Statutes of Liberty

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Janice Chen, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

The Supreme Court is taking an important case next term — Loper Bright Enterprises v. Raimondo — in which we expect a foundational element of American constitutional law to change.

If the Court decides the case as we expect, there will be knock-on effects in practically every area of federal law. We’ll focus on immigration here, because that’s our specialty.

First, some background: What is at stake?

In the 1930s, the Roosevelt Administration fundamentally changed the federal government via a vast expansion both of federal power and a concomitant expansion of federal law. New administrative agencies both created and enforced rules across the country. In 1948, Congress sought to regularize the process by which rules were created and interpreted in the Administrative Procedure Act. The APA was largely successful in setting procedures for the creation of regulation, but the question of interpretation remained troublesome.

In 1984, the Supreme Court decided Chevron U.S.A. v. NRDC, and settled (for forty years) the question of how to interpret federal regulations. Chevron Deference, as it became known, is that federal courts should defer to the expert judgment of administrative agencies, in the interpretation of administrative regulations, so long as Congress has not spoken directly on the issue at hand. This allows administrative agencies — which are, in theory and practice, more familiar with their own regulations and the underlying facts than federal judges — to apply their expert judgment, within fairly broad bounds.

Immigration regulations are just like any other form of regulation. As we have explained in these pages, the Attorney General is the Grand Poobah of immigration regulation and interpretation; all Immigration Judges, all Board of Immigration Appeals judges, and indeed all immigration adjudicators are merely his legatees. Thus, the Attorney General has broad deference, under Chevron, to construe immigration regulations within the broad outlines set by the Immigration and Nationality Act, as amended.

When the Supreme Court overturns Chevron in Loper Bright Enterprises v. Raimondo, as we expect it will, the Attorney General will no longer have such broad power to interpret immigration regulations. The substantive effects will depend on how strictly the Court clips the wings of administrative agencies. At its most extreme, Loper Bright could make individual federal judges the primary interpreters of immigration regulations; a more measured decision would simply enlarge the role of judiciary in overseeing regulatory interpretation.

Over time, our prediction is that the end of Chevron will lead to a slow change in the nature immigration regulation — a change which would be, in general, positive for our clients. Federal judges tend to be more sympathetic to immigrants who challenge restrictive interpretations of the Immigration and Nationality Act than immigration adjudicators are. But, of course, that tendency is not universal. Immigration skeptics are well aware of which federal judges are less sympathetic than the norm, and they know how to file civil actions.

If federal judges become more hands-on in the realm of administrative law, federal judges will issue conflicting decisions concerning the same regulations. Those conflict will filter up through the Circuit Courts of Appeal to the Supreme Court. The Court may prefer, as a matter of jurisprudence, to center the interpretation of federal regulation in Article III courts; but the Court may have practical reasons to regret its principles.

As always, we welcome your comments and will do our best to respond.

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Janice Chen, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

Our little law office is hiring for two positions: Attorney and Legal Intern (Fall Semester). The details and tips on how to apply are below, in Q&A style.

Q: Hiring, eh? How much cash on the barrel?

A: Depends on the position. The Attorney position comes with a starting salary of $69,300, with a small bonus at the end of the year. The Legal Intern position is paid hourly, and the amount depends on your background. (Certain local law schools won’t give you class credit if we pay you. We prefer to pay you, but we can forgo paying you if that’s what you need.)

Q: What? I thought that lawyers dove into piles of gold coins all day, like Scrooge McDuck!

A: It depends. On Wall Street, we are reliably informed that big law firm partners can make more than $15,000,000 per year — more than the bankers who pay them! Immigration lawyers are much more modestly compensated.

Q: Why should I work for you? The salary is competitive with local nonprofits, and many local for-profits pay more.

A: I’m glad you asked. Here are the reasons to work here, one paragraph at a time.

