With the H-1B visa limits in mind, during immigration consultations in my Boston office, I'd typically advise immigration clients that if they didn't submit their H-1B visa petition on the earliest possible moment--April 1--their prospects for success were subject to chance. I described the H-1B visa application as sort of like a lottery. An element of luck existed because even if your H-1B visa application was valid and deserved to be approved, who knew whether your petition would be fortunate enough to be selected? And in years past, H-1B visas were gone within days of becoming available.

But now that the economy has cratered and unemployment has shot up to nearly 10%, something astonishing has happened--H-1B visas are sitting on the shelf, there for the asking! As of May 18, 2009, U.S. Citizenship and Immigration Services (USCIS) reported that 20,000 H-1B visas were still available. And today USCIS continues to accept H-1B visas petitions. USCIS will be posting updates periodically on visa availability. Who know when or even if the H-1B visas cap will be met?

So from these bad economic times comes some good news: H-1B visas appear to be still available. If you need a work visa either as an employer or an employee, give me a call in my Boston office at 617-722-0005. We can evaluate your immigration options and determine if an H-1B visa is appropriate for your case.

But sealing or expunging your criminal record does not free you from immigration consequences resulting from a criminal record.  A conviction--even if it's been sealed or expunged--can still trigger your deportation.  And USCIS (U.S. Citizenship and Immigration Services) can deny your green card or citizenship application because of a sealed or expunged criminal record.

And sealing or expunging also doesn't free you from your obligation to disclose your criminal record on immigration forms.  If you apply for adjustment of status, citizenship or a visa at a U.S. consulate abroad, you will have to disclose your criminal record, even if the case was sealed by a Massachusetts state court judge. Failure to disclose a sealed criminal record in an immigration interview could be considered false testimony, which would give USCIS grounds for denying your immigration case.

An even more complicated problem is that USCIS generally will not approve your green card or citizenship application unless you provide court-certified copies of the final disposition for each criminal appearance. But if your case is sealed, no record will exist in the court's file. So it is generally impossible to obtain a certified disposition of your case once it has been sealed. The only solution to this dilemma would be to go back to Massachusetts state court and ask the judge to unseal your case simply so that you can get a copy of the disposition--not a fun task.

If you're considering sealing or expunging your criminal record, and you don't have U.S. citizenship, think through your options carefully and consult with a competent, effective. immigration lawyer. If you have more questions about how a criminal case could affect your immigration options, call my Boston office today at (617) 722-0005 and schedule a consultation. I'd be happy to offer you my advice.

But being selected does not mean that you will automatically get a green card and become a permanent resident.  What it does mean is that you will be eligible to go through a complex immigration process on the basis of being selected for the DV Lottery. 

To obtain your permanent residency based on the DV Lottery, you must meet the following two conditions:

1.  You must have either a high school diploma or the equivalent.  Alternatively, you can show that within 5 years of applying, you have at least 2 years of work experience in a job requiring at least 2 years' of training or experience.

2.  You must complete the green card or immigration visa process within the fiscal year.  If you are selected after filing for the most recent DV Lottery, the fiscal year runs from October 1, 2009 through September 30, 2010.  After that time period, under no circumstances will you be able to receive an immigrant visa, even if you were selected.

In addition, here are two important consideration for those pursuing a green card through the DV Lottery:

1.  If you've been selected for the Diversity Visa lottery, you may include your spouse and children on your green card or immigrant visa application.  This is true even if your marriage took place after you submitted your DV Lottery entry.

2.  Adjustment of status or consular processing?  If you have been selected to receive a DV Lottery visa and are outside the United States, you must apply for an immigrant visa through the Department of State and a U.S. Consulate abroad.  If you are in the U.S., you  you have 2 options: (1) apply for adjustment of status by filing Form I-485 with U.S. Citizenship and Immigration Services (USCIS), or (2) follow the consular processing steps and obtain your green card at a U.S. Consulate abroad. Choosing the best option invovles juggling many factors.  An effective immigration attorney can help advise you on the best strategy.

If you've been selected to receive DV Lottery and need legal advice to overcome the hurdles that still stand between you and your green card, please call me in my Boston immigration law office at (617) 722-0005.

The short answer is no. According to the Board of Immigration Appeals, a juvenile adjudication isn't considered a criminal conviction for immigration purposes. The logic behind this rule is that juvenile proceedings are not criminal. So a delinquency finding on a deportable offense will not cause a juvenile to be deported.

But beware: juvenile adjudications can trigger other adverse immigration consequences. They can be used to bar a finding of "good moral character", which is a requirement for naturalization and other forms of relief from deportation such as cancellation of removal. Also, as a discretionary matter, Immigration Judges can view juvenile activities as a negative factor when considering any application for relief from deportation.

And some immigration provisions don't require the existence of a conviction and can be based on an admission of guilt or merely a perceived "reason to believe" that the person has been involved in criminal activity. For instance, a person can be denied adjustment of status to permanent residency or entry into the United States based on an Immigration Judge's "reason to believe" that the person has been involved in drug trafficking or money laundering. The "reason to believe" could be based on non-criminal juvenile proceedings.

