IMMIGRATION

REPORTING A CHANGE OF ADDRESS

	Gail S. Seeram

By GAIL S. SEERAM

All non-U.S. citizens (aliens) who have filed an application or petition for a benefit under the Immigration and Nationality Act and expect notification of a decision on that application are required to keep U.S. Citizenship and Immigration Services (USCIS) informed of their current address. In addition, the USCIS may need to contact you to provide other issued documents or return original copies of evidence you submitted. It also is mandatory for any alien who has been designated as a �special registrant� to inform the USCIS whenever he or she has a change of address, employment or school. The special registrant rule is effective as of Sept. 11, 2002. For information about special registrant go to the U.S. Immigration and Customs Enforcement Web site (www.ice.gov).

In the past, INS required every alien in the United States to report his or her address annually, in January. This requirement was eliminated in 1980 and annual reporting is no longer required. However, if you are not a U.S. citizen, the law still requires that you report any change of address change within 10 days of the change.

How Do I Report My Change of Address?

As announced on Jan. 12, 2007, USCIS launched a new Web-based service allowing USCIS customers to submit change of address information online. If you are not a U.S. citizen, changing your address for legal purposes does not change your address on any application or petition pending with USCIS and changing your address on a pending application or petition does not meet the legal requirements of informing USCIS of your change of address.

For most cases, you can change your address on a pending petition and inform USCIS of your change of address by accessing the new Web-based service provided by the USCIS website

(http://www.uscis.gov/AR-11). If you choose to use this online tool, you can complete an electronic Form AR-11 and notify USCIS to update your address on most pending cases.

If you choose not to complete an electronic Form AR-11, you will be required to obtain a paper Form AR-11 and mail it to the address shown on the form. This will delay the process of notifying USCIS significantly. Not filing an electronic AR-11 and choosing to mail in a paper AR-11 will not update your address on any applications or petitions pending with USCIS.

Regardless of whether or not you are a U.S. citizen, if you choose not to use the electronic change of address notification, you will need to call customer service at 1-800-375-5283 to request that the address on your pending application/petition be changed.

If you are not a U.S. citizen and you have a case pending with USCIS, you will need to do both � call customer service and complete the paper AR-11. Completing an AR-11 does not update your address on any pending case. Also, notifying customer service does not meet the legal requirement of completing an AR-11. If you mail a paper Form AR-11, it is recommended to use certified, registered or return receipt mail. This is not currently a requirement of USCIS. However, it is advisable to send the AR-11 by a method that will give you documentation that you did mail the form to USCIS, in case there should ever be a question.

Gail S. Seeram, an immigration attorney, handles cases involving family petitions, business/investors visas, citizenship, deportation, asylum, work authorization, and extension of status. Call her office toll free at 1-877-GAIL-LAW (1-877-424-5529), send an email at [email protected] or visit her Web site at www.go2lawyer.com.

	Dilip Patel

U.S. SUPREME COURT ISSUES FAVORABLE DECISION IN DRUG POSSESSION
By GERALD P SEIPP AND DILIP PATEL, Attorneys-At-Law

On Dec. 5, 2006, the U. S. Supreme Court issued an important immigration law decision, Lopez v. Gonzales, 2006 WL 3487031 [also available free of charge on findlaw.com], which will grant new opportunities for many aliens to defend deportation from the United States.

Jose Lopez, a native of Mexico, obtained his legal residency (�Green Card�) in 1990. He was arrested in South Dakota in 1997 and pleaded guilty to cocaine possession. He served 15 months of a five-year prison sentence. While his offense was considered a felony under South Dakota law, a first offense for possessing cocaine is only a misdemeanor under federal law. An immigration judge ordered Lopez�s deportation and the Board of Immigration Appeals, a Department of Justice agency, and the Eighth Circuit Court of Appeals upheld the removal order.