Generous Benefits

We offer extremely generous benefits — better than every local nonprofit, including paid parental leave, 70% of health insurance/vision/dental covered from your first day on, FSA, retirement plan with a generous match — you name it, we offer it!

Easy Commute

Commuting into D.C. is for masochists. Working here isn’t. Our beautiful old office, built in 1870, is in the heart of Falls Church. We have plenty of free parking and a verdant, wooded landscape around our building.

Helping People in Need

Our clients come from all walks of life. Some come from vulnerable circumstances. You’ll work with them, and you’ll make a huge difference for them.

Collegial Environment

We pride ourselves on not running a high-volume operation. You won’t be forced to take cases. Instead, you’ll evaluate cases on your own, and build your own docket within the firm based on your own capacity and interests. We offer both independence and mentorship for new lawyers.

Q: Do you offer Work from Home?

A: No. Why? Because, as noted, we work with many people who come from vulnerable circumstances. These clients are best served by meeting with you in person. We are unwilling to compromise on this point, because, shorn of the verbiage, WFH means telling poor people to go pound sand.

Q: You don’t sound fun.

A: We are so, so fun. We do go-karting! We build furniture! We make fun of Elon Musk!

Q: How do I apply?

A: Email James at [email protected]. Send a CV and a cover letter.

Q: What are the requirements for each position?

A: For Attorney, we require a bar license and a JD. We’re happy to hire new lawyers. Spanish fluency is a big plus. Immigration experience is, of course, a plus too.

A(2): For Legal Intern, we require that you be enrolled at a local law school. That’s it! We’re here to help with your education and pay you a decent wage.

Questions about the jobs? Ask in the comments. We’ll respond, just like we always do.

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Janice Chen, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

Any of us who have ever applied for a job know the joyous feelings of filling out paperwork. Then, if you actually get the job, then there’s usually even more paperwork.

Part of that paperwork includes the Form I-9.

The Form I-9 is a Department of Homeland Security form that employers request new employees to complete to show that the employee is authorized to work in the United States. The purpose of the completed form and the documents submitted along with it are two-fold: (1) to establish the employee’s identity and (2) establish the employee’s authorization to work in the United States.

The tricky part usually arises when it’s time for the employee to show the document or documents that establish her identity and authorization to work. To satisfy these requirements, there are lists of various acceptable documents. Some documents, referred to List A documents, establish both identity and authorization to work. Prime examples are U.S. passports, green cards, and work permits.

In the alternative, employees can show a combination of documents from Lists B and C. List B documents establish identity. The most common List B document is a state-issued ID or driver’s license. List C documents establish work authorization. One of the most common ways to establish work authorization is presenting an unrestricted social security card; this means that the card does have any notations on it indicating that the social security card has to be presented with another particular document, like a work permit.

The reason this becomes tricky is because many employers do not fully understand the rules regarding the I-9 and the acceptable documents a worker can present. Employers are absolutely not permitted to dictate which documents a worker must present to satisfy the I-9 except in extremely limited circumstances, like federal government employment or a job involving federal contracts that require that workers be U.S. citizens or green card holders.

If any of those exceptions do not apply, the worker gets to decide which documents to present. Employers are not permitted to demand that a person submit a specific document; doing so could result in a charge of document discrimination.

Document discrimination is prohibited under the Immigration and Nationality Act, 8 USC § 1324b(a)(6). Here are some common scenarios in which we see employers request documents when it is inappropriate to do so:

(1) Jane has a work permit because she has a pending green card application. Jane filed to renew her work permit before her current one expired. Jane also received the official receipt noting that she timely filed her work permit renewal application, and the receipt states that she has an automatic 540-day extension even if her current work permit is facially invalid. Thus, she is permitted to work as long as she presents her expired work permit along with the official receipt.

Jane applies for and gets a new job right after her work permit expires. When she arrives for her first day of work, she fills out the I-9 and provides her documentation. But the employer tells her that the expired work permit plus the receipt notice is unacceptable. The employer then demands a valid work permit card.

