Most practicing immigration lawyers remember the chaos in 2007 and 2008 when the H-1B caps were met and filled in one day.  Stories of four 52' semis parked outside the Vermont and California Service Centers the morning of April 1, each filled to the top with boxes and envelopes.  Only a fraction of which would be selected by a computer to win the H-1B lottery - what happens when Congress fails to update its programs.


Now it appears that maybe history is repeating itself.  And still no solution in sight! 

Only 65,000 H-1B visas are available every fiscal year.  Another 20,000 are available for graduates with US Master's degrees.  Remember, an alien can only be counted against the quota once every 6 years, so the quota does not apply to extensions and transfers.  There are also a fair number of cap-exempt H-1B's, usually when the employer is a university or affiliated with one.

To get an H-1B, an alien has to have a bachelor's degree or its equivalent.  These are all smart, driven, professional people.  And our policies put a quota not only on visa numbers, but on intelligence.  Those aren't my words.  Those are the words of Bill Gates.

According to a USCIS announcement on March 15, USCIS anticipates a great deal of filings, probably in excess of the 65,000 available.  In response to this, USCIS is making a change in H-1B filing practice.  Premium processing petitions (where you get a decision within 15 days for an extra $1,225 in filing fees) will now only be data-entered after April 15, 2013.  You can still file your premium processing case as of April 1, but the 15 day clock won't start running until April 15.  This is so that USCIS can data enter in all the regular processing H-1B petitions they're expecting the first two weeks of April.  So basically, April 15 will be 'day 1'. (This means your case will not be delayed if you choose to premium process.)  

If you file on Friday, March 29, 2013, the petition will arrive on Monday, April 1, 2013.  They will hold all filings until Friday, April 5, 2013 and then count the filings.  If the cap is not filled, then all cases will be receipted and no lottery will be held, but April 15 will be "day one" for premium processing filings.

If more than the allotted number arrives on or before April 5, 2013 then there will be a lottery.  If past years are any indication, there will be two rounds.  The first round will be for master's degree cases, and the second for the "losers" from the master's degree cases which will be tossed into the general lottery for the non-master's cases.

If you're on OPT, you might want to consider filing an H-1B now even if you're eligible for a STEM extension.  If the lottery does take place, then this year may be your only chance - because if you take the OPT extension and there's another lottery situation next year, you might find yourself on a one-year unwanted vacation, or getting a degree you don't need.  If your case gets rejected (ie, you lose the lottery) you may still have time to apply for an OPT extension.  But if you don't try to change your status to H-1B, you're putting your entire future on the possibility that you'll win next year's lotto - but the difference is, you might not have an OPT extension to fall back on.

And if you can't find an employer - here is some helpful advice.

This past weekend, an Obama Administration official leaked a partial draft of a White House immigration proposal.  It is just a draft, it is not complete, it is not yet law, but it still gives us an idea of what the White House is thinking about immigration reform.  So far the White House has been relatively silent, supporting bipartisan efforts on immigration reform in Congress from the sidelines.  However, the White House has finally spoken up and we like what they have proposed.  This is what the White House plan includes:

Creation of a new “lawful prospective immigrant visa”

In order to provide a path to citizenship for the 11 million undocumented immigrants in the U.S.,  the White House proposes creating a “lawful prospective immigrant” visa, similar to the visa proposed by the Senate group working on immigration reform.  The White House version of the visa would allow immigrants to reside legally in the U.S. for four years.  After the four years are up, they could reapply for an extension.  During that time they would be allowed to leave the country to travel for short periods of time.  After eight years, immigrants could apply for a green card, if they have learned English and about the history and government of the U.S, and have paid their back taxes.  After they receive a green card, they would be on the path to U.S. Citizenship.  

Proposed requirements to qualify for “lawful prospective immigrant” visa:

To apply for the new visa, immigrants would have to pass a criminal background check, fill out an application, and pay fees to qualify for the proposed visa.  They would be disqualified if they were convicted of a crime that involved a sentence of at least one year, three or more crimes that resulted in 90 or more days in jail, or if they committed an offense abroad that if committed in the United States would make them inadmissible or removal from the United States.  

Immigrants in federal custody or facing deportation proceedings would be allowed to apply for the Lawful Prospective Immigrant visa.  

