FREQUENTLY ASKED QUESTIONS ON IMMIGRATION ISSUES!

Andriy Semotiuk, a U.S. as well as a Canadian immigration attorney [and UABA member] has been frequently asked insightful questions on current immigration issues. Andriy is a member of the bars of New York and California in the United States as well as Ontario, Alberta and British Columbia, Canada. Andriy has responded on the area of U.S. immigration and touched on Canadian alternatives for those who are illegally in the USA in the hopes his responses may be able to help some of our readers.

For a video about US immigration see:
 http://www.youtube.com/watch?v=iKI69gXkzFU

Recently there has been a lot of talk about full body scans and pat downs at U.S. airports as part of the immigration process. What are your views on this?

The main purpose of US immigration laws is to regulate the inflow of foreigners in a way that protects Americans from national security threats, criminals, health dangers, and undue burdens on social programs, etc. Full body scans and pat downs are one way to block dangerous people from entering the United States and are therefore part of the screening process put in place to achieve these objectives. 

I have no problem with the scans and pat downs but do respect the concerns of those whose raise objections to their private parts being touched or who consider overly zealous intrusive searches as an affront to their personal dignity. There is a fine line that needs to be walked but there is little else we can do in the face of the real security threats that menace American society. More generally, I like the Israeli idea of using interviews of passengers to ferret out dangerous individual although I acknowledge this would be challenging in the context of the numbers traveling every day in the USA.

More generally, the US immigration system is struggling to cope with enormous challenges placed on it. 

The growth of illegal immigrants in the United States is demonstrable evidence that changes to the immigration system are needed. It seems the immigration system is making it hard for those who deserve to come and are applying legally but easy for those who do not deserve to come and are coming illegally. Everyone agrees changes are needed but it is hard to agree on the question of what should be done.

You mention illegal immigrants. According to news reports there is a large body of Ukrainians who are illegally in the United States as well.  Can you comment on that problem?

Well, there are over 10 million illegal immigrants in the United States. Of course something has to be done to stem the flow of new illegals coming in, but also something has to be done with those who are here. Those are policy issues that Congress has to take up. At one time I was very much against illegal immigrants and didn't want anything to do with them. That was before I met some and came to realize the profound hardships they face and how they ended up where they are. Today I am more sympathetic to them and I seek out ways to try and help those who contact me. I am particularly so after meeting many Ukrainian immigrants who are here in unlawful status. I am led to believe there are thousands of such Ukrainians in cities like Detroit, Chicago, New York and Philadelphia - most stuck with no way out of very difficult circumstances, often separated from their families back home who they are supporting from money earned here.

Is there anything that can be done to help someone who is illegally in the United States?

In some cases, yes. Much depends on the circumstances of the individual. While not many will qualify, there are some ways that someone who is unlawfully present in the United States can become a lawful permanent resident

Can you cover some of these ways?

Well the first way is through Registry. If you have been in the United States unlawfully since January 1st, 1972 and have not left the United States in all that time, you can adjust your status to permanent resident. Effectively you have "made it" by virtue of being here so long and not come to the attention of authorities. I would suggest using an immigration attorney so you get it right.

OK. 1972 is a long time ago. Are there any other ways?

Yes. There is the so-called Section 245(i) partial amnesty situation.

If 1) you were present in the United States on December 21st, 2000 and, 2) at any time on or before April 30th, 2001 anyone filed any bona fide immigration application for you in the USA, or 3) any labor certification application with the Department of Labor for you so your could work, you may be eligible to apply to adjust your status to permanent resident. You will have to pay a fine of $ 1000 for being unlawfully present, but at least there is a road out of immigration stagnation for you. Note that the immigration application mentioned could be one where your parents may have been the targets of an immigration petition to bring them to the USA and you were included as a dependent child - that would also work.

There was an earlier version of this same provision, a little less stringent in requirements, relating to people who were present in the USA prior to January 14th, 1998 that could also apply to you if you were in the USA that long.

If either of these situations applies to you, you should contact a U.S. immigration attorney to help you apply.

Well, these are still pretty remote situations. Are there any more common ways to gain permanent residence?

A more common situation that could arise is if you have been unlawfully in the United States for not less than ten years and not previously been the subject of immigration proceedings to deport you, you could apply for cancelation of removal in the context of a deportation hearing. To be eligible you would need to show that you are of good moral character, i.e. no criminal convictions, and your removal would cause extreme hardship to a U.S. citizen close family member. Extreme hardship to you does not count - only proof of hardship to your U.S. citizen family member such as a parent, spouse or child. Again, if this situation applies to you then you should contact a US immigration attorney.

Is there any way that is more common?

Well no. Except if you were to marry someone who is either a US citizen or a lawful permanent resident, then you would be allowed to adjust your status to permanent resident by virtue of the sponsorship of your spouse. But in this case the key ingredient is a real, honest marriage and not one of convenience only to gain immigration status.