The employer in Jane’s case is in the wrong here and is (intentionally or unintentionally) discriminating against Jane based on her documentation. Employers must be aware of the rules regarding expired documents plus receipts, and the Form I-9 itself even states that the I-9 instructions address acceptable receipts as proof of work eligibility.

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This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

Since 1967, the United States has been committed, by law, to allowing refugees and asylum seekers to seek protection from persecution.

Asylum seekers often have difficulty making such requests. Intrinsic factors, like linguistic and cultural differences sometimes play a role, but the government bears its share of responsibility, too. As we’ve previously described in these pages, the required application is voluminous, the instructions are written in impenetrable legalese, the waiting periods are unpredictable and frequently lengthy.

The Biden Administration inherited this legal apparatus along with a major problem at the border: large numbers of asylum seekers, and not enough judges, detention beds, and processing centers to deal with the influx. Initially, the Biden Administration appeared to be using a carrot and stick approach, as we described here, to limit migration from certain high-volume countries. Recently, the Biden Administration has introduced a new tool to limit asylum applications — the CBP One App.

We try to offer more information than opinion in our coverage of immigration issues for ARLnow. The CBP One App tests that equanimity, because it is spectacularly bad from every perspective — bad from the perspective of migrants, bad from the perspective of immigration restrictionists, and bad from the perspective of legal procedure.

First, a brief explainer of what the CBP One App is, and how it works.

The CBP One App is an information-gathering mobile phone application which collects information from asylum seekers. Once you create an account — no easy process, which requires a separate account at login.gov — you can try to schedule an appointment at the port of entry, at which time you can seek protection as an asylum seeker. If you do not have an appointment at the port of entry — and if you do not fit one of a growing list of exceptions, about which more shortly — you’re effectively unable to make an asylum claim.

Until May 10, 2023 the appointment scheduling process was simple and frustratingly familiar to parents of children at local summer camps: log into the app at 10 a.m. Central Standard Time, try to make an appointment, then watch the app crash due to everyone else trying to log in at the same time.

Since May 10, 2023, the appointment registration process has improved, somewhat, through another layer of complexity — you submit what is effectively a daily lottery application; then CBP uses a semi-random (and wholly opaque) method to apportion appointments; if selected, you  have a 23-hour window to accept an appointment which might be next door — or might be 1500 miles away. But you probably won’t be selected; the number of appointments is vastly lower than the demand.

Can you avoid using the CBP One App? Yes, you can: if you meet a confusing and unpredictably applied list of possible exceptions, which include:

• Encountering technical difficulties with the app. (Note: Everyone has these difficulties.)
• Language barriers (Note: the CBP One App only provides instructions in English, Spanish, and Haitian Creole)

So, why is this app bad from every conceivable perspective?

1. From the perspective of migrants, the CBP One App is bad because it doesn’t work properly, doesn’t have sufficient appointment availability, requires a strong WiFi connection, doesn’t provide instructions in most languages, and sets up appointments thousands of miles away. Also, the UX is bad.
2. From the perspective of immigration restrictionists, the CBP One App is bad because it allows people to seek asylum while specifically disclaiming that it is a method for seeking asylum. (“The app is not a method of seeking asylum in the United States, and CBP officers do not determine the validity of any claims for protection.” 88 Fed. Reg. 31,358.) If you do manage to get an appointment through the app, reports indicate that you are allowed into the United States 99% of the time to pursue a claim for relief. Finally, the exceptions (including for technical glitches!) threaten to swallow the rule requiring use of the app.
3. From the perspective of law, the CBP One App is bad because the United States has been committed, for more than fifty years, to allowing refugees to apply for protection. The CBP One App adds a bizarre and interminable lottery as a threshold for entry to make a legal claim. Getting lucky should never be a prerequisite for having your day in court.

As always, we welcome your comments and will do our best to respond.

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

Our loyal reader(s) will recall that we have covered various programs which allow foreign nationals from countries suffering from difficult circumstances to travel legally to the United States and obtain work authorization.

