Avoid Problems at the Border

Canadians buying property in Florida often have questions about how to avoid problems at the border.

Florida has witnessed an influx of international real estate buyers in the last few years. About 32 percent of all international buyers are Canadian, according to a National Realtors Association report in 2014. Most plan to use the property for vacation between 3 to 6 months during the year.

From a U.S. immigration standpoint, there is no problem with foreign nationals owning property as long as the requirements of the tourist visa are followed. The trouble begins, if however, Canadians spend too much time in the U.S, or if the purpose of the entry does not match the type of visa being used.

For example, Canadians are permitted to visit for up to 6 months in a 12 month period, if entering as a tourist. This means the purpose of the visit must be for example, to visit relatives, or to look for a school. It is not for the purpose of working, or entering the U.S. to marry.   If the purpose of the visit does not comply with the actual visa being used at entry, the Immigration Service may deem the entry to be fraudulent.

Here is what you can do to avoid problems at the border:

  1. Be respectful and attentive to the officer, which means that it would be helpful to prepare the others in the car for the inspection. Have everyone take out their passport, turn off the radio if entering by car, and answer the questions truthfully. Never lose your temper, even if you think it is warranted. Remember, sometimes you just have to go through the process.
  2. Know the rules concerning your visa. Be able to state your reason for entering the U.S. succinctly. If you are a student with an F1 visa, be able to prove you are school. Or, if you have a business type visa, have sufficient documentation to substantiate your reason for coming to the U.S. The last thing you want to do is to go to the border with the notion that you intend to “visit”, but you really have the intent to marry and not return to Canada. There are ways to handle this issue in a legal way, but you need to seek the advice of immigration counsel prior to making a decision about traveling across the border.
  3. Have your receipts ready for any purchases made and know the limitations on duties.
  4. If you have overstayed your visit in the past, or if you have a criminal record, seek counsel prior to your trip.

 

 

The President’s Authority over Syrian Resettlement

Thomas W. GoldmanThe following presentation was made by Immigration Attorney Thomas W. Goldman to the Tiger Bay Club in Bradenton, FL March 3, 2016. 

The authority of the President to send refugees to Florida and other states is based on three laws:

  1. International law
  2. The Refugee Act of 1980
  3. Supremacy Clause of the US Constitution

In 1951, the United Nations adopted the Convention on Refugees, and the US was a signatory to this treaty. It did not require the different countries to take refugees, but the goal was that countries would do so. The United States has taken in refugees every year.

At the present time, there are as many as 60 million refugees around the world. I talked with a director of a resettlement agency in St. Petersburg, Florida and he said that when he started working 13 years ago, there were 10 million refugees.

The second law if the Refugee Act of 1980. Congress passed this law in order to set out a permanent procedure by which refugees would be admitted to the US. The Act places the responsibility on the President to determine how many refugees will be admitted and where they will be sent.

One requirement is that the President consult with the State and local government and private agencies before making this decision .

The third law if the Supremacy Clause of the US Constitution, which says that the federal government and the US Constitution takes precedence over state law and the state constitution.

The US Supreme Court in 1941 held that immigration law if a federal matter rather than a state matter. This was the case of Hines v. Davidowitz, and this was restated in the case of Arizona v. US in 2012.

Going back to the requirement of the President to consult with the states, the reason is to be sure that the services will be available in a particular area, and there will be job opportunities for the refugees.

Some states like Idaho, have in the past welcomed refugees for years because they want the workforce. With a population of 1.6 million, they have taken in 30,000 refugees from 53 countries since the 1970’s, mostly from Africa, Asia and the Middle East. But Idaho is one of the 31 states that requested the Administration to stop the placement of Syrian refugees until it could be assured that security issues were resolved.

Florida objected as well, but I believe now has accepted the fact that the federal government can send refugees to the state. Florida accepts money from the federal government for the resettlement program; the money go to the Florida Department of Children & Families which is the Refugee Coordinator.