Such a marriage-based sponsorship will clean up your unlawful presence in the USA. Because you were in unlawful status, however, the US Citizenship and Immigration Service will review the marriage with a fine toothcomb to determine whether it was an honest marriage. You need an attorney for this.

What if none of these work. You are a Canadian immigration lawyer as well. Are there any options for unlawful immigrants in the United States that would involve a Canadian immigration option?

Yes. There are some possibilities here. But unfortunately, they are limited.

The key for Canada is that the illegal U.S. immigrant must have entered the United States in lawful status, such as a student with a visa, for example. In addition, the immigrant must have been in the United States for at least one year in lawful status, even if now they are no longer in legal status. A one-year US visitor will not work in this case but for example, someone who studied in the USA for a year, or got a temporary work permit for a year, would.  Such an individual would be eligible to apply to immigrate to Canada without having to return to their home country. However, since they were unlawfully present in the USA, they will not be eligible to apply for any temporary work, student or visitor status. Their only option is to apply for permanent status in Canada. This is because Canadian officials would regard the evidence of unlawful status in the USA as evidence of the fact that such an individual would not likely leave Canada at the end of their period of authorized stay if granted a temporary status.

These circumstances pretty much mean that the applicant is likely going to have to apply either as someone married to a Canadian citizen or permanent resident, or as a skilled worker. Marriage-based applications are pretty straightforward. 

As for skilled workers, such an applicant will have to 1) pass an English language so-called IELTS test, 2) have an occupation that is identified on Canada's shortage occupations list which consists of the following:

• 0631 Restaurant and Food Service Managers
• 0811 Primary Production Managers (Except Agriculture)
• 1122 Professional Occupations in Business Services to Management
• 1233 Insurance Adjusters and Claims Examiners
• 2121 Biologists and Related Scientists
• 2151 Architects
• 3111 Specialist Physicians
• 3112 General Practitioners and Family Physicians
• 3113 Dentists
• 3131 Pharmacists
• 3142 Physiotherapists
• 3152 Registered Nurses
• 3215 Medical Radiation Technologists
• 3222 Dental Hygienists & Dental Therapists
• 3233 Licensed Practical Nurses
• 4151 Psychologists
• 4152 Social Workers
• 6241 Chefs
• 6242 Cooks
• 7215 Contractors and Supervisors, Carpentry Trades
• 7216 Contractors and Supervisors, Mechanic Trades
• 7241 Electricians (Except Industrial & Power System)
• 7242 Industrial Electricians
• 7251 Plumbers
• 7265 Welders & Related Machine Operators
• 7312 Heavy-Duty Equipment Mechanics
• 7371 Crane Operators
• 7372 Drillers & Blasters - Surface Mining, Quarrying & Construction
• 8222 Supervisors, Oil and Gas Drilling and Service

and 3) have at least one year of paid full time work experience in the relevant occupation.

If the applicant meets these requirements then he or she must score 67 points on an assessment test. The most likely to succeed are married individuals who have completed college or trade schools, whose spouses also have higher education and who are under 50 years of age, particularly if they have close family in Canada. Such individuals can pretty much self-petition their way into Canada without relying on an employer to offer them a job. They can find something once they arrive. It is not as hard as it may seem. And they can come directly to Canada from the United States.

If your occupation is not on the above list then you cannot self-petition your way into Canada, but you could still immigrate there if you have someone who is prepared to offer you a job in your occupation and work with an immigration lawyer to obtain government approvals for the job offer to you as a foreign worker. Those approvals would involve Service Canada who will check to determine if the wages offered are those prevailing in the industry and place where you would be working and whether there are any Canadian workers ready, willing and able to take the position. Some advertising of the job is usually required in the local Canadian newspaper and on web sites before it will be approved for someone outside Canada. It sounds impossible, but it can be done. 

If I were an illegal immigrant looking to immigrate to Canada and I had an occupation that is not on the list of those in short supply, I would advertise on www.craigslist.comand www.kijiji.com to try and find someone in Canada who would be willing to offer me a job in the occupation I have. I would also apply for jobs online on various job web sites like monster.com. It is a long shot, but sometimes it works. I would also contact friends and members in my community that may have contacts in Canada for this purpose.

Again, such applicants can directly immigrate to Canada without returning to their home country. 

If you are someone with skills or higher education and fit the criteria above but are illegally in the USA and cannot show a legal entry or at least one-year legal presence, you could still apply to immigrate to Canada, but in this case you would have to return to your country of origin at least for your interview. It may also even be possible to get the work visa stamped into your passport by mailing it back to the Canadian Consulate in your home country so you did not have to return. In such a case the medical exam would have to be done and police clearances would have to be arranged for, in the United States.

Is this something an illegal American immigrant wanting to immigrate to Canada can do himself or herself?

