Friday, April 2, 2010

Supreme Court protects immigrants against bad legal advice.

The US Supreme Court issued a major decision this week, whereby immigrants must be advised that pleading guilty to a criminal charge could result in removal (deportation).

In the case of Padilla vs. Kentucky, a Vietnam War veteran with permanent residence (green card) had lived in the US legally for over 40 years. He was arrested in 2001 after authorities found 1,000 lbs of marijuana in his truck. Mr. Padilla pleaded guilty to marijuana trafficking, after his criminal lawyer told him that the guilty plea would not affect his immigration status. In fact, this plea rendered Mr. Padilla removable.  

The US Supreme Court held that the bad legal advice constituted ineffective assistance of counsel.  There exact wording of the decision states that
It is our responsibility under the Constitution to ensure that no criminal defendant—whether a citizen or not—is left to the “mercies of incompetent counsel.” Richardson, 397 U. S., at 771. To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less. 
Because counsel must inform a client whether his plea carries a risk of deportation, Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether he is entitled to relief depends on whether he has been prejudiced, a matter not addressed here.

The New York Times wrote about the decision here . The full text of the Supreme Court decision is here.

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Wednesday, March 31, 2010

Do I need to file an AC21 letter when I change jobs?

USCIS does not require you or the new employer to notify CIS if you change jobs and intend to use AC21 portability. Immigration attorneys are divided on whether filing such a letter is useful. It may prevent a Request for Evidence (RFE) later, but this is unlikely. CIS often sends RFEs in long-pending adjustment cases asking for an updated employment letter. Sending an AC21 letter at the time of the job change will probably not prevent such an RFE. 

Filing an AC21 letter at the time of job change may raise more questions than it answers, so I do not strongly recommend it. However, if a client prefers to send a letter, of course I will do that.

More important than notifying CIS is ensuring that the two positions are the same or similar BEFORE making any job change.


For more AC21 information, including links to USCIS guidance memos, see here.

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Monday, March 29, 2010

Can I do internship/volunteer work in dependent status?

A very frequently asked question is whether the dependent spouse of a nonimmigrant can do an unpaid internship or volunteer work. The spouse is commonly in H-4 status, which does not allow for independent work authorization. 

My view is that you cannot volunteer in H-4 status if your position would normally be a paid position or if you are providing services to a US company for a benefit. The benefit might not be money; it could be career opportunity, vocational experience, useful contacts, free products, etc. You could volunteer at a museum, perhaps, or homeless shelter, but generally not in a for-profit business. Many people ask if they can do unpaid internships, for example, and this is generally not permitted.

CIS has taken the view, in a different context, that volunteer work is that which, for example, is done without any expectation of compensation, where the volunteer did not require free goods in exchange for volunteering (nor were they offered), and that the volunteer would have performed the services regardless of whether he or she were to receive free products.