At least two lawsuits have been filed. In December, 2015, Texas filed a lawsuit saying the federal government failed to consult with the state prior to resettling refugees in Texas, based on the Refugee Act of 1980. The first round was won by the federal government when a federal judge rejected the state’s request for a temporary restraining order. Syrians are now being sent to Texas.

The second suit was filed by the State of Alabama, on the same grounds, but with a twist. It is arguing that the consultation must be specific, not general. In other words, the federal government can’t simply send general information to the National Governor’s Association. Alabama wants the individual files of all of the refugees being sent to the state so it can make an independent determination of security risks. It wants the medical files as well.

Just last week, the Tennessee Senate passed a resolution to require a state lawsuit to stop refugees being placed in Tennessee. But it’s argument is based on the 10th Amendment which states that powers not delegated to the federal government are left to the State – and since Tennessee withdrew from the Refugee Resettlement program in 2008, the federal government has continued resettlement in the state. The state is arguing that the federal government is overstepping its authority because resettlement is causing the state to incur cost by providing social services.

Even if it is successful, the suit will only apply to refugees being initially placed within the state. Once a refugee is resettled, there is freedom to travel to any other state and receive social services.

This is a fast moving area and other states like Indiana have approached it differently. Rather than filing a lawsuit, the Governor issued an order that barred state agencies from helping Syrian refugees resettle in Indiana. Four days ago, a federal judge blocked the order because it “clearly discriminates” against refugees from Syria. Four Syrians were placed in Indiana in January, with plans to settle an additional 200 this year.

More than two dozen states have taken similar action to withhold funds. The governor of Indiana is going to appeal.

One last thought. It is important to understand the difference between a refugee and an asylum seeker. A refugee is a person who has left his or her home country and is unwilling or unable to return due to persecution based on race, religion, political views or belonging to a certain social group. They are outside the United States.

If a person comes here legally through the visa process, or illegally, an asylum application may be filed for the same reasons. The difference is that for all of those who do not file an asylum application, there is no vetting process. About 30% of those who enter the southern border are not from Mexico.

Between 2012 and 2014, 5,280 Syrians filed asylum applications, and 1,986 were granted.

  1. Syrians have other relief, once they make it to the US.
  1. If they were here on March 29, 2012 they were granted TPS
  2. Once they enter the US, an asylum application has to be filed within one year, but if they are late they can file for withholding of removal or protection under the Convention Against Torture
  3. If they entered illegally and stay here for 10 years and marry a permanent resident or citizen or have children in the US, they can ask a judge for cancellation of removal
  4. If they lose their case and are ordered deported, they can appeal. The process may take two to three years. If they lose the appeal, many of them don’t go back.
  5. If ICE finds them and they have a deportation order, they can ask ICE to let them stay in the US. (Prosecutorial Discretion)
  6. If they entered before the age of 16, they may be eligible to stay based on an Executive Order.

Hopefully, this will help give you an overview of the Syrian refugee issue from a legal point of view.

Immigration Policy of Family Reunification Needs Review

Immigration Policy of Family Reunification Needs Review

 

Immigration policy in the United States was fundamentally changed in 1965 with the passage by Congress of the Hart-Celler Immigration and Nationality Act, abolishing quotas based on national origin. In its place, a system focusing on family reunification became the focus of immigration policy.

 

The new law was a reflection of a change of attitude in America. Proponents of the law, including Senator ted Kennedy and President Lyndon Johnson believed immigration policy needed to be less restrictive, and what better goal than to give families the opportunity to be together. The architects of the law downplayed, or simply miscalculated, the impact of the law.

 

Fifty years later, millions of people have migrated to America as a result of the new policy. Family reunification allows a relative of a US citizen or lawful permanent resident to file for certain relatives, such as parents, spouses, children and siblings to join them in America.

