Immigration Attorney

Difference Between Seeking Refugee Status and Asylum

Refugees and asylum-seekers (also called asylees) share many similarities. Both groups are typically escaping prosecution in their home countries and trying to access the safety living within the United States can provide.

In these cases, the definition of “Prosecution” is related to applicant’s race, religion, nationality, membership in a social group, or political opinion comes in the form of threats, harassment, violence, torture, unfair imprisonment, or denial of basic human rights.

The difference between refugees and asylees is less understood by the general public. Most differences are procedural. The Miami immigration attorneys at Pimentel & Castillo have helped many clients successfully apply for asylum and refugee status. Below, they explain some key differences between seeking refugee and asylee status.

Application Procedure for Refugee Status

Section 101(a)(42)(A) of the Immigration and Nationality Act (INA) offers a definition for the term “refugee.”

(A) any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion . . .

A person who fits this definition can apply for refugee status, but they must apply from outside the United States and then go through the following steps.

  1. Receive a referral to the U.S. Refugee Admissions Program (USRAP).
    Highest priority is given to people referred by the United Nations High Commissioner for Refugees (UNHCR), a U.S. embassy, or a designated NGO.
  2. If selected by USRAP, provide proof of persecution and a detailed affidavit explaining the persecution that occurred and reasons why the applicant fears returning to their home country. *Include both in application.
  3. After submitting application, meet with an overseas asylum officer who will make a decision on your case.
Application Procedure for Asylum

People seeking asylum must first fit into the INA definition of “refugee” provided above, then apply within the United States or at a U.S. border. The procedure is slightly different, depending on where the asylee starts the application process.

At a U.S. Border or Entry Point
  1. Explain fears of returning to home country to U.S. officials, ask to apply for asylum.
  2. “Credible Fear” hearing held with a United States Citizenship and Immigration Services (USCIS) that will decide whether the applicant should have their case heard by a judge.
  3. Immigration judge hears case in a hearing in immigration court and decides whether the applicant qualifies for asylum.
Within the U.S.

If the asylum-seeker was able to enter the country legally with a valid visa or entry document, they will have more time to go through the application procedure.

  1. Fill out USCIS Form I-589 and mail together with detailed affidavit and proof of persecution to USCIS.
  2. Attend an interview at a USCIS asylum office where applicant’s case can be approved or denied.
  3. If denied by the USCIS, case will be referred to immigration court where an immigration judge will either approve or deny claim.

For those wishing to escape harsh persecution, applying for refugee status or asylum in the United States may be their only choice. At such stressful times, it is beneficial to have Miami immigration attorneys as guides for the complex procedures.

At Pimentel & Castillo, our Miami immigration attorneys are skilled at assisting clients prepare required applications, petitions, affidavits, and USCIS forms as well as prep them for USCIS interviews and immigration court hearings. Call us today for free consultation.

Is Teen Sexting a Crime in Florida?

Is Teen Sexting a Crime in Florida?

The answer is yes, sexting between two minors is considered a crime in Florida. In 2011, the Florida legislature passed a law that specifically pertained to teen sexting. Children and teenagers under the age of 18 should have some understanding of this law and the penalties for violating it.

Prior to this law, minors caught sexting would be charged according to more severe Florida child pornography laws. While this is no longer the case, the consequences for minors who violate the current law can still be harsh with long-lasting effects for the offender. If a you are a parent or guardian of a minor cited for a sexting violation, seeking the legal counsel of an experienced Miami juvenile defense attorney is recommended.

What is Sexting and Teen Sexting?

Sexting is defined as people sharing nude or sexually explicit messages, typically photos or videos, through the use of electronic communication channels and devices such cell phones, the Internet, social media, and so on. Teen sexting occurs when the above behavior happens between two minors and the messages in question depict minors.

Under Florida sexting law, sexting between two consenting adults is not a criminal activity. However, teen sexting is considered a criminal offense. Minors commit the crime of sexting when they knowingly distribute, receive, possess, or create a nude or sexually explicit image or video of another minor.

If a minor receives an image or video depicting a minor in situations of nudity or sexual conduct, but they (i) did not solicit the image, (ii) did not distribute the image to another party, and (iii) took steps to report the image to a parent, guardian, school official, or law enforcement official, they are unlikely to be charged with violating the Florida sexting law.