The issue in the Lopez case was complex and had divided the circuit courts in trying to interpret how the federal immigration and drug laws apply in the analysis of the various state criminal drug laws. Stating the issue in simple terms: �Can a drug possession conviction, which is a felony under state law, be an �aggravated felony� under the U.S. immigration laws, even if the conduct resulting in the conviction would only be a misdemeanor if the case had been prosecuted in the federal court?� Eight of the nine Supreme Court Justices said, �No.�

This issue is particularly important for aliens convicted of felony drug possession crimes in the state of Florida, because the Eleventh Circuit Court of Appeals, which has jurisdiction for cases arising in the immigration courts in Florida, determined, in the case of U.S. v. Simon, 168 F.3d 1271 (11th Cir. 1999), that such a crime is considered an aggravated felony even if it would be a misdemeanor under the federal drug laws. If the same alien became subject to an immigration court hearing in California, the same Florida conviction would not have been considered an aggravated felony, because the Ninth Circuit Court of Appeals, had ruled to the contrary. Savvy immigration lawyers were known to advise their Floridian clients, who had these crimes, to move to a state within the Ninth Circuit to either file their citizenship applications, if eligible, or at least to be in a safer place in the event they were to become subject to removal proceedings.

It is important to understand that the term �alien� includes lawful permanent residents of the U.S., since �alien� is defined as anyone who is not a national or citizen of the U.S. We sometimes are confronted with situations where the client lawfully immigrated to the U.S. with his or her family as an infant, but is nevertheless without recourse to assert a defense to deportation as a result of a criminal escapade, because the family never got around to pursuing applications for citizenship.

In addition, under U.S. Immigration law, �conviction� is broadly defined to include any disposition that involves a plea or finding of guilt, or a no contest plea, even if adjudication of guilt is withheld, if any punishment whatsoever (for example, fine or probation) is imposed. Indeed, many aliens walk out of the criminal court with confidence that their minor criminal disposition will not be a problem for their immigration status, only to later discover that they are subject to mandatory detention and deprived of any realistic defense to avert removal from the U.S.

For an alien convicted of one of or more aggravated felonies, which are included in a long list of crimes � some of which are very serious and some of which may be considered as relatively innocuous � the consequences are very severe. In many situations the alien will be subject to mandatory detention while his or her removal case is pending. Such aliens will not be eligible to apply for asylum, or cancellation of removal, or even voluntary departure. Moreover, the so-called �aggravated felons� are not allowed to petition the federal courts for many types of claims. An alien convicted of an aggravated felony after Nov. 30, 1990 can never show the required good moral character to naturalize as a U.S. citizenship, even if she or he had served in the U.S. military.

For an alien with a pre-April 24, 1996 aggravated felony conviction, relief from deportation is still possible, thanks to the U.S. Supreme Court�s 2001 decision in INS v. St. Cyr, 533 U.S. 289 (2001), which held that an alien cannot be deprived of relief under repealed section 212(c) of the Immigration and Nationality Act, if the conviction involved a guilty plea. However, now that it has been 10 years since the 1996 legislation was signed into law, we see few cases involving pre-1996 convictions.

There are many permanent resident aliens who find themselves in the same type of predicament as faced by Lopez. It has been reported that, in 2005, about 77,000 immigrants were deported from the U.S. because of criminal records, and that about 7,000 of these had arrests for drug possession. In light of the Supreme Court�s ruling, many more resident aliens will now be permitted to apply for relief from removal, including what is called �cancellation of removal.� This relief is a discretionary remedy and involves the immigration judge�s balancing of the relevant negative and positive factors presented by the alien�s situation. To be eligible for cancellation the alien must have at least five years of lawful permanent residence (�Green Card Status�) in the U.S. and a minimum of seven years presence following a lawful admission.

