Who is subject to immigration arrest and detention?

By law, DHS cannot detain U.S. citizens. However, DHS is authorized to arrest and detain noncitizens, and in certain circumstances, can do so without an administrative warrant. The agency only may arrest and detain individuals if there is probable cause that there is a basis to deport the person from the United States.

In general, DHS officers arrest and detain individuals in the following situations:

• during interactions with the criminal justice system, including pre-trial court appearances and after being released from criminal custody;
• during broad-based or targeted home or worksite enforcement raids;
• at routine immigration interviews or appointments with U.S. Citizenship and Immigration Services; and
• after contact with CBP at a port of entry or apprehension near the border.

What happens after DHS initially arrests or apprehends a person?

After CBP officers arrest a person, they generally take the person to a short-term detention facility for fingerprinting, interviewing, and processing. If the person expresses an intention to apply for asylum or a fear of returning to his or her country of origin, DHS must provide an asylum screening and generally will transfer such individuals to ICE custody. A person who does not indicate an intention to seek asylum or a fear of return generally is transferred to ICE custody for immediate deportation. If, however, the person is a Mexican national detained at the Mexican border, CBP may repatriate the person at certain ports of entry along the border.

After ICE arrests a person without an administrative warrant inside the United States, the agency must make a custody determination and decide whether to place the individual in removal proceedings within 48 hours, unless there is an emergency or other extraordinary circumstance. In certain cases, including where ICE claims that the person has been convicted of certain crimes, the agency will take the position that detention is mandatory or that the person is not eligible for release. ICE takes the position that individuals it classifies as “arriving” in the United States who request asylum at ports of entry may only be released through parole. Whether individuals who entered between ports of entry and pass an initial asylum screening interview may seek release in a bond hearing before an immigration judge is at issue in litigation ongoing as of the date of publication of this fact sheet. ICE also generally refuses to release individuals who already have an outstanding or unexecuted order of removal, or who are subject to another summary removal process known as reinstatement for having previously been ordered removed and subsequently reentered without inspection.

If a person is eligible for release, ICE is supposed to assess the person’s flight and public safety risk profile before choosing whether and how to release the person. Following this assessment, ICE will determine whether the person is eligible for release, and if so, may utilize one of the following options:

• ICE may release an individual on his or her own recognizance, meaning that he or she signs paperwork committing to appear for scheduled immigration court hearings;
• ICE may release an individual on Orders of Supervision (OSUP). OSUPs contain additional conditions of release, such as electronic monitoring (i.e., wearing a GPS ankle monitor), periodically reporting to an ICE officer in person or by telephone, and travel restrictions. Conditions of supervision may involve ICE’s Intensive Supervised Appearance Program (ISAP).These conditions, used separately or in conjunction with one another, and are collectively referred to as “alternatives to detention” (ATD);
• ICE may require someone to post a monetary bond (similar to bail in the criminal context) to secure release. The immigration laws require a minimum bond of $1,500, but bond amounts can be as high as tens of thousands of dollars; or
• ICE may release an individual on parole, which is permission to reside in the United States for a finite period of time. ICE also may place a parolee on an OSUP requiring him or her to meet certain conditions to remain on parole.

Of these alternatives to detention, the majority of individuals released by ICE are released on bond or an ATD. As of August 2019, roughly 100,000 people were enrolled on an ATD at any given time. According to DHS, ATDs cost an average of $4.04 per day and have been shown to work with over 95 percent of individuals to ensure appearance for their final court hearings.

Even if a person is statutorily eligible for release, he or she still may remain detained. ICE often chooses not to release the person (i.e., refuses to set any bond) or sets a bond amount that the individual cannot afford to pay.

How can an individual challenge his or her detention?

If ICE decides to keep an individual in custody or sets a bond that the person cannot afford to pay, individuals may ask an immigration judge to order either release or a reduction of the bond amount.This request may be made orally, in writing, or, at the immigration court’s discretion, by telephone.

Significantly, a detainee does not need to be in removal proceedings before asking an immigration judge for a custody review hearing; the person need only be detained in immigration custody. To request a custody review hearing, a detainee must make the request to the immigration court with authority over their place of detention at the time of filing.

The same general process applies if DHS has set a condition of release with which the individual disagrees. For example, an individual may ask an immigration judge to review and vacate an ICE decision to release a person on an ankle monitor.

