Natty Shafer Law

Utah lawyer for criminal and immigration cases


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U Visas

The U Visa (officially “U nonimmigrant status”) is a humanitarian program intended for crime victims. It allows victims to work and stay legally in the United State for four years, with the possibility of renewal. After three years, a U Visa holder may apply for a permanent resident card (green card) if they have lived continuously in the U.S. for that period, and they cooperated with law enforcement with the the prosecution of their case or any other investigations. Unlike some other visa applications, there is no filing fee for the U Visa, and undocumented immigrants are eligible to apply.

Not all crime victims are eligible, but many are, depending on the severity of the crime and where it occurred. The law requires that the victim suffered substantial mental or physical abuse as a result of the crime, and it has to have violated U.S. law, which generally requires that it occurred in the U.S. Victims of domestic abuse are one of the more frequent applicants, but many other crimes qualify too, such as assault, rape, or involuntary servitude.

Law limits the number of U Visas to 10,000 each fiscal year, which ends the last day of September. That limit has not yet been reached this year, but if last year is any indication, it will be reached a few weeks before the fiscal year ends.

Family members who accompany the U Visa applicant may be eligible for a U Derivative Visa. The U Visa “principal” must petition on behalf of qualifying family members. If a U Visa applicant is under the age of 21, the applicant’s spouse, children, parents and unmarried brothers and sisters under the age of 18 may apply. If the U Visa applicant is over the age of 21, only the applicant’s spouse and children may apply.

If you think you or a family member qualify for a U Visa, see an immigration lawyer to help you with the application. In Utah, many undocumented immigrants are afraid to go to the police when they have been victimized, but going to the police is necessary to getting a U Visa and legally remaining in the United States.


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Arizona Immigration Law Goes Down; Utah Next?

We have a clearer picture of the future of Utah’s immigration law today, and there is both good news and bad news for immigrants in Utah. The United States Supreme Court handed down a ruling on Arizona’s immigration law and found three of the four parts to be unconstitutional and at odds with laws enacted by Congress. Utah’s immigration law is currently on hold; in February U.S. District Judge Clark Waddoups put off issuing a decision on Utah’s law until he received “additional guidance” from the Supreme Court. Now that the Supreme Court has spoken, the Utah case will start moving again.

Parts of the Utah law are likely to be found unconstitutional. According to Utah Attorney General Mark Shurtleff, the ruling prohibits police from conducting a warrantless arrest of immigrants. This is a minor victory for immigrants in Utah since it means that Utah cannot arrest someone for their immigration status alone.

The part of the Arizona law which the Court did not strike down requires police officers to verify the immigration status of everyone they detain or arrest. The Court left open the possibility that it would later strike down the law, but declined to do so because it is not yet clear that Arizona will enforce the law in an unconstitutional manner. According to the Court, communication between local law enforcement and Immigration and Customs Enforcement (ICE) is encouraged by Congress, and therefore Arizona’s law was not preempted by federal law. The Court left open the possibility that the law could be overturned on other grounds.

Utah has a similar provision requiring police officers to check the immigration status of people they detain or arrest. Unless Utah implements the law in an unconstitutional manner—such as a racially motivated way—that part of the law is likely to stand. It remains to be seen how long a police officer can detain someone to verify immigration status.


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Rules Still Hazy for Deportation Relief

Over the weekend, we learned little about how the Obama administration is going to implement its new policy of deportation relief. The procedures for application are unknown as well as how someone proves that they are among the eligible immigrants. The Department of Homeland Security directive from June 15 applies to undocumented immigrants under 30 who came to the United States before they turned 16, but the federal government has prosecutorial discretion over who it will grant a Deferred Action.

The details of the work permits are also a little hazy. The administration said that they will be valid for two years and eligible for renewal, but the application procedures have not been laid out.

In the meantime, beware of con artists. Specifically, do not hire a “notario público” (notary public) to do any legal work for you. Unlike most Latin American countries, notarios públicos are not attorneys and cannot practice law. They have no ability to get you a Deferred Action or a work permit. In due time, we will know the proper procedures for the new policy.


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Obama’s ‘Stopgap Measure’ for Immigration

Immigrants who were brought to the United States as children received a bit of good news today. The Obama administration announced, effective immediately, it will block deportations of certain individuals. To be eligible, an immigrant must be no more than 30 years old, have arrived in the country before they turned 16, and have lived in the United States for five years. They must also have no criminal record and have a high school diploma, or be serving in the military or have been honorably discharged.

Eligible immigrants can request a “deferred action” that eliminates the threat of deportation for two years. However, the plan does not create a pathway to U.S. citizenship. President Obama called the policy a “stopgap measure” and “the right thing to do.”

The new policy has obvious shortcomings for undocumented immigrants, but if you or one of your family members are among the eligible people, the news has to ease your fears a bit. For one, it may spur Congress to implement a permanent pathway to citizenship by passing the DREAM Act or similar legislation. It also will give you a two year reprieve from deportation, and give you a work permit, which should make it a little easier to work legally.


