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Consequences of Overstaying a Student Visa

Consequences of Overstaying a Student Visa

Miami immigration lawyer , , ,

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.

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Florida is a Surrogacy-Friendly State

Florida is a Surrogacy-Friendly State

Family Law, Florida Custody Litigation, Miami Child Custody Attorney, Miami Civil Trial Attorney, Miami Surrogacy Attorney , , , ,

Surrogacy has become an increasingly popular option for those struggling to conceive or carry a child. Even though entering into a surrogacy agreement is illegal in some states, that is not the case in Florida. In fact, Florida surrogacy laws are some of the least restrictive in the country. Nonetheless, surrogacy law is complex and a qualified Miami surrogacy attorney can guide clients through the surrogacy process.

Two Legal Surrogacy Agreements

Under Florida surrogacy laws both forms of surrogacies are allowed, gestational surrogacy and traditional surrogacy. Florida statute 742.15 governs Gestational Surrogacy Agreements, while statute 62.213 governs Pre-Planned Adoption Agreements, also called Traditional Surrogacy Agreements. Intended parents, legally referred to as the “commissioning couple,” can enter either of these agreements.

    • Gestational Surrogacy Agreement (GSA)

Pregnancy is created through in vitro fertilization, at least one of the intended parents must contribute genetic material, and the surrogate is prohibited from donating her own egg. Permitted combinations include:

    • egg and sperm from the intended parents
    • egg from intended mother and sperm from separate donor
    • sperm from intended father and egg from separate donor

To enter this type of agreement, the commissioning couple must establish the health risks, confirmed by a physician’s diagnosis, that prevent the intended mother from carrying the child herself.

    • Traditional Surrogacy Agreement (TSA)

Traditional surrogacy is significantly less popular than gestational due to legal issues. In this type of agreement, the surrogate can donate her own egg to create the pregnancy. The egg is fertilized with the intended father’s sperm, inside the surrogate’s uterus. Therefore, the child is biologically connected to the surrogate.

Parental Rights in Surrogacy Agreements

As dictated by Florida surrogacy laws, a written contract needs to be signed for either type of surrogacy agreement. An experienced Miami surrogacy attorney can help commissioning couples draft these contracts. However, the assignment of parental rights may depend on whether the surrogacy was gestational or traditional.

Gestational Surrogacy — The surrogate is not biologically connected to the child and therefore has no legal parental right to the child after giving birth. She relinquishes away any and all of her parental rights when signing the contract. The commissioning couple automatically has the parental and custodial rights of the child after the birth.

Traditional Surrogacy — Since the surrogate has a biological connection with the child, the assignment of parental and custody can become complicated. She may consent in the contract to give up her parental rights, but she has the right to rescind her consent and terminate the contract within 48 hours of the birth of the child. In which case, the legal counsel of a Miami surrogacy attorney becomes necessary for the commissioning couple.

The assistance of a seasoned Miami surrogacy attorney is beneficial for those who want to enter a surrogacy agreement, whether you are an intended parent or the surrogate. At Pimentel & Castillo, we are committed to make the process as smooth as possible for our every client. If legal drawbacks do occur, we are skilled at defending our client’s rights in court. Call us today for a free consultation.

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Governing and Jurisdiction Clauses in Contracts Q&A

Governing and Jurisdiction Clauses in Contracts Q&A

Miami Civil Trial Attorney, Miami contract attorney , , , , ,

A contract represents a legally binding agreement between two or more parties. However, even when all the parties sign on the dotted line contract disputes may still come up. When a dispute occurs and both parties have chosen to resolve it through civil litigation important questions come up, particularly when the two parties operate in different states. Where will the case be heard? Who will interpret the contract’s terms and based on what set of laws?

To significantly reduce the possibility of a lengthy and expensive dispute, it is advisable to get ahead of the problem by answering these questions before contract disputes arise by enlisting the expertise of a Miami civil litigation lawyer during the drafting of any contract. They will be sure to include both a Governing Clause and Jurisdiction Clause.

What is a Governing Clause?