What happens at an initial custody redetermination (bond) hearing?

The first step in any custody redetermination hearing (also known as a “bond hearing”) is for the judge to determine whether he or she has authority to review or modify the person’s custody status. For example, if DHS claims that the individual has been convicted of an offense that subjects him or her to mandatory detention, the immigration judge first must determine whether the individual in fact has been convicted of that crime and, if so, whether the conviction falls under the mandatory detention statute. A person held under the mandatory detention statute generally is not eligible for release.

If the immigration judge determines that a person is eligible for release, the judge then decides whether release is warranted, and if so whether to release the individual on their own recognizance, bond, and/or other conditions. Release is warranted if the individual does not pose a danger to property or persons and is likely to appear at future court hearings. The immigration judge also can modify the conditions of release set by ICE, for example, by increasing or decreasing the amount of bond or by ordering the removal of an ankle monitor.

If the immigration judge determines that release is not warranted or the individual cannot afford to pay the bond amount set, the individual remains locked up in immigration detention. Individuals who must litigate their immigration cases from detention face numerous practical barriers, including limited access to attorneys and confinement in remote locations far from family, community, and one’s own attorney.

What options are available after an initial custody review (bond) hearing?

If ICE or the individual disagrees with an immigration judge’s custody decision, either side may file an appeal with the Board of Immigration Appeals (BIA) within 30 days of the decision. If an immigration judge and/or the BIA have issued a negative custody decision, an individual may ask for another bond hearing provided he or she can demonstrate a “change of circumstances” warranting release.

Some detained individuals may file a petition for a writ of habeas corpus to challenge their detention—including challenges to the availability of custody review hearings, the lack of procedural protections, and the length of detention—with the federal district court having jurisdiction over the place of the person’s detention.

Can a detainee with a removal order challenge their detention?

Once a person has been ordered removed and has exhausted or waived any appeals, ICE can detain the person while arranging deportation. However, in certain circumstances, ICE may be unable to execute the removal order. For example, the person may come from a country which does not accept individuals with final orders or the foreign government may refuse to issue travel documents to permit return. In those circumstances, ICE may seek to detain a person for an indefinite period of time until deportation becomes possible.

However, there are limits on DHS’s authority to indefinitely detain people who the agency cannot deport. If a person is not deported within the first 90 days after a final order of removal, DHS must determine whether there is a “significant likelihood” that the person will be removed “in the reasonably foreseeable future.” If DHS determines that the person will not be removed in the reasonably foreseeable future, then after 180 days have passed it must release the person on an order of supervision if they are neither a flight risk or a danger to the community. The agency is also required to renew this determination once every six months, and the person can file a habeas petition to challenge their detention once six months have passed.

San Jose Iranian Immigration Lawyer

United States immigration laws are complex. Individuals attempting to navigate the process without legal counsel face numerous challenges. Regardless of your goals, you can count on the Aria Law Group to be a knowledgeable and effective ally. San Jose Iranian Immigration Lawyer sole proprietorship is devoted exclusively to the practice of immigration and nationality law. I focus on complex, family-sponsored immigration and citizenship matters, business, corporate and employment immigration, as well as deportation defense and employment-based immigration to clients all across San Jose, Santa Clara, Mountain View, Sunnyvale, Bay Area, Palo Alto Fremont, and surrounding areas.

Our San Jose Iranian Immigration Lawyer is accepting new cases by referral.

I, Aria Vatankhah, am the member of the American Immigration Lawyers Association (AILA). I provide an initial consultation to prospective clients interested in retaining me for their immigration matter. During this meeting I conduct an individualized case assessment and answer questions and review options. If I am retained, I will personally handle each and every aspect of my client’s case. I make myself accessible to the client throughout the duration of the attorney-client relationship. I emphasize personalized legal counsel, based on prompt communication and exceptional customer service. I strive to provide legal services in a cost-effective and efficient manner without sacrificing careful and effective advocacy.

Family, Business & Employment-Based Immigration

Our San Jose Iranian Immigration Lawyer have extensive experience handling all types of immigration matters for individuals, families, and businesses. Our clients have included small businesses, tech startups, and HR staff in corporate entities. From family immigration to employment and corporate immigration, I can provide effective and smart solutions to help our clients achieve their immigration goals.