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The Utah Driving Privilege Card

There’s a lot of misinformation about the Utah Driving Privilege Card (DPC), which allows undocumented immigrants to legally drive in Utah. The program has been in place since 2005 and was designed to encourage undocumented immigrants an avenue to drive legally and obtain auto insurance. Unlike a regular driver’s license, the DPC must be renewed each year and also is not supposed to be used as legal identification.

There was some concern when the program was instituted that no one would obtain the privilege card because it’s more or less a tacit admission of undocumented immigrant status. However, it has not worked out that way in practice. The Utah Driver License Division only notifies law enforcement or Immigration and Customs Enforcement (ICE) if the applicant has an outstanding warrant for arrest or has been accused of a felony. As a consequence, Utah issues about 41,000 driver privilege cards per year.

Currently, here is what is required every time a person applies for a DPC: 1) A birth certificate or passport, along with a certified translation if the document is not in English; 2) Another form of identification such as a previous DPC, a Matricular Consular Card from the Mexican Consulate in Utah, another state’s driver’s license, or even an employee ID; 3) Either a valid social security number or an Individual Tax Identification Number from the IRS.

There are also some items you will need to get your first DPC: 1) Proof of Utah residency using certain mail or other documents (this is also necessary if you are changing your address from a previous DPC); 2) A fingerprint card placed in a sealed envelope from an authorized law enforcement agency; and 3) Proof of a driver’s education class, with certified translation into English, if necessary.

The fingerprint card tends to worry immigrants the most. In practice it has not led to a noticeable uptick in deportations. As mentioned previously, there are specific circumstances when the Driver’s License Division notifies law enforcement, but otherwise the fingerprint card is not used.


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A Story Too Good to Be True

Con artists find the most vulnerable people in society and take advantage of them. The vulnerable need help and they need hope. Immigrants, especially undocumented immigrants, are among the most vulnerable people in society. Most undocumented immigrants are unwilling to call the police and report crimes for fear of being deported.

A potential client told me of one such scam recently. She paid another woman $3,000 to fix her daughter’s immigration status. The con artist claimed to work for immigration (USCIS), and said she would be able to get her daughter a green card. They communicated regularly for several weeks, and during that time, my client recommend several other people to the con artist. Altogether, she thinks about 30 people in her Utah community paid, and they probably all paid $3,000. Allegedly, the green card was going to come in the mail several weeks ago. Now my client can’t get the con artist to answer the phone.

As I heard the story, I recognized immediately that she was the victim of a con artist, even as she held out hope that this was all legitimate. A real USCIS employee could not accept cash payments to fix someone’s status. Also, there are specific guidelines USCIS must follow. They can’t just wave a wand and fix someone’s immigration status.

While immigration lawyers often ask for money up-front, they are also going to have a permanent office where you can reach them. Also, immigration lawyers know that USCIS rarely acts quickly and would never promise you a green card “next week.” It breaks my heart to see anyone taken advantage of in this way. If you are at all in doubt, ask to see your lawyer’s bar card. Every state bar association will let you know if a lawyer is in good standing. No legitimate lawyer is going to be offended if you ask for their credentials.


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Answer All of Your Lawyer’s Questions Thoroughly

Regardless of the reason you hire a lawyer, you want to answer his or her questions thoroughly. Whether you are hiring a divorce attorney, someone to take care of your will and trust, or a Utah criminal and immigration lawyer like me, every question has a purpose. You want your lawyer to do the best job possible because you’re paying good money for legal services.

Many of the questions your lawyer asks may seem simple or unnecessary. One of the most common complaints people have about their lawyer is that they don’t communicate enough about the status of the case. And yet clients are often reluctant to give out personal information like cell phone numbers or email addresses. From a lawyer’s perspective, it’s frustrating to call a house during business hours, leave a message with a child, and then never hear back from you. Lawyers tend to work long hours, but we have no idea when you’re going to be home so make sure your lawyer knows the best way and best time to get a hold of you.

There’s also the subject of embarrassing or damaging information. No matter how unflattering, it’s important for your lawyer to know everything about your case. Answer questions as honestly as you can. Your lawyer is sworn to keep your information confidential, but they can only prepare for stuff they know about.

Alternatively, you could have a great piece of information that would really help your case if your lawyer only knew about it. In my experience working as an attorney in Utah, clients frequently have no idea which facts will help or hurt their case. There have been times when I’ve talked to a client several times before a key piece of information comes out because the client mistakenly believes it will hurt the case. Since most lawyers charge by the hour, you are wasting money if you don’t give the information up front.