For long term permanent residents with strong family ties, steady employment, evidence of filing of tax returns and demonstrated rehabilitation � assuming that criminal behavior was not particularly heinous � the chances are quite favorable that cancellation will be granted. The law provides that this remedy can only be granted a single time. One lesson we instill in all our clients is to seriously consider filing for U.S. citizenship at the earliest opportunity, because, among the other benefits, a U.S. citizen cannot be deported. One final important caution is that if you have ever been arrested or charged with a crime, make sure that your situation is reviewed by an experienced immigration attorney for all its immigration consequences before you travel abroad or make any immigration-related applications. Dilip Patel is a Board Certified Immigration Attorney. He is the founder of the Dilip Patel, P.A. law firm (www.dplawfirm.com) and has practiced business and immigration law in the Tampa Bay area since 1990. Gerald P. Seipp recently joined the Dilip Patel, P.A. law firm. Patel and Seipp can be reached at (727) 712 0066 or by email at [email protected]

	Nikhil Joshi

LABOR LAW

IMPLICATIONS OF MERGERS AND ACQUISITIONS � PART III
By NIKHIL N. JOSHI, J.D., M.B.A.

This is the last of a three-part series of articles on the labor law-related challenges that entrepreneurs can face when they grow their businesses in part due to acquisitions of other properties that present an opportunity to enter a new market, to obtain greater economies of scale or to gain other value-added benefits.

As stated in prior articles, with the growth of mergers and acquisitions of such properties, it is incumbent upon those individuals considering acquisition to conduct a thorough due diligence, beyond mere financial review, of the properties under evaluation. We have already discussed the impact of the general employment laws and the labor (union-related) laws. Today, we will consider the three remaining areas, including the �employee benefits laws,� the immigration laws and the laws governing mass layoffs.

EMPLOYEE BENEFITS LAWS

As part of its due diligence, the purchaser must seriously evaluate any retirement and/or benefit plans put into effect by the seller. The laws governing employee retirement and welfare benefits are extremely complex. Their application to the benefits implemented at the seller�s workplace, and thus any legal obligations that may arise, must be examined by experienced labor counsel, auditors and tax counsel to ensure compliance.

This examination is even more critical in the event the seller�s benefit plans are part of a multi-employer pension and benefits plan administered by a union. In the latter situation, the seller has a fiduciary responsibility to ensure the pension plan is not under-funded. If the plan is under-funded, the seller and, in some cases, the buyer may be assessed liability and steep financial penalties for the failure to adequately fund the plan under the federal labor and benefits laws.

IMMIGRATION LAWS

Under the Immigration and Reform Control Act of 1996, the purchaser is responsible for ensuring that all immigration-related documentation applicable to the seller�s employees complies with the law. To wit, as the successor employer, the purchaser must review the I-9 Forms for all employees who will continue working for the purchaser to ensure that they remain eligible to work in the United States. It is recommended that the employees be asked to freshly complete I-9 forms when the new owners take over.

Moreover, certain positions in transient businesses such as hotel or resort operations may be staffed by workers of foreign origin who hold special work visas. These visas may be particular to the employer/business and may limit the worker to the specific position held. Immigration compliance issues may arise if there are any changes to the position or any changes to the employing entity. As a result, if the purchaser would like to continue the relationship with a worker on a visa in compliance with the immigration laws, it may have to evaluate the options available to amend the employment-based visa petition.

LAYOFFS

In some cases, if the purchaser is not acquiring the rights to retain the workforce of the seller, which will result in the termination of the seller�s employees, then the seller may have to comply with obligations under the federal Worker Adjustment and Retraining Notification Act (WARN) and state and/or local laws dealing with mass layoffs and closings. Employers who are covered under these laws have obligations to provide advance notice to employees who will be affected by the mass layoff or closing and, in some cases, to the municipality and state where the business resides.

Failure to do so may result in penalties being assessed against the employer in addition to the monetary remedies available to the employees who were not provided such notice. To determine whether your business is subject to these laws, please consult with your labor counsel as the threshold for coverage and compliance varies depending on the circumstances of the closure or layoff.

The information presented in this article is general in nature. Nothing in this article is intended to provide specific legal advice. Please contact your labor counsel or other counsel if you have any particular issues that require attention.

Nikhil N. Joshi, a labor counsel with concentration in Human Resources Management at Kunkel Miller & Hament, P.A. in Sarasota, can be reached at 800-828-7133 or e-mail [email protected]