Articles Posted in Seattle or Washington Immigration Issues

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I had the privilege of seeing the Seattle Opera perform “The Consul.” This Gian Carlo Menotti opera, which runs through March 7, 2014, deals with the frustration and torment of freedom and opportunity seekers everywhere trying to apply for visas and the bureaucracy they face. Althoughneither the location nor the government involved is mentioned in this opera, it is set in the 1940s or 1950s. Menotti’s idea for the opera was inspired by a New York Times article about a woman from Poland who committed suicide at Ellis Island after she was refused admission to the USA.

The issues in The Consul are the same today and accurately reflect what I hear from people every day who have been denied visas around the world: they feel they are treated briskly (“Next!”); no amount of paperwork is ever enough; their personal stories are not heard (only do you qualify or not); and that visas tend to be issued to the wealthiest of individuals. In the opera, the consular Secretary pronounces: “These photos are not the right size.” “This paper must be notarized.” “No one is allowed to see the Consul. The Consul is busy.” “I don’t see how we can help you.” “I can’t make an exception. It would upset our system.”

The music is interesting though it can be a bit disconcerting given the somber story. However, the lyrics are spot-on from my perspective based on what I know about the visa application process.

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A colleague of mine who adopted a foreign born child who is a US citizen reports problems signing up for health care under the Washington Health Care Exchange. The problem is that the system does not seem to recognize the Social Security Numbers of individuals with Certificates of Citizenship or Certificates of Naturalization. She has reported this to the powers that be at the Exchange. But it is representative of a larger issue we immigration lawyers frequently see.

We don’t just represent foreign born immigrants. We also represent US citizens in a world of ever increasing need to document citizenship status, whether in those states now requiring proof of citizenship status in order to vote, to sign up for Medicare or Medicaid, to get US passports or enhanced drivers licenses in order to come back into the USA, to get security clearances, and for a myriad of benefits and services requiring proof of citizenship status. The makers of these verification rules and technology don’t have a good grasp on the different ways people can become US citizens: 1) by being born in the USA; 2) by being born abroad to one or more US citizens or acquiring citizenship through the generations; 3) through naturalization; 4) through adoption; 5) through military service, and more. Consequently, unless you were born in the US and received a Social Security Number at birth, it is recommended that when you obtain a new status or even a name change, that you update Social Security with your new status. Social Security in turns shares that data with a myriad of systems at other agencies such as E-Verify, used by employers to verify work authorization in the US, and now the federal and state Healthcare exchanges, among others. You can do a quick self-test here at E-Verify (it checks both immigration and citizenship status and Social Security numbers.) If you get a bounce, check the way you entered your name. If it is not the same as on your Social Security number, I suggest making an appointment with Social Security to get your records updated.

Although a whole other topic about which immigrants can or cannot receive Obamacare, see the National Immigration Law Center.

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In a year when the State Budget was paramount, the Washington State legislature took up several immigration related bills, some with no fiscal impact, and others with a major fiscal impact. As the Washington State Legislative term winds down, but goes into special session to finalize the budget, this post focuses on several bills during the term. Immigration advocates supported some bills and opposed others. So far, we have been successful with each, although the session is not yet over.

Reducing the Maximum Sentence for Gross Misdemeanors to 364 Days
Immigration attorneys, advocates and allies pushed for two key bills that were ultimately passed and will be or have been signed into law by the Governor. First, SB 5168 reduces the maximum penalty for gross misdemeanors from 365 days to 364 days. I testified as Chapter Chair in support of this bill on behalf of the American Immigration Lawyers Association Washington Chapter along with colleagues from Washington Defenders Association, OneAmerica, the Seattle City Attorney’s Office, Washington State Coalition Against Domestic Violence, and Washington Association of Criminal Defense Lawyers. There was no opposition testimony.

This bill originally stemmed from a series of incidents and policies enacted in several courts around the state where judges were routinely issuing 365-day sentences, even if suspended in whole or part without considering the impact of deportation on green card holders and others. An aggravated felon (even if convicted of a misdemeanor) is barred from most forms of relief from deportation and ability to return to the U.S. in the future. The majority of individuals (regardless of status) that receive jail sentences actually serve very little time in jail, if at all. But for immigrants, the maximum potential or actual sentence received, regardless if suspended, can make a big difference in ability to stay in the U.S. However, uniform application of 365-day sentence policies actually violate the gross misdemeanor sentencing statute and case law that requires a judge to use his or her discretion, considering a range of factors, to set proportionate sentences on an individualized basis. They can set a sentence anywhere in the range from zero to 365 days depending upon the facts in the case. The new provision with a potential maximum sentence of 364 days now makes the outcome of maximum sentencing determinations to have equal application to U.S. citizens and non-citizens alike. Furthermore, the statute does not change the role of immigration judges to make individual decisions about whether relief from removal is warranted. Washington Defenders Association took the lead in drafting the bill that was sponsored by Senators Prentice, Kline, Regala, Chase and Kohl-Welles. This bill has been signed by the Governor.