Most notably, the first was the Uniting for Ukraine program; then came a similar program for Venezuelans; and finally, a program for Cubans, Haitians, and Nicaraguans.

On April 27, 2023, the Department of Homeland Security and the Department of State jointly announced new measures to help decrease irregular regional migration to the United States. The biggest part of that announcement is the creation of a family reunification parole process. This process will apply to nationals of El Salvador, Guatemala, Honduras, and Colombia.

This parole process has important differences from the earlier parole processes that have come to fruition during the Biden Administration. The earlier processes require a sponsor who requests that the foreign national be able to come to the United States. The sponsor and the foreign national do not have to be related in any way.

By contrast, as the name “family reunification” suggests, the new parole program announced at the end of April will require a family relationship. In fact, a U.S. citizen or lawful permanent resident must have filed a family petition for their relative and the petition must be approved. U.S. citizens can file family petitions for parents, children, adult sons and daughters regardless of marital status, and siblings. Lawful permanent residents can file family petitions for spouses, children, and adult, unmarried sons and daughters.

As part of the family petition adjudication process, U.S. Citizenship and Immigration Services will determine whether the foreign national relative should be invited to participate in the parole program. The invitation from the U.S. government is a requirement; the relative cannot simply request parole to travel to the United States.

If the relative is invited and approved for parole, the relative may travel to the United States legally. The relative would also be eligible for work authorization.

For now, this is the only information we have. U.S. Citizenship and Immigration Services expects to release more details in mid-June. But what do we think about this?

If this program works well, we expect that it will indeed assist with family reunification, especially for those family members who have to wait a long time to apply for their green cards due to visa unavailability. For example, there are only 65,000 visas allotted for brothers and sisters of U.S. citizens each year.

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This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

[A note: There is plenty of immigration news this week, but we’ll get to it next time. Today, we want to remember a friend of our immigration practice, and a friend of all dogs, Jane Leclerc. We hope that you enjoy our eulogy for Jane.]

Jane Leclerc — her last name rhymed with care — died on March 17, 2023, in Arlington, at 7:37 in the evening. Her death was not felt by the public. Her passing was marked, some weeks later, by a gathering of friends.

Such people are not memorialized adequately. The secondary purpose of this eulogy is, in a small way, to remedy that; the primary purpose, of course, is to remember Jane.

Jane was born on January 7, 1949 in New London, Connecticut. After graduating from St. Bernard High School in nearby Montville, and then from Southern Connecticut State University, she came to Washington to volunteer at the Carter White House, where she worked in the Correspondence Unit. (One imagines an unending flood of typewritten letters complaining about gas prices — nothing has changed, in the intervening forty-five years, except of course for the typewriters.)

At some point — and here, the dates are entirely unclear — she married, then quickly separated from her husband; the writer never asked for any details, and she never imparted any.

After leaving the Carter White House, she took up a position in the correspondence section of the U.S. Department of Agriculture’s Food Safety and Inspection Service. (One imagines an unending flood of typewritten letters complaining about bad hamburgers and queasy-making lettuce; nothing has changed, vide supra.) She worked there for twenty years. Of her triumphs and tragedies within those walls, the writer again knows little, other than that her former coworkers describe her as patient and indefatigable.

Jane had less ambition to crush and conquer than most people who move to Washington, so she retired from the federal service at 55, when she was still young. She devoted the remainder of her life to the service of people and vulnerable animals. She helped one gentleman, unschooled in the ways of bureaucracy, to obtain his SSI benefits; she helped an entire family of Congolese refugees to wend their way through the immigration system and settle in the United States; she paid the tuition bills for a young Macedonian chemist and then helped her — the chemist, that is — to move to Germany, where she could exercise her profession. These acts of kindness led the chemist to name her daughter Jana, in honor of what Jane Leclerc had done.