Citizenship, and Deportation Defense Attorney

Our San Jose Iranian Immigration Lawyer can assist the client by evaluating the merits of the government’s case, by advising the client on his or her rights in removal proceedings, and by identifying and pursuing potential defenses and avenues of discretionary relief to help the client avoid removal from the United States.

What is the purpose of E-1/E-2 visas? ویزای سرمایه‌ گذاری آمریکا

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Treaty traders have access to E-1 visas while treaty investors have access to E-2 visas. To allow for investment and/or trade, the U.S. must maintain treaties of navigation and commerce with the foreign country in order to meet the requirements for both categories.

What are the requirements of an E-1“treaty trader” visa?

The E-1 visa, known as the treaty trader visa, benefits residents of a treaty partner who are involved in a significant trade volume with the U.S.
Immigration law states that in order to qualify for a treaty trader (E-1) visa, applicants have to meet detailed requirements. The E-1 treaty trader requirements are as follows:
The applicant should be a resident of a treaty country.
The E-1 visa applicant’s trading firm and the treaty country must be the same nationality.
There should be “substantial” international trade which means that there is a proven continuous and substantial amount of trade.
More than 50 percent of the international trade must be between the applicant’s nationality (treaty) country and the U.S.
Trade is defined as the international exchange of technology, services, and goods where title of the items traded passes from one party to another.
The visa applicant must be working in an executive or supervisory capacity, or possess expert skills critical to the efficient operation of the company. Unskilled or regularly skilled employees are not qualified.

What is “trade” for the purpose of a treaty trader visa?

The word “trade” refers to the sale, purchase, or exchange of services and/or goods. Trade is broadly defined to include engineering, communication, banking, insurance, transportation, design, tourism, and consulting services.

What constitutes “substantial” for the purpose of an E visa?

“Substantial” is defined for traders as representing more than 50 percent of the trade, and for investors, as a quantity adequate enough to create a viable, not a minimal enterprise. The individual trade transactions do not have to be substantial as long as there is enough so that the total percentage of the trade volume is at least 51 percent between the treaty country and the U.S.

What are the definitions of “goods” and “services”?

Goods are defined as Goods are tangible products which have real value, not including securities, negotiable instruments, and money. Services are defined as economic pursuits whose result is not a tangible product.

What is the possible disadvantage of E-1 visa?

If the percentage of trade volume transfers from the U.S. to the foreign country, the applicant may no longer qualify for the visa.
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What are the requirements of an E-2 Treaty Investor visa?

The E-2 Treaty Investor visa requirements are:
The applicant must be a citizen from one of the treaty countries;
The applicant and/or company must have the same nationality as the treaty country;
The applicant must have invested or be currently in the process of investing;
The relevant business must be a real and functioning viable business;
The applicant’s investment must be significant;
The applicant’s investment must be more than just for minimal financial support;
The applicant must be able to “develop and direct” the business;
If the applicant is an employee, they must be heading for a supervisory/executive position or possess expert skills essential to the business’ functions in the U.S.; and
The applicant must plan to leave the U.S. when the E-2 visa expires.

What qualifies a company as a national of a treaty country?

To qualify as a national of a treaty country, the investment business must be a minimum of 50 percent-owned by nationals of the treaty country, and the non-resident investor or employee must also be a national of that country.

What is the “substantial” requirement of investment for the E-2 visa?

The investment should be of a substantial nature and cannot be insignificant. The law does not define a specific amount of money to satisfy the condition of substantial, and the term substantial is not clearly defined, nor is there a specific mathematical formula that can define this meaning. The Department of State regulations answer the question of a substantial amount of wealth as:
Substantial in the comparative sense, i.e., in relation to the total cost of either buying an established business or forming the type of business under deliberation;
Sufficient to guarantee the treaty investor’s monetary obligation to the successful function of the business; and
Significance to support the idea that the treaty investor will effectively direct and develop the business.
The guidelines also say that “whether an amount of capital is substantial in the proportionality sense is understood in terms of an invested sliding scale; i.e., the lower the total cost of the enterprise, the higher, proportionately, the investment must be to meet these criteria.”
What is the minimum amount of cash required to meet the test of substantial investment?
As a general rule, the minimum amount of cash required to meet the test of substantial investment is $100,000 U.S., as long as that amount is proportional to the purchase cost. An investment of less than this amount might appear to be insubstantial unless it can be proven that the business does not require a larger investment and that the amount invested represents the majority of the purchase price. However, this amount must be a general guideline and should be evaluated concerning factors such as the investment, the ratio of capital to purchase cost, the rate of return, the type of business, and other factors.
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Is there a specific amount of money that will meet the substantial investment test of the E-2 visa?