 

Rather than policy makers deciding who should come to America, immigration is now on automatic pilot. The problem is that the reunification system has pushed aside opportunities to recruit highly education, skilled workers and others with talent who would benefit American society.

 

It is as though the immigration laws are upside down. American universities attract some of the brightest students in the world – yet the laws make it difficult for them to stay. Agricultural workers need an efficient immigration law which would allow them to come and work legally, yet the laws demand a cumbersome and costly procedure, which encourages illegal entry. In some cases, it is easier for a person who enters illegally to live and work in the U.S. than it is for a person who wants to go through the process the right way.

 

The number of people who cross our borders illegally, the number of visa overstays, and a lack of immigration enforcement has resulted in a negative view of immigration. If our policies and laws reduced the numbers coming though family reunification, and implemented a system focused on immigrant attributes that add to the economy, and increase the ability of the United States to better compete in the global economy, immigration over time would begin to be viewed in a more positive light.

 

We would not be the first country to incorporate such a system, which is commonly known as a “point system”. Canada’s immigration system was broad and generous until 2006, when the policy focused on admitting immigrants who would fuel economic prosperity. As a result, a high priority was placed on finding people who have the skills and experience required to meet Canada’s economic needs. Several categories of immigrants are accepted for permanent residence, including an 1) economic class (skilled or business immigrants and provincial nominees) 2) Family members, 3) refugees and others who qualify for humanitarian relief.

 

Business and family immigrants are not subject to a point system, but skilled workers must accumulate 67 out of 100 points to be a permanent resident. Points are gained in six categories:

 

            □ Education

            □ Language

            □ Experience

            □ Age

            □ Arranged employment

            □ Adaptability

 

The law is seeking to identify the types of persons who are most likely to integrate into the Canadian workforce based on their background. Points are allocated within these six categories based on the results of studies of the immigrant community. These studies have shown that the most important contributor to successful integration is language proficiency. Better rates of employment, appropriate employment and higher earnings follow language proficiency. The second most important contributor is youth. Younger immigrants between ages 35 to 46 integrate more rapidly and have more years to spend in the labor market. Applicants over 46 years of age may apply, but the points awarded diminish each year over 46.

 

A point system is a rational way to approach immigration because the philosophy is to have an immigration law which benefits society as a whole. This is akin to the way in which a business makes a decision. The organization, in this case, a country, is attempting to take action which benefits the organization as a whole and for the long term. Other categories of immigration are maintained, so that permanent residence may still be gained through family relationships,  investment, refugee status and humanitarian relief. And, a visa program for low skilled workers allows others to live and work in Canada.

 

A point system needs to be adopted in the United States so that at least some of the immigrants will be assured to have attributes which will contribute to the economy of the U.S. This is not to say that people who have entered under the family reunification policy have not contributed in extremely valuable ways to the American economy. However, the focus needs to be changed. The U.S. should continue to admit immigrants in the family reunification program, but also actively recruit highly talented and skilled individuals.

 

Truth and Immigration

Truth and Immigration

Although most of us are taught from birth that it is better to tell the truth, in reality society often encourages and even rewards deception. This is certainly true in the US immigration process. Answer “yes” to the question, “Have you ever committed a crime for which you have not been arrested?”, and the result is devastating. Failure to disclose you are now the married child of a lawful permanent resident can result  in denial of immigration benefits. Yet, in the minds of many immigrants, failure to disclose or even lying can be justified and worth the risk.

Justification can be found in different forms. Some view truth as being definable and objective. “It is what it is.” Others view truth within a cultural context, and relative to the circumstances. Rather than truth being “self-evident”, language and meaning are fluid and arbitrary. The result can lead to a “no” answer because the crime occurred a long time ago, and therefore how relevant is it? Or, it could lead to a decision to fail to disclose a marriage because “I deserve a visa to America.”