What are the Penalties of Teen Sexting?

The consequences minors may face because of sexting vary in severity and depend on the specific circumstances of each case. Generally, punishments get harsher the more offenses a minor is charged with. Any images or videos transmitted or received within a 24 hour period are counted as one offense.

      • First Offense — Minor charged with non-criminal violation, could face a $60 fine, 8 hours of community service, and/or mandatory classes on the dangers of sexting.
      • Second Offense — Minor charged with first degree misdemeanor, could be faced with steeper fines, probation, and/or placement in a juvenile detention center.
      • Third Offense — Minor charged with third degree felony, could face a prison sentence of up to 15 years and may be required to register as a sex offender.

To learn more about the Florida sexting law and Florida child pornography laws as they pertain to juvenile defendants, speak with a seasoned Miami juvenile defense attorney. The attorneys at Pimentel & Castillo are experienced at defending juveniles from criminal charges, including sexting violations. If you are a parent or guardian of a minor that is facing teen sexting charges, call us today for a free consultation.

Consequences of Overstaying a Student Visa

Consequences of Overstaying a Student Visa

Overstaying one’s temporary U.S. visa is something immigration officials take very seriously. According to U.S. immigration law, a person who overstays their visa is residing in the country illegally and treated similarly to someone who entered the country illegally – it is a serious matter that should be avoided. However, for some student visa holders, the expiration of their allowed stay may not be as obvious. If you have already overstayed your visa, consult with a Miami immigration attorney to learn more about your options. Below, we will review the potential consequences of overstaying a student visa.

Authorized Period of Stay

Many are unaware that the expiration date on a visa is not what determines a nonimmigrant’s authorized period of stay, the date shown on the card is actually the last day that the card can be used to enter the U.S. The expiration for the stay is specified on the Form I-94 Arrival/Departure Record card or downloadable online document, given by Customs and Border Protection (CBP) officials to those who enter the U.S. If the visa holder stays beyond that date, they are guilty of overstaying.

However, nonimmigrants who enter on an F-1 or J-1 student visa are not given a specific date on their I-94 cards and online records. Instead, the I-94 will say, “D/S” which stands for Duration of Stay. Taking into account that the duration of many academic programs is not fixed, D/S allows for F-1 and J-1 students to stay until their studies program is complete and the grace period ends, assuming that the visa holder is fully compliant with the rules of the visa. If students stay past the allowed period and make no effort to apply for a Change of Status within a reasonable time, they are likely “Out-of-Status,” and therefore overstaying.

Consequences of Overstaying

The following are possible consequences of overstaying a student visa.

    • Existing visa is automatically voided and can no longer be used to enter the U.S.
    • Restricted from applying for an Extension of Stay or Change of Status
    • Cannot obtain another visa at any U.S. consulate outside of country of nationality
    • Barred from re-entering the U.S. for three to ten years if “unlawful presence” accrued

Unlawful Presence and Time Bars

One of the harshest consequences of overstaying a student visa is a time bar. Those guilty of overstaying are only subject to time bars if they are deemed inadmissible for accruing “unlawful presence,” meaning they overstayed for more than 180 days. For M-1 students, it is easy to determine whether unlawful presence has occurred because the accrual to time starts after the specific “Out-of-Status” date in their I-94.

On the other hand, F-1 and J-1 students can only be guilty of unlawful presence if U.S. Citizenship and Immigration Services (USCIS) or a related government authority formally determines they were residing in the country unlawfully. Only after that official determination is made does the counting off of days start for F-1 and J-1 students. Thus, F-1 and J-1 student visa holders are rarely subject to any of the two types of time bars.

        1. Three-Year Time Bar — Unlawful presence of more than 180 days but less than one year.
        2. Ten-Year Time Bar — Unlawful presence of more than one year.

The best course of action for nonimmigrants should be to avoid overstaying a student visa. However, if you or a loved one has overstayed a temporary U.S. visa, consult with a knowledgeable Miami immigration attorney.