The first step in determining which laws will be applied toward the resolution of contract disputes is to include a governing clause (also called choice of law clause) within the contract. Laws, especially those governing business contracts, vary by state. So, there may be various legal interpretations of the same contract depending on which state laws are applied. By including a governing clause, both parties agree on which state’s laws will govern the contract and interpret its terms should a dispute arise. Governing clauses are especially important when the parties signing the contract, such as businesses, are operating in separate states.

What is a Jurisdiction Clause?

Once a governing clause is agreed on, it is now time for the parties to choose which court(s) will have the right to hear any resulting contract disputes. This agreed-upon condition must be explicitly stated in the form of a jurisdiction clause (also called forum selection clause). By including a jurisdiction clause, both parties establish and agree on which court(s) will hear and decide on any disputes that arise from the contract. The jurisdiction clause and governing clause do not necessarily have to match, a specified state court can be made to apply laws from another state. There are two types of jurisdiction clauses.

      • Exclusive Jurisdiction — Only the court(s) specified in the clause have the right to handle contract disputes. Parties must litigate their case in those specified courts.
      • Non-Exclusive Jurisdiction — Both the specified court(s) and other courts not explicitly stated in the clause can handle disputes. Parties can choose to file their lawsuit in these unspecified courts.

Governing and jurisdiction clauses must be written precisely to prevent any misunderstandings and disagreements over jurisdiction in the future. The right choice of state laws and forum can also benefit a party and help them avoid disadvantages such as costly out-of-state litigation or unfavorable state laws. Consult with an experienced Miami civil litigation lawyer to ensure both these clauses, as well as the contract itself, are properly drafted.

At Pimentel & Castillo, our Florida civil litigation attorneys are skilled at drafting contracts and representing our clients in contract disputes. Call and request a free consultation with our experienced Florida civil litigation attorneys today.

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Medical Marijuana in Florida is Legally Available

Medical Marijuana in Florida is Legally Available

criminal defense attorney, Florida Marijuana Laws, Medical Marijuana in Florida, Miami criminal defense attorney , , ,

On Election Day, Floridians overwhelmingly voted in favor of Amendment 2 which legalized access to medical marijuana for people with certain conditions. The constitutional amendment was put into effect on January 2017. Now, certain people can obtain medical marijuana in Florida, but the requirements are strict and the process is not simple. People interested in legally purchasing marijuana should consult with a Miami criminal defense attorney knowledgable with Florida marijuana laws which are briefly explained below.

Qualifying for Medical Marijuana in Florida

Under Amendment 2, patients can legally possess and use medical marijuana to treat one of the following “debilitating medical conditions.”

      • cancer
      • epilepsy
      • glaucoma
      • positive status for human immunodeficiency virus (HIV)
      • acquired immune deficiency syndrome (AIDS)
      • post-traumatic stress disorder (PTSD)
      • amyotrophic lateral sclerosis (ALS)
      • Crohn’s disease
      • Parkinson’s disease
      • multiple sclerosis (MS)
      • other debilitating medical conditions similar to those above and that a qualified physician recommends being treated with medical marijuana

There are other requirements patients must fulfill to be eligible for treatment using medical marijuana in Florida, including the following.

      • Must be a Florida resident.
      • Diagnosed by their qualified ordering physician with a qualifying condition.
      • Treated by said physician for at least 3 months immediately prior to an order of medical marijuana being placed.
      • Registered with the Compassionate Use Registry by the ordering physician.
      • Must have valid Compassionate Use Registry identification card.
      • If under 18, must have an additional recommendation from a second physician.
      • Tried other treatments without success.
      • Risk of using marijuana was determined to be reasonable by the ordering physician.

It is the responsibility of a qualified physician authorized to order marijuana (either low-THC cannabis or medical cannabis) to follow Florida marijuana laws, diagnose patients properly, and decide whether to recommend medical marijuana as the most suitable treatment.

Ordering physicians can order up to a 45-day supply of medical marijuana and one cannabis delivery device for their qualifying patients. With a valid Compassionate Use Registry identification card (which needs to be renewed annually), a patient or their legal representative can then contact a licensed dispensing organization to have the order filled.

