Staying in America

What should the general practitioner do — and not do — for immigrant clients?

As more and more attorneys are starting solo/general practices, it is important to know some fundamentals of immigration law. This is especially true in Tennessee, where we have a large population of immigrants, some with legal status and others without any status.

If a prospective client came to your office for an initial consultation, would you know the right questions to ask to determine if you could assist them? One of the first questions you want to ask concerns his or her immigration status. Is the individual a United States citizen (USC), a lawful permanent resident (LPR), an overstay (meaning they legally entered the U.S. with a visa, such as B-2 visitor’s visa or F-1 student visa and did not leave the U.S. when the visa expired), or no status (meaning they illegally entered the U.S. or did so under fraudulent circumstances)?

Having determined the potential client’s status, another important question is what result is the individual seeking? Several options are citizenship, permanent residence, work authorization (work permit) or the generic — “How can I become legal?” Also, determine if any prior petitions were filed on their behalf. If so, what was the result? Find out whether the individual is in or previously has been in immigration court proceedings; if so, what was the result — deportation, voluntary departure, failed to leave after being ordered removed/deported?

The manner and date in which they entered the U.S. are important questions. There is a major difference in how a case is handled if the individual entered the U.S. with a visa such as a B-2 and never left, and someone who illegally entered the country.

Many potential clients have either just married or are considering getting married to a USC or LPR and want to know whether the immigrant will obtain legal status through the marriage. Some even believe the marriage itself automatically grants legal status. That is incorrect.

If a USC marries an individual (of the opposite sex) and the immigrant entered the U.S. with a visa, they may file an I-130 and I-485 so that the immigrant can “adjust status” while staying in the U.S. For Tennesseans, the farthest they will have to travel is Memphis for an interview with the U.S. Citizenship and Immigration Services (USCIS). Also, there are certain situations (called “245(i) cases”) where the immigrant illegally entered the U.S. by Dec. 21, 2000, a petition was filed for them by April 30, 2001, and then the immigrant is eligible to adjust status with the payment of a $1,000 penalty beyond the normal filing fees.

On the other hand, if the immigrant entered illegally, other steps must be taken. First, the USC or LPR spouse must file an I-130 petition. If approved, instead of adjusting status through the I-485, the immigrant must go through Immigrant Visa (IV) processing through the National Visa Center (NVC). Once the IV processing is finished, an appointment is set at the U.S. consulate in the immigrant’s home country. At this point, the immigrant must leave the U.S. and return to his/her home country. At the interview, the Consulate Officer won’t be able to issue a visa because of the immigrant’s previous unlawful presence. However, the officer can find the immigrant is eligible for an “extreme hardship” waiver. If so, the immigrant can schedule an appointment to file for an extreme hardship waiver. If the waiver is granted, the immigrant will receive a visa to return to the U.S., where he will receive his “green card.”

Another issue that an attorney may face is representation in General Sessions or Criminal Court of an immigrant, who receives a criminal citation, such as driving without a license, or is charged with a more serious crime. In this situation, the U.S. Supreme Court, in Padilla v. Kentucky, stated an attorney has a duty to ascertain the individual’s status — citizen, permanent resident, non-immigrant, or none — and advise the defendant about any possible immigration consequences of a conviction or plea of guilty.[1] Furthermore, you need to advise the defendant of the immigration consequences of failure to attend court, i.e., a bench warrant will be issued for his or her arrest and when jailed, his or her lack of citizenship may lead to Immigration & Customs Enforcement (ICE) detaining them for removal proceedings.

Other possible issues that attorneys may face in immigration are: if you represent employers, whether your client is in compliance on their I-9s and with the Tennessee Lawful Employment Act; and the need for representation in Immigration Court, where he or she is facing deportation.

Many times the best advice to give a potential immigrant client is to hire an immigration attorney; other times a general practitioner can provide good representation. However, I would not advise a general practitioner to represent employers in immigration compliance or individuals in Immigration Court. The risks are too great.

To learn more, attend the TBA Immigration Law Section’s seminar on April 20 in Nashville. https://www.tnbaru.com

Notes

  1. Padilla v. Kentucky, 130 S. Ct. 1473 (2010). For an in-depth discussion of an attorney’s obligations under Padilla, see http://adwww2.americanbar.org/sections/criminaljustice/CR109200/PublicDocuments/UpheavalPadillaKentucky.pdf and http://www.denverlawreview.org/practitioners-pieces/2011/4/29/padilla-v-kentucky-the-duty-of-defense-counsel-representing.html.

BRUCE E. BUCHANAN BRUCE E. BUCHANAN is the partner-in-charge of Immigration Practice at King & Ballow in Nashville. He is the chair of TBA’s Immigration Law Section. Buchanan graduated from Vanderbilt School of Law in 1982 and Florida State University in 1979. His practice includes representation of employers in immigration, labor and employment law, as well as individuals in immigration law. Buchanan authors a blog, at www.kbimmigration.com/webline, which covers immigration compliance issues. He is also a guest blogger for http:// everifyandi9news.com and the editor of TBA’s Immigration Law Section Newsletter and TBA’s Labor and Employment Law Newsletter.