Failing to tell the truth is not always an attempt to deceive. An answer on a government form may be wrong, but innocently given due to a lack of understanding. But sadly, intentional false information is provided too often in the immigration process.   Two areas where misrepresentation is common are green card applications based on marriage and citizenship applications. Marriage fraud may occur, for example,  when cash is exchanged for vows, or when someone pitches in to help a family by agreeing to marry until the green card is issued. Pretending to be in a valid, loving relationship to receive an immigration benefit is a federal crime and viewed by Immigration and Customs Enforcement as a national security threat and endangers the immigration system.  Misrepresentation in citizenship applications is an ongoing problem, as well.  Immigrants marry a US citizen without divorcing a foreign national spouse, possibly believing that the USCIS will not discover the earlier marriage. An applicant may be in denial about a criminal conviction, believing “I was not really involved”, or “the case was dismissed”. Both examples result in a major miscalculation of how this will be viewed by USCIS.

As an immigration attorney, I have learned to ask questions more than once and in different ways to get to the truth. It is not comfortable to hear a USCIS officer ask an immigrant, “Have you ever been convicted of a crime?” and upon hearing the answer, respond ”Let me give you another chance to answer the question: “Have you ever been convicted of a crime?”

The immigrant has to understand that as far as the USCIS is concerned, truth is not relative. Either you married your spouse for the right reasons, or you didn’t. Either you told the truth on your application or you didn’t. Therefore, avoid asking your attorney “what should I say?” when asked a particular question- simply state the objective truth. Mark Twain said many years ago, “if you tell the truth, you won’t have to remember anything.” And, according to psychological studies, telling the truth is beneficial to your health.

Becoming a US Citizen

Becoming a US Citizen


A lawful permanent resident in the United States may be eligible to apply for US citizenship. In most cases, you need to be a resident for a certain number of years, and be in “continuance residence” during that time. Being a continuance resident means that you have not left the United States for a long period of time.
For example, if you leave the United States for a period of 6 months to a year, it may be necessary to prove you did not abandon your residency by being out of the country that long. This can be done by showing that you maintained ties to the US during this period of time. In other words, if you had an emergency that caused you to be out of the country and you continued to pay taxes, own property and demonstrate other personal and financial contacts, then citizenship could still be granted.
If you are out of the country for more than a year, it will be presumed that permanent resident status has been abandoned. The result could be that the green card would be taken by Immigration and Customs Enforcement and deportation proceedings commenced.
A simple step can be taken to avoid this problem by applying for a Re-entry permit. By notifying USCIS that an extended trip will be necessary, advance approval may be granted.
For answers to questions concerning US citizenship eligibility, contact us today at one of our convenient offices.

 

Obama Administration’s New Detention Program

Obama Administration’s New Detention Program

So many immigrants have shown up at the southern U.S. border, believing they will be given the opportunity to stay, the Obama administration has begun detaining Central Americans who have not left the country after receiving a deportation order from an immigration judge. The number of families escaping poverty and gang violence, particularly from El Salvador and Honduras has spiked over the past year. Most of these families travel through Mexico and turn themselves in to a U.S. Border agent. In some instances, Cubans, Venezuelans and others have been able to travel to South or Central America and then make their way to the border.

Once in the United States, if a claim of asylum is made, the family is given paperwork called a Notice to Appear, which explains they are to go to Immigration Court. Many of them never show up in court and are ordered removed from the United States in absentia. Others file their asylum applications and have a court hearing. If denied, an order of removal is the result. In other words, the family has an order of deportation.

You may think that an order of removal means the immigrant will have to leave the United States, but that is not the way it works. If the immigrant did not appear in court, a Motion to Reopen the case may be filed, or if there was an appearance, some other form of relief may be requested such as Prosecutorial Discretion which is an application to remain in the U.S. even though a deportation order has been entered. The removal order may be appealed, and this process can take 7 months or longer. If the appeal is denied, a Motion to Reopen or to Reconsider may be filed taking additional time.