Those are the acts of supererogatory charity known to the writer; surely, in the nature of things, there were many others.

Jane also had a frankly shocking love of animals. She had an interest, then a hobby, then a mania for elderly Italian Greyhounds. She adopted them late in life, sometimes two at a time, and nursed them until they died. The writer once visited her at home; he asked her, uncomprehendingly, “Why are there three dogs on the floor, and why do they have no teeth?” A partially satisfactory explanation followed.

Italian Greyhounds of a certain age meet with the same indignities that we do, if we are lucky enough to get there — incontinence, cataracts, and inconvenient digestions. She walked them constantly, paid for their eye surgeries, and fed them raw chicken.

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This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

When The New York Times and The New York Post are running the same headline, there is often something to the story.

The story, in this instance, concerns immigration. The Times report, “Biden Opens A New Back Door on Immigration,” ably describes the operation of the Biden Administration’s parole policy for Cubans, Haitians, Nicaraguans, and Venezuelans. (We offered an explainer on this four months ago — a triumphant advertorial scoop if there ever was one.) Meanwhile, the Post’s editorial board, citing the Times story, summarized the same facts and added its own right-of-center opinion to the mix.

The Times and the Post and Statutes of Liberty are all working from the same facts. It is indeed true that these parole programs have succeeded in one of their stated goals: they have brought hundreds of thousands of people, legally, to the United States. We have met some of them in our office.

It is also true that these parole programs have failed with respect to one of their larger goals — curtailing the practice of asylum seekers requesting protection at the U.S. land border. (As the Times helpfully points out, “[o]verall border crossings from all nationalities […] remain at historic highs.”)

This raises the question: Has this policy succeeded, or has it failed? Our view is that it is too soon to tell. If this ‘back door’ gradually expands to become the new norm for all countries, then we can reasonably expect the number of people who make the dangerous land journey to diminish. That would be an unqualified good. It is important not to euphemize about this — about 450 die each year at the border, and many more die trying to reach it.

If, on the other hand, the ‘back door’ remains limited to a few nationalities, operating as a species of extraterritorial TPS, it seems unlikely that the status quo at the border will shift.

As a matter of law, the Biden Administration’s expanded use of parole is a kludge. Parole has traditionally been used sparingly, in individual cases. We are old enough to remember USCIS lecturing the immigration bar about how parole is not a substitute for the visa system. Well, the Biden Administration’s use of parole for nationals of Cuba, Haiti, Nicaragua, and Venezuela clearly is a substitute for the visa system — if 360,000 people enter the United States with proper documentation, based on a process which includes security checks and financial affidavits, that is a visa system in all but name.

Opponents of the new system have raised these concerns in federal court, arguing that the Biden Administration has leveraged the parole system to enact its preferred policies into law without Congressional authorization. The federal courts have, so far, been fairly deferential to Presidential assertions of power with respect to immigration, with some notable exceptions — the Trump Travel Ban and the Obama administration’s attempt to promulgate Deferred Action for Parents among them.

We’ll continue to track the litigation closely. Whether this policy succeeds or fails depends on whether this Administration expands it, on whether federal judges limit or abolish it, and on whether subsequent Administrations continue or reverse it.

As always, we’re happy to answer questions and comments!

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

Although the spring season has finally arrived and is beyond pleasant, H-1B lottery season was not so pleasant this year.

As a refresher, there are 85,000 H-1B visas available per year for workers in specialty occupations.  A couple of years ago, DHS implemented a new lottery system with a much lower price to apply. Now, instead of submitted packets of hundreds of pages of paper, the employer must only purchase a $10.00 ticket online for each employee they would like to receive an H-1B visa. Then, if that ticket is selected, the employer can move on to filing the entire petition. Sounds better, right?

Well, sort of. Previously, we estimated that a lottery ticket had a 1/3 chance of being selected in the lottery. But this year, the chances of success seemed to decrease significantly. For example, for fiscal year 2022, DHS received 308,613 tickets.  For fiscal year 2023, DHS received 483,927 registrations.  