An investment amount of $1,000,000 or more will be considered as a substantial investment because of the large size of the commitment even though it might not meet the recommended percentage from the guidelines.

In addition to the substantial investment test, are there other investment restrictions for the E-2 visa?

The investment must be active in nature (capital investment), not just inactive (real estate or stock). It must involve investments that put the investor at risk. Loans secured by the business assets do not meet the requirement of being an active investment.

How long can I stay in the U.S. with the E-visa?

Treaty non-residents are admitted to the U.S. for an initial term of two years, regardless of the remaining term of validity on the non-resident’s visa. For example, if the visa only has one week of validity left, the non-resident will be admitted for the full two-year period. Every trip abroad will result in the non-resident being readmitted with a new two-year validity period which means that if the non-resident travels outside of the U.S. once a year, they will never need to apply for an extension from the USCIS.

How can I extend the E-visa for me and my family?

If you and your family do not travel outside the U.S. during the two-year period of validity on the E-visa, you will need to apply for an extension with the USCIS on Form I-129. Family members are not included on Form I-129, so they will need to fill out Form I-539 which is the standard application for a stay extension.
Extension requests on Form I-129 (and supporting I-539 forms for family) must be filed with the California Service Center, without regard to the employment location. Extensions may be granted by USCIS in two-year segments, with no maximum time limit of stay for the holder of the E visa.

Does my E-visa authorize me to work?

The holder of an E-visa may be employed in activities related to the conditions of the non-resident classification. The specific conditions will be noted on the non-resident’s E visa.

Does my spouse’s E-visa authorize him/her to work?

The answer is yes, the spouses of both E-1 and E-2 non-residents can apply for authorization of employment.

Where should I submit the E-visa application? What forms should be filed?

The non-resident should apply for the E visa at a U.S. consulate abroad. The application must be submitted along with the supporting evidence of the main requirements for investor status or treaty trader. The current version of the form (Form DS-156E) is mandatory for consulates issuing the E visa.
For non-residents already in the U.S. under a different visa category, it is possible to apply to the USCIS for a change of status to E-1 or E-2. This should be done by submitting Form I-129 and any supporting evidence required for the visa application.

Where should I file Form I-129?

The I-129 forms (and supporting I-539 forms for family) must be filed with the California Service Center, without regard to the employment location.
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Can I expedite my E visa petition?

The answer is yes, E visa applicants can seek accelerated processing of their cases. Expedited cases must be decided within fifteen days. Applicants asking for accelerated processing should submit Form I-907 along with the $1,000 fee required for expedited requests. This fee is in addition to the I-129 standard filing fee.
What is the procedure of obtaining an E visa from a U.S. consulate located abroad?
After the E visa application is completed, there are several steps that need to be taken to complete the process. The non-resident visa application packet must be submitted to the U.S. consulate abroad where it might be prescreened before an interview. During this procedure, further evidence may be requested from the applicant. The interview with the visa applicant is then conducted, although the consular officer may want to meet with the individual investor or company representative before the interview with the person coming to the U.S. in order to prove eligibility for the treaty classification. Many times, the company qualification and visa issuance can be accomplished during the same interview. If the company or investment were qualified during a prescreening, then the interview will focus on the eligibility of the applicant and family members into the U.S. as non-residents.

How long is the E-visa valid?

The E visa validity period and quota of entries are determined by an agreement between the U.S. and the non-resident’s home country. In most cases, a validity period of five years is common as well as the issuance of multiple entry visas. The maximum validity periods for E visas are listed by country in the Foreign Affairs Manual, volume 9.
What visa is issued to the family members of E-1 and E-2 visa applicants?
Family members of a non-resident qualified for E-1 or E-2 visas are classified in the same category as the principal visa holder. There is not a separate category for family members as in the case of other visa categories.

What is the filing fee for E-1 and E-2 visas?

The E-1 or E-2 filing fee is $390.

What is the attorney fee for an E visa petition?

The attorney fee is established on a case-by-case basis. Please refer to the following legal fee chart for Aria Law Group.