Once the legal process is completed, the Department of Homeland Security simply does not have the resources to round everyone up and send them back. Instead, as of a few years ago, DHS has a policy of focusing on immigrants who have a criminal record.

To try to stem the tide from Mexico, the Bush administration used highly publicized raids on high profile businesses, and now the Obama administration has a new detention policy, which is to actually deport those from Central America who have deportation orders. It remains to be seen how extensive this effort will be or how long it will last. More than 12,000 people were apprehended at the border in October and November, compared with approximately 4,500 in the same months a year ago. since the administration is also trying to increase the number of immigrants who can remain in the United States through Executive Orders, this may be a short lived program once the numbers are reduced.

Of course, the overriding questions are about what reform laws, if any, should be passed, and what will happen to the millions of people in the U.S. without legal status. The emphasis on family reunification should be changed to a combination of family reunification and a point system which encourages immigration of those with education, capital and skills which will help the U.S. economy, and at the same time retain diversity of nationalities. The way to do this is not through comprehensive reform with the current political environment. Instead, you would hope and think that member of Congress could find a way to agree on some steps to take to begin the process of resolving the immigration issues we have.

Visa Waiver Program Changed

Visa Waiver Program Changed

The Visa Waiver Program (VWP) allows citizens of 38 countries to travel to the United States without a visa for up to 90 days. A valid Electronic System for Travel Authorization (ESTA) prior to travel is required.

The Visa Waiver Program is used for a number of purposes from tourism to taking a non-degree short course of study to negotiating a contract. However, studying for credit or actually being paid to work in the United States is not permitted. Tourists who want to stay longer than 90 days should apply for a B2 visa, and there are special visas for students, or those who want to work an live in the United States. For example, an internationally known artist may apply for an O visa, citizens of Mexico and Canada may apply for a TN visa if they have certain qualifying occupations, others may find a company to sponsor them with the H1B visa, and the E2 or L1 visa may be a path to operating a business in the United States.

Because there are many variables depending on the goals of the visa applicant and the eligibility requirements, it is important to seek the counsel of an immigration attorney before making a decision. A mistake can have long term implications.

The Visa Waiver Program was changed on December 18, 2015 with the 2016 Consolidated Appropriations Act (H.R. 2029) in three ways:

1) Individuals present in Iraq, Syria, Iran or Sudan on or after March 1, 2011, or other countries designated by the Department of Homeland Security) are ineligible for the Visa Waiver Program. Certain exemptions and waivers may be granted by the Department.

2) Nationals of Iraq, Syria, Iran or Sudan are excluded from the VWP.

3) New conditions for VWP countries, such as passport security requirements, information sharing and protocols for screening are imposed.

Iran, in particular, has reacted to the changes since many tourist and business travelers from around the world would be affected. Some have criticized H.R. 2029 saying that it conflicts with the Joint Comprehensive Plan of Action (JCPOA), which reads, “The EU and its Member States and the United States, consistent with their respective laws, will refrain from any policy specifically intended to directly and adversely affect the normalization of trade and economic relations with Iran.”

However, Secretary of State John Kerry has given assurances to Iran that the United States is committed to the sanctions lifting provided for under the JCPOA.

Ownership of Real Estate by Foreign Nationals

Foreign buyers spent in excess of 100 billion dollars in U.S. real estate during the last year. Sales of residential property to foreign nationals between April 2014 and March 2015 reached a new record, accounting for about 8 percent of total existing home sales, according to the National Association of Realtors.

While many countries restrict land sales to its own citizens, that is not the case in the United States. Except for limitations which may be imposed by community organizations such as homeowners or condominium associations, foreign  nationals may invest in homes or commercial properties.

However, there are differences, particularly in financing the purchase of property and the various taxes which may come into play. Financing is available, but more than likely interest rates will be higher and larger down payments may be required. The tax laws can have a negative impact for individual investors when it comes to the US estate tax, ownership in corporate names or in the name of trusts, and the sale of property. It is imperative to seek the advice of a tax professional prior to investing in U.S. property.