Other details:

In addition to providing lawful status to undocumented immigrants, the plan would also provide more border security funding and also expand the E-verify program to require business owners to check the immigration status of newly hired employees.  

White House Proposal Offers a Clearer Path to Citizenship that the Current Senate Proposal:

The White House plan offers a much clearer path to citizenship than the current Senate proposal.  The White House plan would place immigrants on the path to citizenship by allowing them to apply for a green card within 8 years after obtaining their provisional visa.  This is in sharp contrast to the Senators' proposed plan.  While the Senators' plan would provide people with a provisional visa, it would not allow people to apply for a green card and start on a path to citizenship until the border is deemed to be “secure.”  We have no idea when that will be or how we will decide when the border is secure.  As Hassan noted in the blawg on Monday, when reporters asked Senator McCain, one of the members of the Senate group, how we will know when the border is finally secure, he said, "I'll know it when I see it."  His response was no help to immigrants looking for a definite timeline for when they can apply for a green card.

If the Senators' proposal becomes law, and immigrants are forced to wait to apply for a green card without knowing when or even if they will ever be able to apply for one, immigration reform will fail.  It will fail because the uncertainty the Senators' plan contains will not provide the security immigrants need to become full participants in our society.  The plan will instead create a second tier society where immigrants with provisional visas will have different rights than the rest of Americans for a long, unknown period of time.  We don't want this.  

Instead, we want to see something along the lines of the White House plan, where immigrants can be sure that within a definite time-frame, within a certain number of years, they will be able to become permanent residents, and then citizens.  

Only when Congress passes a bill that provides a definite path to citizenship, free of amorphous requirements to “secure the border” first, only then will we achieve the Senators' and the Presidents' goal of fixing our broken immigration system and bringing undocumented immigrants into full participation in American society.
 
USA Today article which first reported the leaked plan:  
http://www.usatoday.com/story/news/nation/2013/02/16/obama-immigration-bill/1925017/.  

Carly Stadum-Liang, Esq.

I never understood this nonsense about "secure the borders first."  According to some lawmakers, there should be no path to citizenship (which really means no reform) until we know the border is secure.

I agree that border security is important.  I also agree that the border should be secured.  But how will we know when it is?  On January 28, 2013, McCain simply told reporters, "I'll know it when I see it." Come on.  

Second, as a practicing immigration lawyer - what seems to be missing from the secure-first crowd's argument is that securing the border - however you define it - is related to immigration reform.  Inextricably related.  You can't do one without the other.  In fact, you will secure the border by passing meaningful reform.  Here's how.

If reform is passed and people have a means to immigrate legally, most folks who would have paid a coyote at least $3000 per person (usually closer to $5000) to cross the border, risking getting shot by cartels and gang members, or dying of thirst or hunger, will certainly have much less an incentive to EWI (enter without inspection.)  That means less people crossing the border.  To the extent a "secure border" means stopping people from EWI-ing - that means it will be easier to make the border more secure.

What about folks who want to flout the law and enter illegally anyway?  The fact that the border is more secure means that the would-be lawbreakers will know that there is a much higher chance they will be caught.  That further chills illegal immigration, which makes the border that much more secure.

Trying to secure it first while we have a broken system is like trying to run up the down escalator.  You're going to expend countless resources chasing an illusory goal, working against the flow and moreover, you'll never really know when you're there.  

If the secure-the-border crowd was really serious about securing the border, they would come out enthusiastically for immigration reform.  

There must be something other reason they're not.

The I-751 joint petition is a form used by conditional permanent residents to "convert" their two-year green cards into 10 year green cards.  If the US citizen spouse and the alien are living together in marital harmony, and file in a timely fashion - the form is easy.  That's how it's supposed to work.

Complications arise when things aren't going well in the marriage, or the couple gets late in filing the petition, or both.  Over the years USCIS has come out with several policy memorandums instructing officers on what to do with cases that aren't so clean.

Happily, I-751 procedure keeps being improved and makes more and more sense and it easier to deal with.  It's always been the law that if an I-751 is filed late, it must be filed with an explanation.  If that explanation was missing, under older law the I-751 would be denied.  Or perhaps rejected.  Under a new I-751 memorandum that was just issued in January 2013, the officer can simply request the explanation separately by issuing a Request for Evidence (RFE).  A much more preferable option than losing the filing fees are perhaps finding yourself in removal proceedings.  Or having your case rejected and having to refile it after your green card has already expired.