To summarize my advice, a youthful offender conviction or a juvenile delinquency finding is not considered a "conviction" for immigration purposes and, therefore, can't be the basis for deportation. But such adjudications should be avoided because they could affect a person's immigration status in other ways.

Two final points:

1. Massachusetts Youthful Offender Law: This statute permits children between the ages of 14 and 17 to be prosecuted as adults when charged with serious felony crimes. It is possible that at some point, immigration authorities could make a legal argument that youthful offender convictions should carry the same immigration consequences as adult convictions. But from my research, no federal cases, published Board of Immigration Appeals decisions or other legal authority support this position.

2. Juvenile dispositions must be disclosed:  Appearances in juvenile court, although not criminal, must be disclosed on immigration forms such as applications for adjustment of status to permanent residency (I-485), and applications for naturalization (N-400).

If you have further questions about the deportation, juvenile proceedings, or possible immigration consequences, feel free to call me at (617) 722-0005. Schedule an consultation with me in my Boston immigration offices. I'd be happy to help you.

In my years of experience as an immigration lawyer specializing in deportation cases, I've noticed that many of my clients don't have cars and rely on public transportation. My clients need to travel from Boston area to the Burlington, MA immigration office to post immigration bonds or to report in for orders of supervision or orders of recognizance. My immigration clients often ask me how to get to ICE's Burlington office from Boston using public transportation.

The answer is quite simple. Take the MBTA Red Line to Alewife Station. From there, take the 350 Bus to the Burlington Mall, which is located adjacent to the office of Immigration and Customs Enforcement. The schedule for the 350 Bus can be found here.

The address, once again, for ICE in Burlington is:

U.S. Immigration and Customs Enforcement (ICE)
Office of Detention and Removal Operations (DRO)
10 New England Executive Park
Burlington, Massachusetts 01803

I hope this information is helpful to you.  Should you need assistance with an immigration case, please call my office at (617) 722-0005 and schedule an immigration consultation to meet with me.

But the sad reality is that for some people who must appear in Immigration Court, the facts of their particular cases render them ineligible for any relief from deportation. For such cases, there is simply no way under the current immigration laws to prevent deportation. And, when faced with limited options, many lawyers routinely ask the Immigration Judge for an order of voluntary departure.

Voluntary departure permits a person to leave the United States voluntary and it removes a bar to inadmissibility that would otherwise result from being deported, i.e., receiving an order of removal. The consequences of being deported are indeed severe. If you receive an order of removal, you would be inadmissible for 10 years. And this 10 year bar runs from the date that you are physically removed from the United States, not the date that the Immigration Judge ordered your removal.

Although voluntary departure may help you avoid deportation, the consequences of failing to comply with a voluntary departure order may be worse than deportation itself.  Consider that a person who is granted voluntary departure after 1996 but fails to voluntarily leave the United States may face:

• civil penalties including fines of $3,000; and
  
• a 10-year bar from important immigration options such as cancellation of removal, adjustment of status, and change of status;
  

In Boston, immigration lawyers and the Immigration Court have a tradition of warm relationship, for which we can thank the leadership of Court's Administrator Robert Halpin.  As a liaison, I'm happy to be able make a small contribution to this on-going comity.

Although the Immigration Court will be closed, I'll be hard at work. If you need the help of an immigration lawyer, call me at (617) 722-0005 and come see me in my Boston immigration law office.

People often underestimate the power of an Immigration Judge's discretion.  So I'd like to give you three specific examples of how Immigration Judges have the discretion to decide deportation cases:

#1:  "Why did the Immigration Judge deny my case?  All of my criminal cases were dismissed!"  Imagine that you are married to a U.S. citizen and are applying for a green card.  You have a hearing before an Immigration Judge for your I-485 application to adjust your status to permanent residency.  You have been arrested several times but all of your criminal cases were dismissed.  Even though your criminal charges didn't result in a conviction, it would be a mistake to assume that the Immigration Judge will automatically approve your I-485 just because your criminal cases did not result in a conviction.  You are not necessarily entitled to a green card.  The Immigration Judge has discretion to approve or deny your green card application.  In making that decision, the Immigration Judge will want to know more about your criminal cases even if you were not convicted.  The Judge will weigh the evidence and reach a decision in their discretion.  And if you don't convince the Immigration Judge that you deserve to become a permanent resident, you are going to lose.

#2:  Immigration Bond.  If Immigration and Customs Enforcement ("ICE") arrests you and puts you in jail, you have a right to a bond hearing where you may ask an Immigration Judge to release you on an immigration bond.  The immigration regulations require the Immigration Judge to make three important discretionary decisions.  First, as a threshold matter, the Judge must decide whether you are a danger to the community.  Unless this decision is in your favor, you will not be released on bond. Second, if the Immigration Judge believes that you are not a danger to the community, the Immigration Judge will then decide whether you are likely to return to court if released.  And, third, if the Immigration Judge decides that you are not a danger to the community and that you are likely to return to Immigration Court for future hearings, the Judge will determine the cost of the bond.  The important point is that these three key decisions--dangerousness, flight-risk, and cost of bond--are all entirely within the Immigration Judge's discretion to determine as he or she sees fit.