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Undocumented Immigrants Can Be Denied Firearms

Yesterday, the Court of Appeals for the Tenth Circuit upheld a federal law that makes it illegal for undocumented immigrants to own firearms. The Tenth Circuit includes Utah, but the case, United States v. Huitron-Guizar, arose out of Wyoming when Emmanuel Huitron-Guizar was arrested for owning three firearms. To challenge the constitutionality of the congressional law, Mr. Huitron-Guizar relied on language in District of Columbia v. Heller, which seemed to suggest that owning a firearm is an “individual right.”

The Tenth Circuit didn’t say whether a permanent resident or other immigrants can be denied firearms. The Supreme Court generally allows Congress to distinguish between citizens and non-citizens or to distinguish between undocumented aliens and legal aliens. As the Tenth Circuit noted, Congress has the power under the Constitution to determine rules for citizenship and to govern immigrants who seek citizenship.

What most interests me about this case, however, is that Mr. Huitron-Guizar has lived in the United States since he was three years old. He is now 24 years old, and he has lived in Wyoming for the greater part of 21 years. Now he is waiting deportation to Mexico, where he likely does not remember living. The particular firearms he owned would not have been illegal for him to possess if he had been a citizen.


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Getting Citizenship or a Green Card through the Armed Services

Obtaining United States citizenship is easier for someone who has served in the military, regardless of whether or not the U.S. was legally in any “hostilities.” When the U.S. is in hostilities, anyone serving can petition for immediate U.S. citizenship, and as an added bonus, the military pays for the filing fees with USCIS. Currently, the U.S. is engaged in legally defined hostilities, and has been since September 11, 2001. That means that anyone who honorably serves in the military right now, even for one day, is eligible. A person can go straight from undocumented immigrant status to citizenship fairly quickly. However, the armed services are not supposed to allow undocumented immigrants to enlist, but immigrants with green cards are allowed to enlist.

For anyone who served in the armed services more than 10 years ago, it is still possible to get citizenship, even if the U.S. was not in hostilities. For service during peacetime, an immigrant needs to have served at least one year and have been honorably discharged. Also, the applicant must have lived in the U.S. for at least 30 months out of the previous five years.

It is possible to get a green card through military service, but it’s fairly rare. To qualify, an applicant must enlist in the U.S. armed services outside the U.S, and their home country’s armed services must recommend them for this immigrant status or they must be a citizen of a country that has a treaty arrangement with the U.S. Only the Philippines, Micronesia, and the Marshall Islands currently have a treaty with the U.S. allowing their citizens this green card status.


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Without a Sponsor, It Can Be Hard to Get a Green Card

Immigrating to the United States is a lot easier if you have a family member or employer eligible to sponsor you. The U.S. Congress has made a policy choice that makes it straightforward for employers and U.S. relatives to sponsor immigrants seeking green cards (or permanent residency), but difficult for everyone else. Most immigrants either need a sponsor or they need to fit into one of the narrowly defined exceptions. This includes immigrants who came to the U.S. as young children and have lived here for as long as they can remember. If no one in their family is a U.S. citizen, they remain in the precarious position of every other undocumented immigrant, regardless of the U.S. being the only home they remember and speaking English as a first language.

There are exceptions, of course. Citizens of specific countries get preferential treatment. For example, Cuban nationals who manage to set foot on U.S. land have a relatively easy path toward permanent residency. (If, however, they are stopped while still at sea, they are sent home or to another country.)

U.S. Citizenship and Immigration Services (USCIS) has a tiered system for family sponsorship. The first tier is for immediate relatives of U.S. citizens, and there is no limit or quota on the number of green cards that can be issued each year. USCIS defines an immediate relative as a spouse, an unmarried child under the age of 21, or the parent of a child over the age of 21. The wait for immediate relatives is only a few months.

Other relatives are subject to quotas, if they are eligible for sponsorship at all. Relatives such as grandparents, cousins, aunts, and uncles are not eligible for sponsorship. Because of the quotas, the wait for a green card is several years for the children of U.S. citizens that are already over the age of 21, and the wait is currently well over a decade for the brothers or sisters of U.S. citizens. That’s one of the reasons that marrying a U.S. citizen is a common method for acquiring a green card.

You can also be sponsored through an employer or through a job, or if you have enough money to invest in the United States, you can sponsor yourself. Entrepreneurs who invest at least $1 million in the United States are eligible for a green card. Obviously, not many immigrants qualify for that category. Generally, employer based sponsorships go to immigrants with advanced degrees or who have “extraordinary ability in the sciences, arts, education, business, or athletics.” The category is vague enough that many skills qualify, but it does require some specialized ability. Although there are quotas for employment based sponsors, the wait times tend to be significantly lower than many of the relative-based ones. So if you have an employer who is willing to sponsor you, that may be an attractive option.

As I mentioned before, there are a few narrowly defined exceptions that exist for humanitarian or policy reasons, such as for refugees seeking asylum. In future posts I will delve into those exceptions, but the largest category of green cards are given to immigrants who have someone to sponsor them.