Confusion also arises when the marriage is not doing so well.  If a divorce is imminent - but has not been filed, or has been filed but the hearing is months away - it is best to run your situation by a knowledgable lawyer.  Chances are he's seen your situation before.  And the consequences for not filing on time are pretty severe.  Risking denial of an I-751 basically means you're betting on getting put into removal proceedings.  It's hard for a lot of conditional permanent residents (CPR's) to accept, because their cases are so "clean" (to them) they do not appreciate that USCIS must put them in removal proceedings if their I-751 is denied, even on a technicality.

As far as what a good reason is to not file an I-751: In practice, USCIS does not make the burden onerous. Frequently some relatively minor issue comes up, distracts the party, and before they know it, the green card has expired.  Our job as lawyers is to probe, probe, and probe to find the reason(s) the case was not filed on time.

But an ounce of prevention is worth a pound of cure.  Take your I-751 obligations seriously.  Be picky about the evidence you choose.  Choose good evidence: nothing too weird or off-base.  And use a lawyer. If you're filing an I-751 you already have a lengthy immigration history in the US.  File wisely.

The last few weeks this same issue has come up with such frequency we thought it appropriate to share some insight on it.

You're a US citizen.  Your aging parents are back home in, say, India.  You know a lot of people in your circle of family and friends who sponsored their parents for a green card, and their parents come visit every year to "keep it."   Others actually do immigrate here.  But, common wisdom goes, at least they don't have to deal with applying for a visitor visa.  After all, these parents have children over 21 who are US citizens.  Why shouldn't they get the benefit of permanent residence, if they can?

Yes, they can.  But that does NOT mean they should.  As many unhappy clients come to figure out, over time, that green card turns from a blessing into a curse.

It's really rather simple.  If you have a green card, you are a permanent resident.  That means you reside in the United States permanently.  If you are basically living back home and having to come to the United States every year just to "keep your green card" then you are headed for trouble.

Yes, we know the stories of Uncle and Auntie who have been living in Hyderabad for 25 years and never had any problem using their green card to enter the United States.  Just because it seems so easy  for Uncle and Auntie does not mean it will be that easy for your parents.  And you should tell Uncle and Auntie that it won't always be easy for them, either.

When a permanent resident returns to the United States, their name is run through several federal databases.  Just because Uncle's passport was not stamped when he went through customs in New Delhi does not mean that the United States government does not know he was out of the United States. 

This is because nearly all carriers - airlines, cruise ships, trains and other vehicles report certain information to the federal government.  We once had a client who left the US on a cruise ship that docked on a Caribbean island for just a few hours, and the client reboarded the ship, showing a passport only as identification to the ship's security officers.  Several months later, the client's green card was denied, because USCIS knew that the client had left the United States before receiving advance parole.

So why do some people seem to not have a problem?  Possibly it is because the databases have not flagged that person...yet.  Or the officer does not notice, or decides (through their own discretion) to give the person the benefit of the doubt.  Or the airport is so busy they simply don't have the time.  It could be a number of reasons.  But it's a waste of time to wonder why.

What you need to know is that to keep a green card, at least 6 out of every 12 calendar months should be spent within the United States.  If you spend more than 12 months outside the US, the green card is deemed abandoned (unless you get a reentry permit.)  If you spend between 6 and 12 months outside the US, there is only a presumption of abandonment.  For several years, it might not be an issue because officers would not have clear proof of abandonment.  However, if the person stays outside the US, say, 8 to 9 months or more out of the year, and does that repeatedly for 5 or more years, then officers are going to get suspicious and flag the person for secondary inspection and ask them to prove they haven't abandoned their intent.

So: Less than 6 months out of the US: green card safe.  More than 12 months outside of the US: green card lost.  In between 6 and 12 months outside the US : gray area; green card may be safe at first, but as time passes, your risk of losing the green card becomes higher and higher.

It's all the more troublesome because in the initial years, nothing happens and so the returning green card holder gets a false sense of security.  Then, out of nowhere, they get led down the hallway and questioned for 3 hours, right after (usually) a long, tiring international flight.  And be forewarned: there is no right to have a lawyer with you at the border.