Consumer Protection for the Unauthorized Practice of Law in Immigration Services
The second bill, SB 5023, the Immigration Services Fraud Prevention Act, sponsored by Senators Prentice, McAuliffe, Litzow, Shin, Kline, Pflug, Fraser, Chase and Rockefeller, was recommended by the state’s Attorney General as a consumer protection bill to clamp down on the unauthorized practice of law by non-attorneys holding themselves out as registered Immigration Assistants, notario publicos, immigration consultants or some other immigration specialist. The Immigration Assistant bill enacted in 1989 has resulted in several high profile prosecutions under the Consumer Protection Act where several registered Immigration Assistants, including some disbarred attorneys acting as Immigration Assistants, were accused of providing legal advice and violating other provisions of the Immigration Assistant Act and/or the Consumer Protection Act. Although many cases end up settling, the Attorney General’s office has a substantial active investigation docket revealing many immigration consultants also never even registered as Immigration Assistants in the first place. Moreover, the State Department of Corporations has lacked the staff and funds to monitor the program. Under SB 5023 as finally passed by the legislature last week, the Immigration Assistant designation is removed. Non-attorneys will still be able to translate documents, help customers find supporting documents and scribe answers to questions on to forms, but they will not be permitted to perform the work of a licensed attorney as defined by the Supreme Court, such as advising about what category of immigration to file under, to deciding what form is appropriate or interpreting the meaning of questions or giving advice about how to answer questions on immigration forms. Existing Immigration Assistants and others who want to become authorized representatives, must register within six months under the federal scheme as persons authorized to represent individuals before the Department of Homeland Security and the Immigration Courts.

I testified as Chapter Chair in support of this bill on behalf of AILA, and was joined by the Attorney General, OneAmerica, the Latino/a Bar Association, the Northwest Immigrant Rights Project, and individual attorneys. We also attended several stakeholders meetings held by the House of Representatives. The bill became rather contentious at times, but ultimately passed with an amendment requiring the State Supreme Court to study the issue of non-lawyer services for immigrants. This bill has not yet been signed by the governor.

Drivers Licenses
Immigration advocates also successfully opposed several anti-immigrant bills (although, as of this writing, the session is not technically over, so anything can still happen in the final days.) The State legislature tried several times in separate bills (e.g., SB 5138, SSB 5407, SB 5333, 5338, HB 1577) and in amendments to SB 5023 above to change the requirements for obtaining drivers licenses that would impact immigrants, in legal status or not. The House Transportation Committee held an open hearing that was well-attended by people on both sides. However, in the end, attempts to create a two-tier license system or to require citizenship or social security numbers to get drivers licenses were defeated. Again, AILA provided written statements in opposition to these bills as we tried to educate the legislature about how both citizenship and social security numbers are misleading about what an immigrant’s status and long-term right to be in the U.S. could be. There are a myriad of statuses as well as in-between statuses while applications are pending, often years at a time, when people may be in the U.S. with the knowledge and authority of the U.S. government. Further, there are several perfectly legal statuses where, for example, dependent spouses have valid visas but the category prohibits them from working. Social Security will not issue a number without a work permit in many of these situations, which would result in the person not being able to drive or get a Washington ID despite being here lawfully for several years. Some legislators, not really understanding how immigration law works, have demanded that licenses be given only to U.S. citizens, which would exclude all persons here legally with green cards and nonimmigrant visas.
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The Seattle Times reports today that the U.S. Passport Office in downtown Seattle will open its doors to the public on Saturday, March 12 from 9am to 3pm to encourage more people to apply for passports. Normally open by appointment only for expedited service or complex cases, the Seattle Passport Office is located at the Jackson Federal Building, 915 Second Ave., Suite 992. Usually, applicants can apply by mail or in person at post offices, city and county offices, or at Neighborhood Service Centers throughout Seattle. First time applicants over 16 must appear in person as must children with one or both parents. Applications and requirements can be found on the State Department’s website.

Some of the passport application issues we are seeing in our office in the last year include these three broad categories: foreign adoptions where the American adopting parents never completed the immigration and citizenship process after the children were brought into the U.S.; and parents who delayed registering the birth with a state and where the baby was born at home with the assistance of a midwife. In the former scenario, there can be serious problems getting a passport for someone over 18. In the second scenario, it seems the Passport Office focuses on needing solid evidence of the mother’s presence in the U.S. immediately before, during and after the child’s birth. A third issue is failure of U.S. citizen parents living abroad to file a “Report of Birth Abroad” at a U.S. consulate for their children born overseas.