Out team of U.S. immigration law professionals is experienced at defending our clients from deportation as well as having grounds of inadmissibility waived. Call Pimentel & Castillo today for a free consultation.

An Overview of One’s Rights at Customs

An Overview of One’s Rights at Customs

Travel restrictions are not new in the United States, but the latest ones have stirred some  controversy. Consequently, many passing through customs are unsure of their rights. Many would be surprised to learn that even American citizens returning from countries where the U.S. has introduced constraints may be subject to intensified searches. In light of this, being well informed about one’s rights and even consulting with a Miami immigration attorney prior to traveling is of the utmost importance.

If the individual is a legal permanent resident…

The most important thing for legal permanent residents to keep in mind when undergoing a secondary inspection is that typically the right to live in the U.S. cannot simply be revoked at the border. However, that does not mean customs officers will not subject legal residents to questioning. Many may prefer to have an attorney present for such questioning, but unfortunately, not everyone will have that right. As it stands now, only U.S. citizens are able to ask that an attorney accompany them during this process. Those who simply hold a visa (even though a legal, and sometimes permanent, resident), do not hold the right to an attorney.

As for the search itself, every individual passing through customs must permit to a search upon request since 9/11. This includes one’s electronic devices, a fact which stirred up some controversy at the onset of the “travel ban.” Furthermore, the officers are even permitted to ask for access to social media profiles and other online accounts, such as email, as well as photos and documents on the device. However, the law has yet to catch up to this aspect of the procedure. There is no clear-cut law that allows such a search to occur, so assistance from a Miami immigration attorney in these instances is advisable whenever the situation allows for it — particularly given the fact that failing to consent to a search could present added problems. Green card holders could face a hearing where their resident status could be revoked, and even U.S. citizens could be held by the officers or have personal belongings seized.

If the individual is NOT a legal permanent resident…

For those who do not hold legal permanent resident status, there are fewer rights when passing through U.S. customs. Such individuals do not have the opportunity to consult with a lawyer, unless the person has been formally charged with a criminal act. However, that does not mean a skilled Miami immigration attorney cannot circumvent this. If traveling to the U.S. from a country that has been identified within legislation restricting entry to visitors, arranging for legal counsel prior to arriving at customs can go a long way. This is primarily due to the fact that failure to consent to a search in these cases could lead to a refusal of entry.

If you have questions or concerns about your rights at the border, call our office today to speak with an experienced member of our team. We are always here to guide you and protect your rights.

New Rule to Affect High-Skilled Nonimmigrant Workers

New Rule to Affect High-Skilled Nonimmigrant Workers

At a time when immigration laws are at the forefront of the political conversations in the United States, the U.S. Citizenship and Immigration Services has turned the discussion to regulations concerning nonimmigrants, by laying out the specifications of a law which will take effect on January 17, 2017. The “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers” will apply to both H-1B visa holders and those who have submitted Adjustment of Status applications that have been pending for more than 180 days.

The Rule

The primary function of the new rule is to expand upon existing codes to provide more flexibility for skilled nonimmigrants looking to work in the United States. A Miami immigration lawyer can better explain the complexities of the new legislation, but here are a few highlights of what the changes will entail:

  • Nonimmigrants (E-3, H-1B, H-1B1, O-1, or L-1) with an approved I-140 will be eligible for a new one-year employment authorization, if they can show compelling circumstances. Such circumstances include serious illness, a major upheaval encountered by the employer, and other significant harm that was unforeseeable.
  • Grace periods are now provided for nonimmigrants with varying visa classifications. Specifically, individuals who have secured E-1, E-2, E-3, L-1, and TN status will be granted 10 days at the beginning and end of the validity period. Up to 60 days may be afforded after one’s employment ends, if the person holds an  E-1, E-2, E-3, H-1B, H-1B1, L-1, or TN visa.
  • Assuming one’s I-140 is not revoked due to fraud or willful misrepresentation, I-140 priority dates may be kept. Those who hold I-140 petitions which are valid for 180 days or more will not have the petition automatically repealed, should the employer withdraw.

If you have questions about this new rule or any other immigration laws or regulations a Miami immigration lawyer at Pimentel & Castillo is always available to provide answers. Call our office today to schedule a free consultation.