The main lesson here is: apply for the immigration benefit that fits your situation.  Just because you qualify for other benefits doesn't mean it's a good idea to apply for it.  You might think it's easier (and it might be, at least initially) but as several of our clients can attest, that green card turns into a real burden.

If the person is not going to live in the US, and not going to work, and just wants to be able to come and go with ease, and has all their property, job, wealth, and ties back home - then the appropriate visa category is B-1/B-2.  If they start spending more time in the US, then they can always file for permanent residence based on their US citizen son or daughter over the age of 21.  A consultation with a lawyer beforehand can save a lot of headache down the road.

And if you're in that small but noxious minority that filed for their aging parents' permanent residence just so they can claim benefits in the United States - know that you are abusing the system, and that the databases that store information on arrivals and departures is connected to the database that stores information on disbursement of federal (and state) benefits.  At some point, a computer will be able to tell whether a person is abusing the system when their green card is swiped at the border.

We've given this piece of advice many times: Do things legally, and you'll have to do a little more work at the beginning, but very easy and relaxing later.  Do things illegally, and it'll be easy at first, but not much fun later.  

Or at least, that's about as bumper-sticker short as I can make my point.

First,  a disclaimer: I am decidedly pro-immigration.  My background and profession play on each other, strengthening my resolve to fight for the rights of those who have come here from elsewhere.

As a lawyer who focuses much of my practice in matters of US immigration, I pay close attention to the words and labels used to frame arguments in the immigration debate.

Here is my list of labels that divide, obfuscate, and malign:

• Illegal immigrant/Illegals
• Criminal alien
• Anchor baby

Let's look at each one.

Illegal Immigrant.  There's currently a debate going on among journalists as to how to describe the population of people living in a country in violation of that country's immigration laws.  You've got folks on one end who call them "illegal immigrants" (or just plain "illegals.")  Others prefer "unauthorized immigrants" or "unauthorized workers." Still others prefer "undocumented workers." 

Technically (and legally) an "immigrant" is a person who is lawfully admitted for permanent residence.  That is, a lawful green card holder.  Since the vast majority of the population we're talking about do not have green cards, it's somewhat of a misnomer to even call them "immigrants." However, it's not realistic to expect people to understand the legal difference between immigrants and nonimmigrants as defined in the Immigration & Nationality Act.  Moreover, "immigrant" could also connote anyone who attempts to enter the United States with an intent to make the United States their permanent home (i.e., has "immigrant intent.")  Colloquially, though a bit inaccurate as a matter of law, the word "immigrant" denotes someone who comes into a country not his own.

The problem is with the word "illegal." As cliché as it sounds - a human being is never illegal (ningún ser humano es ilegal).  Actions can be legal or illegal.  We can speak of illegal immigration, but not illegal immigrants, any more than we can speak of driving illegally, but not illegal drivers.

But there is a deeper problem with labeling a person "illegal." It makes it sound unrectifiable.  We hear the refrain from the right many times: "What part of illegal don't you understand?" To which my response is, "You clearly do not understand what the word illegal means."  Calling a person illegal dehumanizes them.  That leads to arrogance, enmity, racism, exclusion, and if left unchecked, genocide.

Even worse is calling people simply "illegal" as if the simple act of walking across a border forever taints every action that person henceforth takes.  Very few of us would be "legal" if we adopt this understanding.  

Some argue that "undocumented" is a euphemism.  To a certain extent, this may be true, but only because its meaning has been subtly shifted by the pro-immigrant crowd.  Perhaps, then, the best term is "unauthorized" - a word that signifies that the law that was broken was a regulatory offense, and not something necessarily indicative of bad moral character.

Criminal Alien.  The problem with this term is that it is far too general.  Under our immigration law, a "criminal alien" is any alien who commits a crime.  However, that crime could be anything from a traffic offense to a trafficking offense.  It all depends on who is using the term.  Immigration & Customs Enforcement (ICE) invariably refuses to release any "criminal aliens" from custody, whether they are guilty of driving without a license or guilty of sexually abusing a minor.  Our criminal law differentiates between categories of crime, and recognizes that the word "crime" can cover mere regulatory offenses (such as speeding) all the way to the most heinous acts imaginable.

When we call an alien a "criminal alien" we use an overly general adjective to describe them.  And the word "criminal" is a very heavy word.  It makes the person marginalized, regardless the magnitude of his offense. Are we really certain we want to treat the father of four who drove to work without a license the same as the MS-13 gang member who raped a teenage girl?  Is it fair or accurate to call them both "criminal aliens?" 