Many buyers live in the U.S. 6 months a year and in their home country the balance of the year, and they are able to do this, at least for a while on a tourist visa. Something to keep in mind is that if this schedule is kept up too long, a border guard may limit entry due to suspicion that the foreign national is working in the U.S., which of course, violates the visa.

Those who choose to become permanent residents have a little more freedom to come and go, but should not be out of the country for more than six months without prior approval from USCIS. Otherwise, the resident (green card holder) may be deemed to have abandoned permanent resident status.

After the Government Shutdown…

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Fortunately, the government shutdown did not cease interviews at USCIS. We continued to represent clients in marriage cases and to see officers at the USCIS windows checking on the status of cases. However, the immigration courts operated on a limited basis and now have to deal with all of the non-detained cases which were continued due to the shutdown.

Both the USCIS and immigration courts have been impacted due to the sheer numbers of cases and this is causing delays in response times. Today, when we called the VAWA hotline for assistance on a case, we were informed that the voicemail was full. When we were in court this week, ICE counsel reported that they were experiencing delays due to their offices being understaffed during the shutdown, but they are working diligently to get back on schedule.

Goldman & Loughlin Selected to Work with Award Winning Real Estate Comany

Wagner Realty, a company doing business in Manatee county for over 70 years and recipient of the Bradenton Herald’s Prestigious Readers Preference Award, naming Wagner Realty the area’s top real estate company fifteen years in a row, has partnered with Goldman & Loughlin to form an immigration team for foreign buyers.

An article appearing in Sarasota’s Herald-Tribune appears below:
Wagner expands services for foreign buyers

By Josh Salman

Published: Tuesday, September 10, 2013 at 1:00 a.m.

BRADENTON – One of Manatee County’s top real estate brokerages is taking a new approach to courting affluent foreigners, a segment of the market on the rebound.

Wagner Realty has expanded its business brokerage service to help foreign investors acquire new businesses here or to move to the U.S. via the purchase of a new home.

The service is the latest in a sweeping effort by Realtors throughout Southwest Florida to capture an uptick in spending by clients in Canada, the U.K. and other parts of Europe.

“We’re prepared to help them buy a home, but obviously, Realtors can’t do it alone if there are immigration issues,” said Ron Cornette, training and marketing director for Wagner Realty.

“It’s a different approach,” he said. “They need to know several things if they’re going to buy a home or business here, and we didn’t have the answers until now.”

Wagner Realty has hired Ken Swan, a former Manatee County banker, to expand the firm’s Business Brokerage Group.

The brokerage also has partnered with a local CPA firm, an immigration law firm and a prominent area business law firm so foreign buyers attempting to purchase property stateside can get answers in one place throughout the buying process.

The Bradenton realty firm also has placed ads in The Globe and Mail, a national Canadian newspaper based in Toronto.

Cornette hopes those efforts will help draw more foreigners, who have begun buying again in Florida in the wake of the Great Recession.

Real estate analysts say affluent foreigners — who often pay cash for properties — are one of the primary buying demographics helping to drive the region’s housing recovery.

About 20 percent of the region’s home buyers last year were from another country, and more than 14 percent of the Canadians who purchased a Florida property in 2012 did so in Sarasota or Manatee — the most of any market in Florida, according to data from Florida Realtors.

“We see a lot of it coming back now,” Cornette said.

Wagner’s push comes as RE/MAX Alliance in Sarasota, Michael Saunders & Co., Coldwell Banker and other brokerages have stepped up their efforts to court international clients, as well.

At Michael Saunders, the firm similarly targets foreign buyers through partnerships with three international brokerages.

A prominent online presence and short-term rental division to make early contact with potential buyers while they’re on vacation also has helped, firm marketing manager Jennifer Horvat said.

“You have to have the brokerage relationships and a strong online presence,” Cornette said. “And because they rent from us, they buy from us.”