No. You need an immigration lawyer to help you with this. The area is complicated and the lawyer needs to know both US and Canadian immigration law. For example, few Canadian lawyers would know that the risk of someone in the USA who has been in unlawful status for over a year takes in leaving America is that they will incur a 10 year bar to re-entry. Leaving America for an illegal is therefore a big deal. Even if you were unlawfully present for less than a year, but more than just six months, you would incur a three-year bar to re-entry if you left. So handling these kinds of cases are tricky and not for everyone.

If anyone would like to contact Andriy he can be reached at the following address:

Andy Semotiuk, Esq.
Pace Law Firm
Sixth Floor
295 The West Mall
Toronto, Ontario
Canada M9C 4Z4
Phone 416-236-3060
Fax: 416-236-1809

Asemotiuk@pacelawfirm.com
www.paceimmigration.com
sub-web site: www.myworkvisa.com

Update on -- Ukraine Files a RICO Complaint in Oregon

On October 15, 2010, news wires reported that Ukraine had filed a RICO complaint in Oregon claiming that during the tenure of Julia Tymoshenko as Prime Minister, Ukraine was defrauded of nearly 1/2 billion dollars. http://uaba.org/Default.aspx?pageId=774425&mode=PostView&bmi=444696 

On December 8, The Minister of Finance of Ukraine Fedir Yaroshenko stated in a press briefing today that the Ministry's investigation of the recently conducted international audit had revealed the embezzlement of 3 billion UAH (USD 375 million) by Yulia Tymoshenko's government. http://www.prnewswire.com/news-releases/ukraines-finance-ministry-claims-previous-government-embezzled-usd-375-million-111513624.html

The full investigative report is available at the following site.  http://minfin.gov.ua/document/274231/report1.pdf

Amended Tax Code Passed by Ukraine's Parliament
 -- is it enough of a change?

The tax code originally vetoed by Pres. Yanukovych on Nov. 30, 2010 has been hurriedly modified and re-adopted by the Verchovna Rada on Dec. 2 at the President's behest. But will it satisfy the International Monetary Fund's demands for tax reform? Will it satisfy the demands of the demonstrators? Or will there be another showdown at the Majdan? Read  the various opinions below.

Boston Globe Ukrainian Parliament passes controversial tax code
http://www.boston.com/news/world/europe/articles/2010/12/02/ukraine_president_changes_tax_law_after_protests/

Kyiv Post Ukraine softens tax blow on small business
http://www.kyivpost.com/news/business/bus_general/detail/91943/

Kyiv Post Adopted tax cosde won't solve problems of businessmen
http://www.kyivpost.com/news/nation/detail/92019/

BBC News Ukraine police clear Kiev tax protesters' camp
http://www.bbc.co.uk/news/world-europe-11909995

Ukr. News Agency Tymoshenko For Cancellation Of Tax Code Passed By Rada With Yanukovych' Proposals
http://un.ua/eng/article/300509.html

The President of Ukraine signed the Law Implementing
Electronic Registration of Legal Entities

Asters Law Firm Newsletter, Kyiv, Ukraine
On 10 November 2010, the President of Ukraine signed the Law of Ukraine introducing the electronic registration of legal entities and individual entrepreneurs, dated as of 19 October 2010 No. 2609-VI (the "Law"). This system is anticipated to provide for the transparency of the incorporation procedures and their simplification in the presumable absence of bureaucratic protraction. The Law was also aimed at eliminating forgery of the documents filed for registration, counteracting to corrupt practices and corporate raid, as well as facilitating public access to information from the Unified State Register of Legal Entities and Individual Entrepreneurs (the "Register").The Law shall become effective on 14 August 2011.

Background
The facilitation methods of the state registration of business entities were a long-debated issue over the last years. One of them is the introduction of online business registration system, which is widely employed in the European Union. In 2009, the Cabinet of Ministers of Ukraine approved the Action Plan for the introduction of the electronic registration system of business entities. Enactment of the Law is intended to mark the final stage of this process. However, in view of pendency of certain legal and technical issues, there are doubts that the Law provisions would suffice for effective improvement of incorporation process in Ukraine.

Implications
The Law is deemed to minimize the notoriously exhausting communication with the state registrar. Applicants will have an option to submit the electronic documents in order to effect registration of a company. The state registrar shall keep record of received electronic documents and notify the applicants of their receipt. The electronic documents and registration card shall be attested by the electronic digital signature. The payment of registration fee shall be confirmed by an electronic settlement document, attested by the electronic digital signature. The applicant shall be notified of the rejection of its application by an electronic message from the state registrar.

However, the electronic system cannot be used in case of registration of changes to the constituent documents of a legal entity: the relevant documents shall be submitted solely in hard copy, not in the electronic form. In addition, some documents (e.g. certificate from the Register on reservation of the name of a legal entity) should still be sent in hard copy to the state registrar.