If our criminal law distinguishes between violations, misdemeanors, and felonies, and our immigration law also distinguishes between different categories of crimes (albeit differently) then our discourse should, as well.  Criminal alien lumps people together who share few common characteristics, and thereby enables all of them to be seen as the same.  It's like assuming all Asians speak the same language.

Anchor Baby.  If people really knew how hard it would be for an unauthorized immigrant to secure legal status merely by having a child on US soil, they would abandon this silly term.  First of all, although a baby born on US soil is a US citizen, that US citizen cannot sponsor their parent until they turn 21 years of age.  Even then, the parent must obtain an immigrant visa from their home country, and cannot apply for it from within the US.  Once they leave, if they have spent more than 1 year in unlawful status in the US, they are further barred from re-entering the US for 10 additional years.  So it will take any parent at least 21 years, and possibly as much as 31 years, before they can obtain lawful status simply by having a child on US soil.  There's instant gratification, there's delayed gratification, and there's this.

To hear some people tell it, a toddler can fill out an I-130 petition for an alien relative and the parent can sit comfortably in the US and wait for their green card to come in the mail, all the while sucking up welfare, food stamps, and any other government money they can get their hands on.  Nothing could be further from the truth.  The law simply doesn't work this way.

Critics usually respond with a) some aliens can apply for cancellation of removal for non-permanent residents (COR) if they have US citizen children, b) pregnant mothers can get government benefits like WIC.

Neither of these responses justifies the use of the term "anchor baby." As far as  COR is concerned, see our Blawg post about how easy it is to obtain.  And as for short-term benefits - if a pregnant mother illegally crosses the border to obtain higher quality medical care or temporary government benefits, then it's incorrect to say she is coming for the purpose of having a US citizen child.  It is clearly an abuse of the system, but to call the child an "anchor baby" belies the purpose of the abuse, and therefore does little to solve the problem.  Instead, it creates a imaginary problem, which of course can have no solution.  Its only purpose is to malign and denigrate, create an underclass, and incite patterns of racial hatred and enmity.

We need to understand that labels are merely linguistic convenience, a shorthand to convey complex thoughts that resist succinct definition.  If we fail to appreciate the lexical limits of a label, we limit our own thinking.  And we become easily lured by those who create labels for their own political ends.

Look at the facts, and remember that there is always an exception to the rule.

No, you should not.  

Many of the deferred action (DACA) clients who've come to see us have expressed fear that if Obama loses the election in November, President Romney will revoke their deferred action work permits.

Many people are in fact waiting to file.

There is scarcely a month left before we will know who the next President of the United States is.  But if you haven't filed already, you might be throwing away a good opportunity.

On Monday, October 1, 2012 Republican presidential hopeful Governor Romney told The Denver Post that he would not revoke the deferred action work permits for those who had already received the benefits.  "The people who have received the special visa that the president has put in place, which is a two-year visa, should expect that the visa would continue to be valid. I'm not going to take something that they've purchased," said Governor Romney. "Before those visas have expired we will have the full immigration reform plan that I've proposed."

Update: 10/3/2012: Romney flip-flopped.  In an interview with The Boston Globe, the Romney campaign clarified that President Romney would honor deportation exemptions issued by the Obama administration before his inauguration but would not grant new ones after taking office.  Romney once again takes a shot at the DREAMers.

That means you have until January 20, 2013 to get your deferred action work permit.  It takes at least 3 months to get it.  That means you should file now.  If you wait, and Romney wins, and your case is still pending after he takes office, your case will be denied.

If Obama wins, few people are worried about the program.  If Romney wins, he will revoke DACA (deferred action.)  But he can only do so after he actually takes the oath of inauguration and becomes President, and only for people who have not actually received their deferred action decisions as of the date he becomes President.  That will not happen until January 20 next year.   

So if you qualify, you need to obtain it before Romney would be sworn in.  That means if you are eligible, you need to file.  And you need to file NOW. 

It is all the more important to get the right help, because if you don't, you might draw a nasty Request for Evidence, which will delay your case.  If Romney wins, and you haven't gotten your approval by January 20, 2013, you will lose out.