These numbers clearly indicate that there is a high demand for skilled labor via the H-1B program, but the chances of a company’s ideal candidate being selected during the lottery have diminished over time. As an anecdote, we represent a number of smaller companies and submitted a total of eight tickets.  Not a single one was selected. Now, our corporate clients have to figure out other ways to hopefully keep their employees.

Not only is the lottery bad for employers who need to keep key employees, but it’s bad for the employees themselves. Some have no other option to stay in the United States, despite many receiving their education and working the first year or two of their careers in the United States. Not getting selected in the lottery means that the employee has to potentially pick up the life she has created and move out of the country.

As the years go on, we will see if this trend continues. If so, it will likely result in smaller employers having a difficult time bringing on employees via the H-1B program since large companies will have the need, and capacity, to submit hundreds of tickets every year.

As always, we’re happy to answer questions and comments!

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

The First Amendment, despite what you may have read on the internet, is not an absolute defense against prosecution.

If you say, out loud, to your friend: “Let’s rob a bank!” and then take steps in that direction, the sentence “Let’s rob a bank!” can be held against you in a court of law.

Mr. Helaman Hansen did not know that fact, and he suffered the consequences. Mr. Hansen — a very bad guy, in our view — told more than four hundred victims that there was a (totally fictitious) adult adoption program, whereby, under (nonexistent) US immigration laws, they could obtain proper immigration status, and then (surprise!) conned them out of their money in order to enroll his victims in that program.

Mr. Hansen was duly convicted by a jury and sentenced to twenty years in prison. But, this being law, the story doesn’t end there. Hansen was convicted of fifteen counts of mail and wire fraud, but he was also convicted on two counts of encouraging or inducing an alien to come to, or reside in the United States, despite knowledge of illegality. Hansen appealed his conviction under the ‘encouraging or inducing’ statute, arguing that the statute, as written, violates the First Amendment by criminalizing protected speech.

On Monday, the Supreme Court heard oral argument, and Mr. Hansen’s case did surprisingly well. But, because this is law, let’s look first at the statute. It reads, in relevant part:

“(A) Any person who-  […] (iv) encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law;  […] shall be punished[.]”

As applied to Mr. Hansen, a fraudster of remarkable inventiveness and ambition, the law seems reasonable. But the Supreme Court took Mr. Hansen’s overbreadth concern seriously. Justice Kagan asked whether lawyers, doctors, and teachers who provide services at the border were “encouraging or inducing” migrants to enter, in violation of the statute.

Justice Sotomayor asked whether a grandchild who tells her grandmother to stay in America might be guilty under the statute. Justice Kavanaugh suggested that organizations — like Catholic Charities Immigration Legal Services, for example — advise clients about the risk and benefits of remaining in the United States all the time, and surely — surely? — providing legal advice was not meant to be a prosecutable offense.

We don’t have a crystal ball, but we think that the statute is likely to be upheld. A narrow majority of the Court seemed to be satisfied that the government’s interest in discouraging criminal activity could  be achieved without chilling free speech in the legal, familial, or religious contexts in which prosecution has been rare.

We hope that you’ve enjoyed this explanation of United States v. Hansen. Be safe: don’t provide immigration advice to your friends and neighbors. Refer it to us.

As always, we’re happy to answer questions and comments!

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

In the spirit of the 2023 tax season, we would like to tell our loyal readers about the role taxes play in our immigration system, and give some very general (non-legal) advice on the topic.

For some people, tax season is exciting because that refund check will be arriving in the mail soon. For others, tax season is a dreadful moment of reckoning with Uncle Sam. If you or someone you know is going through some type of immigration process, the feelings may be mixed.