Did you know that fewer Americans travel abroad than people from the U.K. or Canada? According to the U.S. Travel Industry Association, only 30% of Americans have passports compared to 60% of Canadians and 75% of the British. According to the U.S. Passport Office, almost 15 million U.S. passports were issued in 2010, of which 1.5 million were the new passport cards valid only for Canada, Mexico, the Caribbean and Bermuda (for land or sea travel only). While passport applications are up because of the Western Hemisphere Initiative (WHITI) requiring passports to re-enter from Mexico, Canada, the Caribbean, and Bermuda, passport use by Americans is relatively low, as is international travel generally. A recent CNN post on “Why Americans Don’t Travel Abroad” notes that many Americans feel there is enough to do and see right here in the U.S., which is a vast country with many different geographies, cultures and ethnic groups to visit. However, if more people traveled abroad to see how people live in other countries, perhaps we would understand each other better and find that we have more in common than differences. While it’s easy (and cheaper) to say one can just visit Chinatown or Little India in your own back yard, or see the Mojave Desert, the Cascades, Appalachia or Santa Fe, it’s an entirely different experience to visit and meet the people of China’s deserts, India’s big cities or villages, climb the Himalayas or the Alps, converse with villagers in Mali, or swim with the fish in the Red Sea. Perhaps the discussions about immigration policy might be filed with less vitriol or “us and them” and more understanding or appreciation about what motivates people from distant lands to come to the U.S. for one reason or another. Passports lead to travel, which leads to knowledge and understanding of others.

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The Seattle Times reports today in “Bill Tightens Legal Services for Immigrants”, that the Washington legislature is considering elimination of the “Immigration Assistant” designation for nonlawyers who provide immigration services. The bill would increase the penalties against those who wrongfully provide legal advice to immigrants and would make state law consistent with federal law on the subject.

As Chair of the American Immigration Lawyers Association, Washington Chapter (AILA), I testified in support of this bill before the Senate Judiciary Committee a few weeks ago along with a representative of the state’s Attorney General’s office and a representative from One America, an immigrant advocacy organization. The Attorney General’s Consumer Protection Division has brought actions under the state Consumer Protection Act against several immigration assistants and notarios charging them with practicing law without a license. Some nonlawyers gave bad advice to clients who ended up in deportation proceedings. Other immigration “consultants” have been prosecuted criminally in federal court for making false statements in applications. Typically, the state Attorney General enters into consent decrees with injunctions, fines and payment of attorneys fees, and restitution, “without admission of liability” contingent upon compliance of the conditions in the decree, such as public posting of services allowed and not allowed.

Unfortunately, by the time my attorney colleagues and I see these cases, there is a trail of tears left behind, where a client has been mislead into believing they paid a fee for an immigration benefit (legal status) only to learn they face deportation instead. Many people, including lawyers in other disciplines, think that immigration law is just a matter of “filling in some forms.” It’s quite the contrary, however. Immigration law is highly complex. Figuering out what category is appropriate, when to apply, risks in applying, and resolving a host of complex consequences come into play long before a form is ever filled out. Even then, the individual questions on a government form have legal consequences for current or future status. Moreover, forms are filled out under penalty of perjury, which has both immigration and criminal consequences to the applicant and other consequences to the preparer of the form if not the applicant. While the current Immigration Assistant bill limits the service provider to performing translations, placing a person’s responses to questions on a form, and obtaining supporting documents (e.g., birth certificates), it is very hard to provide just these services without also providing legal advice. The act of providing legal advice can include the mere selection of the appropriate form to complete, advice about how to answer a question, or advice about the qualifications for an immigration category. In immigration law, selecting the wrong form or immigration category, or whether to apply for something at all can have disastrous consequences for an immigrant. So, too, can failure to ask all the right questions to fully understand a person’s entire history.

In the Hispanic community, the term “notario” is often confused with the designation of attorney in many Latin American countries. A “notario” in the U.S., however, is not a licensed attorney in the U.S. unless the person meets State Bar rules. Moreover, the term “notario” can be confused with the U.S. term for “notary public,” which is yet another entirely different profession. The Immigration Assistant concept was originally introduced years ago to be a way for nonlawyers to help the community members who cannot afford a lawyer by offering lower priced, more limited services. However, in practice, some Immigration Assistants have charged the same or more than lawyers, and have practiced law.
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I just returned from Vancouver, Washington where together with fellow immigration attorneys, we helped legal immigrants with green cards apply for U.S. citizenship. The Washington Chapter of the American Immigration Lawyers Association (AILA) provides pro bono services three days a year at nine sites throughout Washington State at locations traditionally under-served by the availability of affordable lawyers. Citizenship Day programs were also held this weekend in Des Moines and Mt. Vernon, Washington where larger crowds were expected. AILA partners with One America, an immigrant advocacy and outreach organization that provides logistical and PR support for the program called Washington New Americans. Local community colleges and nonprofit organizations provide space and other support.