We continue to file dozens of DACA cases and are ready to advise you in your situation.  Call us or text us at (703) 964-0245 and visit our Deferred Action page.  We can quickly tell you not only whether you qualify, but what documents you need to get as quickly as possible so you can file.

As of September 11, 2012 the New York Times reports that 72,000 DACA (deferred action) applications have been received by USCIS.  And more good news: the first round of approvals is on its way!  That is much quicker than the 3 months (or longer) that many of us immigration lawyers were expecting.

We have prepared and are filing dozens of DACA applications.  In that time we've seen a number of issues that slow down the process: people have to save up money, they have to track down paperwork, finish school, or a number of other things before they can file.

A lot of people, however, are waiting to see what happens with the people that filed first.  Still others are waiting on the election, because of a belief that if Obama is re-elected in November, the program is safe, but if Obama loses, the program will be in danger because Romney has not yet supported it.

At the end of the day, this all illustrates one important point, one that we at the HMA Law Firm have told each and every one of our clients: Cada caso es diferente - every case is different.  I have seen a number of big mistakes people were about to make.  For example:

• One young man who entered the US on someone else's visa was told by a church official (who was helping do the cases for free) to file Form I-102 to request a copy of the "real" I-94 card.  This does not even make sense: how can you file for a duplicate copy of a fake document, and even if you could, why on earth would you want to?
• Another woman came in with Form I-821D completed by a volunteer and in response to the question "I entered the United States prior to June 15, 2007" had marked "No." The case would have been denied.
• Another young man wanted to file a case and had been told by "his community" to go ahead and try.  Unfortunately, he had two juvenile DUI's (driving under the influence of alcohol) which most likely would have barred him from approval. (Juvenile findings of deliquency are not "convictions" per se, and are treated on a case-by-case basis by USCIS, but given that only one adult DUI bars approval under DACA, two juvenile findings most likely would have, as well.)
• Another woman wasn't sure what she had marked on Form I-9 when applying for a job.  I explained to her it was a big mistake to file without knowing for sure, because if she had claimed to be a citizen, it could affect her future eligibility for status.

Some cases are simple, others are complex.  A lawyer can usually spot a lot of hidden issues that might come up.  The number 72,000 is encouraging, but given what we've seen, it's neither too high nor too low: it's what we expected because while there is a lot of interest, there is a lot of work involved in applying, as well.

We take a break from DACA to report some good news.

This morning, a hardworking man who'd been in the US, undocumented, since childhood, won special rule cancellation of removal under NACARA.

When his case originally went to trial, the previous lawyers were able to demonstrate all the requirements except one.  Under NACARA, if one has a clean criminal record, they only need to show that their removal would result in extreme hardship.  Moreover, the regulations presume hardship.  However, if there is a criminal conviction involving moral turpitude (a "CIMT") then the burden of proof goes up and the alien has to show exceptional and extremely unusual hardship.

Our client had an old petty larceny conviction from Virginia from the 1990's.  The records for such minor crimes are destroyed after 10 years.  And therein lay the problem: petty larceny is considered a CIMT, but there is an exception if it can be shown that less than 6 months of jail time was ordered.

With the record of conviction gone, there was no proof of the length of the sentence.  That meant there was no proof that the "petty offense" exception applied.  That meant there was a CIMT.  That meant the higher "exceptional and extremely unusual hardship" standad applied.  And our guy could not show that level of hardship.

His application was denied and he was ordered removed.  We filed an appeal with the Board, and obtained a letter from a criminal defense attorney in Virginia which opined that although possible, it is extremely unlikely for any jail sentence to be ordered for a first-time petty larceny conviction.

We argued that it is improper to require an alien to prove something, and also insist that only one form of proof (ie, the conviction record) is acceptable.  If an alien has to prove something (like the petty offense exception's applicability) then the judge should have considered any and all evidence.

The Board of Immigration Appeals agreed, rescinded the removal order, and sent the case back to the judge.  We told the judge that all issues in this case had been resolved except one.  That issue is now before you. If you believe the criminal defense attorney, then our guy has proven that the petty offense exception applies, and therefore standard cancellation of removal under NACARA applies, and hardship is presumed, and the application should be granted.  

The judge agreed, terminating proceedings and granting our guy his green card.  In doing so, he remarked it was the first time he had been given a direction by the Board to consider secondary evidence (like a criminal defense lawyer's opinion) of a conviction.