Once the patient has the medical marijuana, they must follow certain rules and restrictions concerning use, including where it can be used or administered.

If you are considering legally obtaining medical marijuana to treat your debilitating ailments, consult with a Miami criminal defense attorney to become more familiar with Florida marijuana laws. A legal professional can help you avoid to criminal liability and strongly defend your rights in the event that you are charged with a drug offense.

Call Pimentel & Castillo to request a free consultation with an experienced Miami criminal defense attorney today.

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What Does the Florida Court Consider When Deciding Child Custody?

What Does the Florida Court Consider When Deciding Child Custody?

Family Law, Florida Custody Litigation, Miami Child Custody Attorney, Miami Divorce Attorney , , , ,

Florida courts have wide discretionary authority when it comes to deciding Florida child custody in divorce cases, but they are most concerned with making a decision that will be in the “best interests of the child.” Essentially, this means the judge’s decisions on how custody rights and parental responsibilities will be divided are always tailored to fit the unique needs of the child.

An experienced Miami child custody attorney can address clients’ Florida child custody litigation needs and defend their parental and custody rights, so that the final custody arrangement will be favorable for both the child and parent.

In general, Florida family law upholds that children generally benefit from maintaining frequent contact and interaction with both parents and favors custody arrangements that accommodate this. The following are the best interest factors Florida courts most often consider before making a custody ruling in a divorce case.

Health, Safety, and Ethics

When deciding on a custody arrangement that will be in the best interests of the child, Florida courts consider the child’s health, safety, and moral development when determining best interest factors. A judge will review a parent’s behavior and the home environment thoroughly to uncover any elements that could disrupt the normal mental and physical development of the child. If there is evidence of domestic violence, child abuse, neglect, or abandonment, a parent or both parents could lose their custody and visitation rights. Additionally, to protect a child’s ethical development, a judge may consider a parent’s mental and physical state based on circumstances such as adulterous relationships prior to the divorce, frequent causal relationships with multiple partners, verbal abuse, substance abuse, and illegal activities.

Emotional and Developmental Needs

Other major best interest factors that are emphasized by Florida family law concern the emotional and developmental needs of a child especially concerning their general welfare, familial connections, education, and healthcare. These factors include:

    • Ability and willingness to be involved in their child’s life
    • Demonstrated ability to meet their child’s developmental needs
    • Love, affection, and existing relationship with their child
    • Awareness and participation in their child’s daily school and extracurricular activities
    • Familiarity with their child’s social circles and preferences
    • Home situation and the extent of its stability and permanence
    • Willingness to cooperate with other parent and honor time-sharing schedules

After reviewing all appropriate best interest factors, detailed in Florida Statute 61.13, a judge has the information needed to decide custody arrangements. In some instances, that decision may involve granting custody to a legal guardian. Sometimes, when a child is older and mature enough, a judge may allow the child to voice their custody preferences.

Florida family law, especially concerning child custody litigation, can be very complex. Call Pimentel & Castillo to have an experienced Miami child custody attorney represent you in a divorce case and defend your parental and custody rights.

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Adopting a Child With Birth Siblings

Adopting a Child With Birth Siblings

Family Law, Foster Care Adoption, Miami adoption attorney , ,

When one makes the decision to adopt a child who has birth siblings, it is understandable that there may be some added complexities. Even when a child does not have birth siblings at the time of the adoption, there is always the chance that his birth mother will go on to have other children. Navigating the situation can be difficult for the adoptive parents, as well as the children involved. Thus, it is important to not only know what the law says about sibling interactions, but consult with an experienced Miami family lawyer who has experience with adoptions involving these circumstances.

Laws Governing Sibling Relationships

It should serve as no surprise that keeping sibling relationships intact is typically (though not always) beneficial to the children involved. With that in mind, the courts have established some legal guidelines for these all important relationships. The Fostering Connections to Success and Increasing Adoptions Act of 2008 was the first piece of legislation that addressed this topic on a Federal level. It outlines the importance of keeping siblings in the same foster home whenever doing so is feasible. When this is not an option, the law requires that frequent visitations occur, permitted this would not be to the detriment of the children.