Taxes come into play in various contexts within our immigration system. Here are the most common scenarios:

• Proving that a person trying to help a family member immigrate makes a sufficient amount of money, such that the immigrant will not become reliant on the government for survival.
• Proving that an applicant for naturalization is of good moral character because she is up-to-date with her taxes and, if she owes taxes, she is current on a payment plan with the relevant tax authority.
• Proving that a person has been in the United States for a certain period of time.

To begin, let’s review the first scenario. When a U.S. citizen or lawful permanent resident has filed a petition on behalf of a relative, eventually the immigration authorities will request something called an Affidavit of Support.

The Affidavit of Support is a government form, Form I-864. The I-864 is a three-way contract between the petitioner, the immigrant, and the government. The petitioner must show their income and/or assets are sufficient to support the immigrant such that the immigrant will not become reliant on government benefits. In return, the government will give the immigrant a green card.

To determine the amount the petitioner must make, we look to the I-864P, which is a chart that shows the minimum threshold of income based on household size and the Federal Poverty Guidelines. The household size includes the petitioner, her spouse, any dependent children, anyone else they have sponsored for a green card who is not a U.S. citizen, plus the immigrant currently seeking the green card.

Apart from listing the petitioner’s actual annual income, the Affidavit of Support requires that the petitioner disclose her total income as listed on her federal tax return for the last three years, if she has filed. A copy of the most recent filing, along with all W-2s or 1099s, must also accompany the Affidavit of Support as proof of income. Some petitioners also submit recent paystubs if they have recently received a salary bump or proof of significant assets if their actual income from work is on the low side.

If the petitioner cannot satisfy the requirements, then the petitioner can use a joint sponsor to help. The joint sponsor has to meet the same requirements as the petitioner based on the joint sponsor’s household size. The joint sponsor must also submit his most recent tax return.

Scenario number two is also common. When a person with a green card applies to become a U.S. citizen, the form, which is called the N-400, asks if the applicant has always filed his taxes since receiving his green card. The government also asks whether you owe the federal, state, or local government any taxes.

Why do the immigration authorities care so much? It’s because Congress made it a requirement that an applicant show he is a person of good moral character if he wants to become a U.S. citizen. That determination is influenced by following rules, including filing taxes every year, when required, and paying any taxes owed. USCIS, the agency that handles citizenship cases, is not totally unreasonable; those with large tax debt can still satisfy the good moral character requirement if they can show they are on a payment plan with the relevant tax authority and have been making their payments as required under the agreement.

Scenario three is a little less common but still quite important. In various types of immigration cases, proving that the applicant has been residing in the United States for a certain period of time is essential. One of the best ways to do this is to provide copies of federal tax returns that were filed during the relevant period of time. That way, the applicant shows that she was in fact in the United States and working. A lot of these cases also require a showing of good moral character, so filing and paying taxes helps out with that requirement, too!

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This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

This week, we’re taking a break from our normal coverage of immigration law in the United States not because there aren’t any interesting developments (there are, in fact, major developments) but because we want to help another small business open up — and help ourselves at the same time, by subletting out a spare floor.

Lawyers, accountants, and other professionals: This is the space for you!

First, the facts:

• 306 N. Washington Street, Falls Church VA, convenient to downtown Falls Church. Two excellent coffee shops within blocks.
• $1500/mo, sublease, term negotiable. (That’s $14/sq. ft./ year!)
• 1,287 sq. ft.
• All utilities paid by Master Tenant (that’s us!)
• Private entrance. Private entrance!
• Fresh coat of paint throughout
• Minisplit HVAC
• Two offices
• Large parking lot with lots of spaces for you and your clients or customers
• Excellent landlord

Now, the goofy photos and floor layout.

This is your private entrance, with a midtier ARLnow commenter for scale.

This is the office you walk into, with an economy-class Mitt Romney lookalike for scale. There’s plenty of room in here for at least two workstations. Also, a private bathroom and kitchenette.

Walk down the hallway, and you’re in the second spacious, freshly painted office. Did you know that if you dab in proper lighting, your shadow looks like Nosferatu operating a backhoe? TIL!

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