The United States Department of Treasury Office of Foreign Assets Control (“OFAC”) administers the nation’s sanctions programs through the burden of both criminal and civil penalties and the blocking of property and benefit under the authority of the United States.
The rules and measures for complying with these sanctions are difficult and tiresome. Individuals who are in conflict with OFAC administered sanctions, possibly have no idea that they or their business are at the risk of OFAC freezes their assets, fines them, or worst of all, face criminal charges.

Given the wide application of these regulations, individuals and businesses can be targeted by simple involvement with others who have been red-flagged by OFAC. Whether you are a landlord renting property to someone who has been placed on OFAC’s Specially Designated National List, a graduate student seeking to travel to Cuba, or a foreign lawyer providing legal services to a sanctioned, you are at risk.
If you are a U.S. person, or own property or interests under the authority of the United States, and have dealings with anyone from the following countries: Belarus, Burma, Cuba, Iran, Iraq, North Korea, Sudan, Syria or are possibly associated with individuals or entities engaged in terrorism, you may be at risk.

O.F.A.C. Regulations involving Sanctions against Iran

In general, unless licensed by OFAC, goods, services, or technology may NOT be exported, re-exported, sold or supplied, directly or indirectly, from the United States or by a U.S. person, wherever located, to Iran or the Government of Iran.

These regulations apply to:

1.     All U.S. citizens;
2.     All U.S. permanent residents (green card holders);
3.     All U.S. citizen or U.S. permanent residents located outside the United States;
4.     All U.S. incorporated entities and their foreign branches;
5.     All foreign subsidiaries owned and controlled by U.S. companies;
6.     All persons or entities within the United States.

These regulation apply to all U.S. persons mentioned above wherever located. Furthermore, a U.S. person may NOT export from the U.S. any goods, technology or services, if the person knows or has reason to know such items are intended specifically for supply, transshipment or re-exportation to Iran.

The United States government is absolutely and strictly enforcing these laws. There are various Iranians and Iranian-Americans being prosecuted criminally and civilly at the present time. In fact, the U.S. Department of Justice sought and obtained an enhancement of criminal and civil penalties of Iran sanctions from the U.S. Congress in October of 2007 to a maximum of 20 years per violation. Civil penalties were enhanced to the greater of $250,000 per transaction or twice the amount of the transaction.

Furthermore, most transactions related to Iran are prohibited by the Iranian Transactions Regulations (I.T.R.) unless licensed by the Office of Foreign Assets Control of the U.S. Department of Treasury. Sale of any personal or real property in Iran is prohibited unless a specific LICENSE is obtained prior to such a sale. This prohibition applies to any real property; whether acquired by gift, inherited property or acquired long before the enactment of Iran sanctions. 
“U.S. persons, including foreign branches of U.S. depository institutions and trading companies, are prohibited from engaging in any transactions, including purchase, sale, transportation, swap, financing, or brokering transactions related to goods or services of Iranian origin or services owned or controlled by the Government of Iran.”

Also it should be noted that If an individual’s name is on any real property in Iran, you will need a specific license before you can sell the property. However, if there was a probate proceeding in Iran and you have inherited an interest in real property in Iran, you may not need a specific license, and may be qualified to use “General License B” to receive the funds in the U.S.

Transactions ordinarily incident to travel to or from Iran are exempt and authorized. Included are payment of living expenses and acquisition of goods and services for personal use and arrangement or facilitation of such travel including air, sea or land voyages.

For relocating in Iran, taking (exporting) household and personal effects for family use are authorized if the articles have been actually used by said family members (not intended for use by others or for sale nor otherwise prohibited).
Bringing (importing) Iranian-origin household and personal effects for personal or family use of persons arriving in the United States are authorized, if such articles have been actually used abroad by such person or by other family members. They must not be intended for any other person, nor for sale, and must not be otherwise prohibited.

Before OFAC catch you, you should comply with the OFAC’s sanctions rule and protect yourself from possible consequences. Correct compliance with the sanctions can be accomplished, if knowledgeable and experienced attorney is retained.
Our Iranian OFAC Lawyer has the compelling experience in applying general and specific OFAC license when it is required by different agencies.
Before OFAC catch you, you should comply with the OFAC’s sanctions rule and protect yourself from possible consequences. Correct compliance with the sanctions can be accomplished, if knowledgeable and experienced attorney is retained.
Contact our Iranian OFAC Lawyer and retain his compelling experience in applying general and specific OFAC license when it is required by different agencies.