The issue of post-adoptive requirements of parents of adopted children with birth siblings is ultimately left up to the states. To date, Florida’s legislation only addresses adoptions completed by relatives, such as a grandparent. One of these is Statute 63.022, which seeks to keep siblings together whenever possible, whether it be in a foster home or an adoption. Another piece of legislation (63.0427) details the need for continued communication with birth siblings whenever the court deems appropriate. Both of these statutes come with quite a bit of gray area. Thus, the courts must consider the specifics of each unique case before determining what is best for the child.

If you are interested in welcoming a child into your home through adoption, selecting the right Miami family lawyer is of the utmost importance. Our office offers free consultations, and we would love to meet with you to discuss your unique situation. Give us a call today to schedule a meeting with one of our skilled attorneys.

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Foster Care Adoption Basics

Foster Care Adoption Basics

Family Law, Foster Care Adoption, Miami adoption attorney , ,

More than 100,000 children are in the U.S. foster care system waiting to be adopted. Each year, thousands turn 18 years old and leave the system without adoptive families. There are many misconceptions of foster care adoption that prevent potential South Florida adoptive families from taking action. A Miami adoption attorney can help guide families through the foster care adoption system and all the legal processes it entails. With such guidance and the basic information provided below, those who want to adopt will have no reason to shun foster care adoption.

The General Process Involved

The foster care adoption process, just like other types of adoption, cannot begin in earnest until the termination of parental rights is completed. The child’s birthparents’ parental rights must be legally terminated voluntarily or involuntarily by a court of competent jurisdiction. After the termination of parental rights, the child is legally considered free for adoption. This undertaking and further legal steps to adoption are complex procedures, plus adoptive families must meet inquiry, orientation, preparation classes, and home study requirements. Therefore, adopting through foster care lasts, on average, nine to 18 months. A Miami adoption attorney can guide adoptive families through this process with ease.

Cost of Foster Care Adoption

A very common misconception of adopting through the foster care system is that it is very expensive. The truth is that adopting a foster child costs from $0 to $1,500 on average. Typically, adopting directly from a public agency is free, while those who adopt through a private agency usually end up with out-of-pocket expenses. Often, those who adopt foster children have access to federal and state tax credits, adoption subsidies (specifically for “special needs” children), and other types of financial aid to support their adopted children until they reach adulthood.

Special Needs Children

“Special needs” is often used to describe children in the U.S. foster care system. Sometimes it deters potential adoptive families who do not know what the term means and are wary of its implications. Each state has its own definition, but generally a foster child is labeled as “special needs” when he/she has certain characteristics that may make him/her less attractive for adoption in the eyes of typical adoptive parents. In most instances, this term is used to describe older children (aged 5 and up), as well as children with one or more ongoing physical, mental, or emotional health issues. This designation can also be attributed to children that are members of a sibling group, as the siblings typically must be adopted together.

Single Adoptive Parents

In this article, the term “adoptive families” has been used liberally. However, it is important to note that the term (in this case), is used to describe families headed by two parents as well as families headed by a single parent. In all 50 states, unmarried single individuals are allowed to legally adopt through the U.S. foster care system. In fact, a significant portion of children adopted from foster care were adopted by single parents.

If you are considering adopting a child from foster care, call a Miami adoption attorney today. Our family law experts at Pimentel & Castillo are experienced at assisting South Florida adoptive families navigate the complex legal process, from termination of parental rights to final adoption.

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A Guide to Winning a Contract Dispute

A Guide to Winning a Contract Dispute

Miami Civil Trial Attorney, Miami contract attorney ,

For most business owners, a disagreement over the terms of a contract is likely to arise at some point. Without an effective strategy in place, such disputes can quickly prove costly. Therefore, understanding how to ensure the outcome is advantageous is absolutely essential.

Whether filing a suit over an unfulfilled partnership agreement, or battling one over employment contracts, here are some tips for coming out on top.

Preparation is Key

The best defense (or depending on the situation, offense) to a contract dispute actually lies in what the business owner does before the contract is even finalized. By making certain every contract one signs is clear in what is expected of each individual or company, a business owner guarantees any litigation later on is easily settled. The best way to avoid using language that may be open to interpretation is to enlist the services of a Miami contract attorney who will properly draft the terms of any agreement. Ideally, every question that could potentially arise should have an answer laid out in the contract itself.