All necessary information concerning the electronic format of outgoing documents, as well as programs to create and submit documents necessary for the registration of business entities will be freely accessed on the official website of the State Committee of Ukraine for Regulatory Policy and Entrepreneurship. Electronic requests will ease obtaining official information from the Register on the Ukrainian business counterparties.

Anticipated challenges
Notwithstanding these indisputably positive innovations, the efficiency of introduced measures does not appear to be conclusive. In particular, the necessity to use the electronic digital signature obtained from centre for key validation with the object of execution of electronic documents – may render this new option impracticable for many potential applicants. The whole process of sending documents will undoubtedly be accelerated, as compared to the use of regular mail, but the new system will not release the applicants from compliance with traditional offline post-registration procedures (e.g. submitting documents to various funds and tax authorities), which are still cumbersome and time-consuming.

Consequently, the positive effect of the Law implementation may eventually be stultified without due respect of outstanding practical and other issues.

Viktor Yanukovych vetoes unpopular tax

The Ghost of November Past!

Commentary by Myroslaw Smorodsky
President Yanukovych is experiencing a variation on the classic December tale “A Christmas Carol”. Rather than seeing a revelation about the true meaning of December’s Christmas, it is the prior events in the month of November that are giving him sleepless and frightening nights.  The irony of the situation should not be ignored. In 2004, it was November’s Orange demonstrators that were in vogue on the “Maidan” [Kyiv’s central plaza that hosted the Orange Revolution] and denied Yanukovych the presidency of Ukraine.  Now it is the Tax Revolution with small business owners from all political persuasions that have taken to the “Maidan” and are throwing a wrench into his allegedly “unassailable” administration.

One of Yanukovych’s lynchpin planks in his political program was purported tax reform.  It was his Party of Regions that crafted the legislation and guided it carefully though Ukraine’s Parliament – the Verchovna Rada.  Its passage was lauded by international political pundits and applauded by the EU as a step in the right direction paving the way for IMF financing of Ukraine’s deficit economy.  

But “A Funny Thing Happened On The Way To The Forum Maidan”.   

The Ukrainian middle class, small-business owners were outraged that the alleged “tax reform” gave preferential treatment to the rich oligarchs at their expense.  Having no response from the legislators to their pleas, they did what all good Ukrainians do – they decided to demonstrate.  So a tent city began to sprout on the Maidan.  And now Yanukovych seems to have blinked first.  He and his administration have stated that there is a strong probability that he will veto the legislation. We have yet to see whether these statements are accurate.  If he does not veto the legislation, then we can anticipate that the tax revolutionaries, having drawn first blood, will escalate their occupation of the “Maidan” creating a critical showdown with the president – which many observers predict he will lose. 

In any event, the present situation has clearly shown that Yanukovych is not a replica of Putin.  Yanukovych’s administration is susceptible to the pressures of public opinion and his invincibility cloak has been compromised.  This may foreshadow future Maidan showdowns if Yanukovych attempts to mimic the repressiveness of Ukraine’s neighbor to the north.

see RFE/RL reports on protests at http://www.rferl.org/content/ukraine_tax_protest/2234226.html

Draft tax code brings many international changes
Sergiy Melnyk of Salans in Ukraine describes how the new draft tax code in Ukraine constitutes a significant  departure from previous international tax provision in the country. Read entire article at http://salans.com/~/media/Assets/Salans/Publications/2010/20100924-Salans-Kyiv-Draft-Tax-Code-Sergiy-Melnyk-International-Tax-Review-September-2010.ashx

ED NOTE: since the publishing of the article, the Ukrainian Parliament adopted the new tax code on November 18 which has sparked numerous demonstrations. SEE YOUTUBE Video of tax protests in Kyiv  http://www.youtube.com/watch?v=uCEhhlzyWqQ&feature=channel

Ukraine's National Bank Requires Individual Licenses for Payments
by Ukrainian Sureties to Foreign Creditors

BY Armen Khachaturyan,  Senior Partner, Asters Law Firm, Kyiv
     On 15 November 2010 the National Bank of Ukraine (the "NBU") issued an official clarification letter (the "Letter") regarding the currency restrictions applicable to payments by Ukrainian sureties and guarantors to foreign creditors under guarantee (garantiya) and surety (poruka) agreements. In the Letter the NBU explained that in order to make a payment to a foreign creditor a Ukrainian surety must obtain an individual license from the NBU unless the surety is an authorized bank or financial institution.
     At the same time Ukrainian banks can make payments as guarantors or sureties without an individual license. Non-banking financial institutions do not need an individual license for such payments if they have a general license for transactions with foreign currency.  Read Article http://www.asterslaw.com/upload/medialibrary/newsletters/asters_newsletter_eng_23_11_10.html