Originally started by an AILA Washington member as a once-a-year project, the program expanded nationally to every April sponsored by the national AILA office. However, our chapter, which I currently chair, expanded our program three years ago to multiple days and sites when we began our partnership with One America. Aside from lawyers who work pro bono, we also have volunteer translators, BIA accredited representatives, paralegals and other local citizens who help make the program successful. The Vancouver based newspaper, The Columbian, covered the event.

As a Seattle immigration lawyer, I don’t mind donating a few days of my time to the community along with other pro bono projects that I’m involved with for other organizations. Aside from being a fun day and a chance to get out of town, I like spending the day with my colleagues and the other volunteers, and counseling individuals who want a chance at participating more fully in their adopted homeland. Most people who apply for citizenship say they want the chance to vote and to participate politically, and I am inspired by their drive to be successful. Everyone served is appreciative of the service. On average, many of the clients who come to Citizenship Day have been permanent residents for many years. Often the steep filing fee of $680.00, not knowing where or how to get advice, and being ready to pass the civics and history or English test can be obstacles to applying. Those with difficult qualification issues who end up not filing that day are referred to other lawyers. Everyone is grateful for a chance to meet with a lawyer, learn more about the process and any issues they may have. Of those who clearly qualify, we help them prepare their applications so they are ready to be put into the mail. Most people we help are low income or of modest means who would ordinarily not be able to afford an attorney. With the State of Washington proposing to eliminate funding to nonprofits that traditionally provide pro bono or low cost citizenship help, AILA’s Citizenship Day is becoming even more important for the community, especially since immigration laws have become so complicated. And, with One America’s help, new citizens learn to become more engaged in their community.

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In my newer role on the Board of the International Section of the Washington State Bar Association (WSBA), I came to learn of an invaluable resource for foreign and American investors wanting to do business in Washington State. The WSBA just released the 5th edition of Doing Business in Washington State: A Guide for Foreign Business and Investment, edited by Randy J. Aliment, with articles written by lawyers in the fields of business, tax, real estate, intellectual property, antitrust, securities, litigation, dispute resolution, employment, commercial, bankruptcy and immigration law. The guide is written as an introductory “how to” that is simple to read and broad enough to cover the range of activities in running a business in our state.

The book is available in print and CD for $75 with discounts for bulk ordering. Product will ship after January 1, 2011. This is a particularly helpful resource for foreign investors thinking about starting or buying a U.S. entity or expanding operations in the U.S. EB-5 permanent entrepreneurs and E-1 treaty traders/E-2 treaty investors, L-1 multinational companies and others will find this book useful in planning who to hire, how to set up an entity and protect liabilities and assure tax compliance among other issues. The book is a collaboration with the Washington State Department of Commerce. In September 2010, Governor Christine Gregoire led a trade delegation of 100 Washington businesses to China and Vietnam back. The delegation brought a Chinese version of the CDs with them. The International Section of the WSBA plans to have the book translated into other languages.

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584383_united_states_passport.jpgImmigration enforcement legislation creates problems for U.S. citizens as well as for immigrants. Over the last few years, we have seen growth in our American citizen clientele because of new federal and state documentation burdens enacted under the guise of national security or to combat illegal immigration. The most common refrain we hear is: “I grew up in the U.S. I always thought I was an American but never had anything to show for it and I never needed the proof until now.” Ironically, we hear the same thing about the children of undocumented immigrants who have grown up in the U.S.; only now we are dealing with “undocumented Americans.”

Documentation burdens affecting American citizens include:

WHITI: WHITI stands for the Western Hemisphere International Travel Initiative. WHITI requires U.S. citizens to have one of these types of documents when returning from Canada, Mexico, the Caribbean or Bermuda: passports, enhanced drivers’ licenses, military cards with travel orders, Merchant Marine Cards, I872 American Indian or Enhanced Tribal cards, Trusted Traveler Cards (see below), or in the case of children under 16, original birth certificates, evidence of birth recorded abroad, or naturalization certificates.

The number of Americans holding U.S. passports has been fairly low compared to other countries, but filings have substantially increased in the last two to three years as WHITI was fazed in. Now, more Americans need passports or one of the documents listed above to re-enter the U.S. from travel destinations not far from the U.S. U.S. Customs and Border Protection (CBP) has a useful “Know Before You Go” brochure describing what documents are needed. Keep in mind that the cheaper Enhanced Drivers License only allows for reentry from specified countries, and only some states offer it. A U.S. Passport is more flexible and required for travel from other countries around the world. You can learn about Washington State’s Enhanced Drivers License here. To obtain a passport, see the U.S. Department of State’s website.
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