Immigration Service (USCIS), the Board of Immigration Appeals (BIA) and state and federal courts in Indiana and Illinois.  She is a member of the Indiana State Bar, the Indianapolis Bar Association, and the national and local chapters of the American Immigration Lawyers Association (AILA).

Generally, visas fall in one of these categories:

1. Nonimmigrant Visa- for  temporary stay in US
2. Immigrant Visa- for permanent stay in US

The specific types of visas available through the USCIS include:

1. B-1 Business Visa – The USCIS offer B-1 Business Visa to foreign nationals working for a foreign company. Foreign citizens wanting to visit the United States for most business purposes are eligible to apply for a B-1 Business Visa.

2. B-2 Tourist Visa – Foreigners wanting to tour the U.S. for leisure purposes, on holiday, for a vacation for medical treatment should apply for B-2 Tourist Visa.  Citizens of countries qualifying for the Visa Waiver Program also need a B-2 Tourist Visa, if they plan to stay in United States for more than 90 days.

3. H-1B Work Visa – This type of Visa allows college-educated professionals with special skills (like doctors, engineers, scientists) to enter the U.S., in order to make “valuable contributions” to American development.  A maximum of 65,000 H-1B Visas are issued in one year.  Professionals with H-1B Visa can stay in the U.S. for a maximum of three years, but that can be extended if required.  The maximum period of stay cannot exceed more than six years. A huge advantage for H-1B Visa holders is that they can apply for Permanent Immigrant Status (Green Card), if their company sponsors them.

4. H-2B Work Visa – An H-2B Visa is a different type of work visa and is issued to skilled and unskilled workers (for non-agricultural jobs).  A maximum of 66,000 H-2B Visas are issued each year. Workers with an H-2B Work Visas come to U.S. for a temporary or seasonal job (non-agricultural) offered by US employers.

5. C-1 Transit Visa – Persons who need to enter the U.S. in order to transit to another country would seek an C-1 Transit Visa.  People with C-1 Transit Visa are allowed to travel (for a maximum of 29 days) in U.S. if their destination is another country.  Citizens from countries eligible for Visa Waiver Program do not need a Transit Visa.

6. F-1 Student Visa – An F-1 Student Visa is for foreign students seeking higher studies in the U.S.  Foreign students seeking F-1 Students Visa must have a valid educational purpose for coming to the U.S.  Only students participating in full time educational programs are eligible to apply for F-1 Student Visa.  Students with an F-1 Visa can stay in the U.S. through the completion of their educational session. An F-1 Visa is multi-entry visa, allowing those students to enter the U.S. States many times. Those students can also travel freely anywhere in the United States and can do practical trainings to gain work experience.  In many cases, students obtaining a bachelor or master’s degree can be sponsored by their employer and obtain an H-1B Work Visa. This is the biggest advantage attached in first obtaining an F-1 Students Visa.

7. J-1 Exchange Visitor Visa – An J-1 Exchange Visitor Visa allows individuals to participate in exchange visitor programs organized by Education and Cultural Institutions or Business Houses. J-1 Exchange Visitor Visa helps industrial trainees, students, teachers, research assistants, scholars, and people on cultural missions who are participating in a program of studies, training, research, or a cultural enrichment program designed for such individuals by the United States Department of State, through its Bureau of Educational and Cultural Affairs.

Tiffany U. Vivo is an Indianapolis immigration lawyer.  She also practices family law.  Ms. Vivo appears before the Immigration Court (EOIR), the United States Citizenship & Immigration Service (USCIS), the Board of Immigration Appeals (BIA) and state and federal courts in Indiana and Illinois.  She is a member of the Indiana State Bar, the Indianapolis Bar Association, and the national and local chapters of the American Immigration Lawyers Association (AILA).

The most sweeping change after 9/11 was the U.S. Patriot Act, signed into law on September 26, 2001.  While this Act was designed to protect against terrorism, it also has had a negative impact on immigrants.  The Act allows law enforcement agencies more power to search telephone communications, e-mails, medical, financial, and other records.  The Act limits restrictions on foreign intelligence gathering within the United States, and it gave more discretion to law enforcement and immigration authorities in detaining and deporting immigrants suspected of terrorism-related acts.  The Act called for Special Registrations, deportations, fingerprinting and questioning of certain non-citizens, particularly males in certain age groups.  The Act was was reauthorized by Congress in 2005.

The U.S. Patriot Act contains immigration provisions that allow for the indefinite detention of any alien whom the Attorney General believes may cause a terrorist act.  The Act has been challenged on several legal grounds but remains largely intact.

The U.S. government continues to fight terrorism by tightening its policies on foreigners in our country.  Obtaining visas and green cards now involve a complicated process, with more detailed background checks being required.  For example, the U.S. government will quickly deport individuals for visa or green card violations.

The Patriot Act and other post 9/11 policies still have a negative impact on the immigrant population.  Since 9/11, immigration laws have become more complicated.  Obtaining a fiance visa, for example, has become harder, simply due to increased regulation and tighter immigration requirements.  Thus, the need for an experienced immigration attorney is greater now than ever.  

If you or someone you know needs an immigration attorney, contact the Law Offices of Tiffany Vivo.

Tiffany U. Vivo is an Indianapolis immigration lawyer.  She also practices family law.  Ms. Vivo appears before the Immigration Court (EOIR), the United States Citizenship & Immigration Service (USCIS), the Board of Immigration Appeals (BIA) and state and federal courts in Indiana and Illinois.  She is a member of the Indiana State Bar, the Indianapolis Bar Association, and the national and local chapters of the American Immigration Lawyers Association (AILA).

To be eligible for naturalization, a person must first be a Lawful Permanent Resident.  He or she must be at least 18 years old at the time of filing for citizenship.  There are special rules on naturalization for minor children.  Please contact Indianapolis immigration attorney Tiffany Vivo for details on waivers and exceptions for minors.

A person seeking naturalization must also reside in the United States for a continuous period prior to the filing of the naturalization application.  If the person is not married to an American citizen, he or she must live in the U.S. for a continuous period of five years after lawful admission to the U.S. as a permanent resident.  If an individual is married to a U.S. citizen, he or she must live in the United States for a continuous period of three years following lawful admission to the U.S. as a permanent resident.  And, the person married to a U.S. citizen must reside with his/her spouse for three years before the applicant’s exam date.  The U.S. citizen spouse must have been a U.S. citizen during that entire time.

Residency is required for three months immediately preceding the filing of the naturalization application.  Continuous residence in the United States is also required from the date of filing until actual admission to citizenship.

The person must also be able to read, write and speak ordinary English, which is determined through oral and written tests administered by an immigration examiner during the naturalization interview.  There are some exemptions to the language requirement.
The applicant must have both knowledge and understanding of the fundamentals of U.S. history and government, which is determined by taking a multiple choice test. Generally, applicants who are exempt from English requirement must still meet this requirement.  An application must have good moral character and attachment to the principles of the U.S. Constitution.
To become a U.S. citizen, call Indianapolis immigration attorney, Tiffany Vivo, at her law offices.

Tiffany U. Vivo is an Indianapolis immigration lawyer.  She also practices family law.  Ms. Vivo appears before the Immigration Court (EOIR), the United States Citizenship & Immigration Service (USCIS), the Board of Immigration Appeals (BIA) and state and federal courts in Indiana and Illinois.  She is a member of the Indiana State Bar, the Indianapolis Bar Association, and the national and local chapters of the American Immigration Lawyers Association (AILA).