Create a Paper Trail

Once the specifications of the agreement are laid out, it is of course important that both parties fulfill their obligations. Should the other party fail to do so, a business owner will improve his or her chances of winning a dispute with a paper trail demonstrating the unfulfilled obligation(s). Parties should always discuss amendments to an agreement or concerns with the other party’s performance via written communication, with any changes signed off on by both individuals.

Enlist a Qualified Attorney

In a perfect world, contract disputes would all be resolved before escalating to a formal civil suit. Of course, that is not the case; thus, recruiting an experienced Miami contract attorney to handle the dispute is critical to securing a favorable outcome. One’s lawyer can best advise him/her on how to proceed, and ensure all bases are covered to win in court.

If you are currently dealing with a dispute over a contract agreement, our team is here to guide you through it. Call us today to get started.

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Custody Battle Dos and Don’ts

Custody Battle Dos and Don’ts

Divorce Attorney, Family Law, Florida Custody Litigation , , ,

Custody battles are often mentally straining and stressful for the parents involved. The majority of parents do not enter into custody litigation proceedings unless they have come to the conclusion that having primary custody of their children is truly the best option.

An experienced Miami divorce attorney knows how to familiarize their clients with Florida family law and guide them through Florida custody litigation. The following are some dos and don’ts parents should follow to win a custody battle.

Do Act Properly in Court

In child custody battles, perception is always a determining factor. Both sides are able to present their opinions about their ex-spouses and their childrearing capabilities, but it is up to the judge to decide whether to believe or put value on those evaluations. For starters, judges will take into consideration the involvement of both parents in the custody hearings. Litigants should physically show up to court on time. They must look presentable by wearing attire appropriate for the courtroom. They must follow courtroom etiquette by being respectful to the judge and opposing party and not showing anger or using fowl language.

Do Ask Questions

Litigants invite additional unnecessary stress and anxiety by refusing to voice out their concerns. If parents do not understand something about the custody litigation process, they should not hesitate to ask for clarification from their attorneys and the court. They are entitled to voicing their concerns and getting clear answers.

Do Cooperate With Ex-Spouse

Divorcing parents going through custody litigation often have severely strained relationships, but to win a custody battle, parents must show the court a genuine willingness to work and get along with their exes for the benefit of children. Courts are more likely to rule in favor of cooperative parents over those who refuse to speak and collaborate with their exes.

Don’t Lie

Parents who are dishonest with the court by making unfounded allegations against their exes or exaggerating their exes’ shortcomings are doing themselves a disservice. It might seem like an effective way to improve their standing as parents in the eyes of the court. However, if those accusations or embellishments of the facts are discovered, their credibility will diminish and so will their chances of winning custody.

Don’t Coach Children

There is a point in the custody litigation process when the children of the litigants get interviewed by a custody expert and sometimes the court. In a custody evaluation, children are able to voice their opinions on the family dynamic and the reasons that led to their parents’ separation or divorce. Parents can inform their children about the interview and give them a general idea of what to expect to alleviate any confusion or fear. However, parents should not prepare their children for the interview, tell them what to say, or encourage them to talk negatively about their other parent. A custody expert will easily spot a child who has been coached, and it will reflect badly on the guilty parent.

Don’t Violate Orders

One of the easiest ways to get on the court’s bad side is by failing to follow a judge’s court orders. Parents must make strong efforts to comply with the judge’s requests, especially if those requests are binding and enforceable orders. Whether it concerns allowing communication and visitation between children and noncustodial parent or a myriad of other things. Litigants must always respect the court’s decisions or risk losing custody.

Florida custody litigation is a lengthy and complex process. If you are in need of legal assistance regarding divorce and child custody, talk with one of the Florida family law experts at Pimentel & Castillo. Call us to speak with a premiere Miami divorce attorney today.

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An Overview of One’s Rights at Customs

An Overview of One’s Rights at Customs

Miami immigration lawyer ,

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.

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