#3 Asylum:  If you are applying for asylum in Immigration Court, you must convince an Immigration Judge that you have suffered past persecution or have a well-founded fear of returning to your home country. To prove your claim, you may testify and present evidence.  An Immigration Judge has the discretion to decide whether you are telling the truth and whether your case deserves to be approved or denied.

If you lose in Immigration Court because the Immigration Judge makes a discretionary decision that you dislike or disagree with, you do have the right to appeal to the Board of Immigration Appeals.  But no matter how much you disagree with the outcome of your case, it is extremely difficult to successfully challenge an Immigration Judge's discretionary decision.  Appealing the denial of your bond is particularly difficult because you will be in jail while the appeal is pending.  The likely result of your appeal could merely prolong your time in jail.

In short, winning or losing in Immigration Court usually boils down to an Immigration Judge's discretionary decision. And my job as a deportation defense attorney is to persuade the Immigration Judge to make a discretionary decision in your favor.

If you have questions about Boston Immigration Court, bonds, hearing, trial strategy or other issues; or if you need an attorney to represent you, please call me in my Boston office at (617) 722-0005 to schedule an immigration consultation.

Although Cubans who are paroled into the U.S. have a clear path to permanent residency (getting a green card), they are placed into the deportation proceedings and, therefore, must appear before an Immigration Judge in Immigration Court.

Until recently, Immigration Judges had jurisdiction over adjustment of status applications (I-485 or green card applications) filed by Cubans, and Cubans would apply for their green cards through Immigration Court and before an Immigration Judge. The Court then could grant their green card and simultaneously take them out of removal proceedings.

But now, according to the Board of immigration Appeals in Matter of Martinez-Montalvo, 24 I&N Dec. 778 (BIA 2009), Immigration Judges have no jurisdiction over adjustment of status applications (I-485 or green card applications) filed by Cubans who have been paroled into the U.S. under the Cuban Refugee Act. Instead, to obtain green cards, Cuban parolees must file their I-485 with U.S. Citizenship and Immigration Services ("USCIS").

This Board of Immigration Appeals decision puts Cuban parolees in an odd situation: they must appear in Immigration Court, yet Immigration Court has no jurisdiction over the adjustment of status applications that they are eligible to file. If you are a Cuban national who is in removal proceedings, your most likely option is that your lawyer will ask the Immigration Judge to continue your case until USCIS adjudicates your I-485. The problem is that it could easily take two years for USCIS to make a decision on the I-485!

To me, this new scenario for Cuban asylees makes no sense. It clogs the docket and wastes the Immigration Court's limited resources. 

If you have questions about the deportation process, Cuban adjustment, other immigration issues, or if you are seeking an attorney to represent you in Boston Immigration Court, call my Boston office at (617) 722-0005 to set up an immigration consultation.

Research your client's criminal history before submitting the N-400 application for naturalization by requesting an FBI rap sheet or Interstate Identification Index ("III") and a Massachusetts CORI.  The FBI III is based on fingerprints.  My office fingerprints immigration clients in-house using this kit.  The Massachusetts CORI is based on name and date of birth, which is why it is essential to list on the form every possible spelling of your client's name, as well as aliases. Keep in mind that these records are notoriously inaccurate.  The final step is to track down criminal dispositions for all court appearances.  Remember: your job as an immigration lawyer isn't done until you have closely reviewed court-certified final criminal dispositions showing all docket sheets for each court appearance.

Selective Service and Citizenship.  For male naturalization applicants, failure to register for Selective Service for permanent residents between the age of 19 and 26 bars a finding of good moral character during the requisite three or five year period but only if the applicant knowingly or willfully failed to register.  In my experience as an immigration lawyer, many clients mistakenly believe that they forgot to register for Selective Service when, in fact, they actually did.  If your client says that he never registered with Selective Service, you should double check to make sure he's right.  You can use the Selective Service Online Registration Verification available here. If your client's Selective Service information is not found, this does not necessarily mean that he failed to register. You should then call the agency at 888-655-1825 to see if his registration is in the system. And, finally, to prepare for the naturalization interview, you should request a status of information letter from Selective Service.

Fill out the N-400 with meticulous attention to detail to avoid "false testimony."  Even the smallest mistake on the N-400 form could be used as an excuse to deny your immigration client's N-400.  As a matter of good moral character, an applicant for citizenship can be denied if, during the requisite period of time, he or she knowingly provides false or misleading information to an immigration officer for the purposes of obtaining an immigration benefit.  Using this legal standard, USCIS could construe inaccurate information on the naturalization application as a deliberate lie and, therefore, a ground for denial. This comes into play particularly when disclosing adverse information such as criminal appearances.

Good Moral Character: how to determine whether your client has met the standard.  To obtain US citizenship through the naturalization process, you ordinarily must show good moral character for 5 years or for 3 years if your claim is based on marriage to a US citizen.  If your client has a criminal conviction, it may be necessary to wait to file the N-400 until the date the offense was committed is outside the 3- or 5-year period.