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Archive for the ‘Immigration’ Category

President Trump’s Partial Travel Ban Goes Into Effect: What You Need To Know

In Immigration, Uncategorized on July 17, 2017 at 3:13 PM

imagesPresident Trump seeks to place a 90-day ban on visas being issued to people from six, mainly Muslim countries: Iran, Libya, Somalia, Sudan, Syria and Yemen, and a 120-day ban on refugees entering the United States. Because of two nationwide federal court injunctions, President Trump’s previous two Executive Orders banning these individuals never went into effect. However, on June 26, 2017, the Supreme Court partially granted the government’s motion for a stay of the injunction by narrowing it so as not to apply to foreign nationals who have a credible claim to a “bona fide relationship” with a person or entity in the U.S; all other foreign nationals are subject to this most recent Executive Order (EO2). The Court, however, offered limited guidance on what qualifies as a “bona fide relationship.”

On June 28, 2017, the U.S. Department of State (DOS) provided further instructions on how the partial travel ban was to be enforced. Specifically, a bona fide relationship with a person was interpreted to be a “close family” relationship, defined as a parent, in-laws, spouse, child, adult child, son-in-law, daughter-in-law, and whole and half siblings. Grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law were not deemed to be “close family” relationships.

However, on July 13, 2017, Judge Derrick Watson of the U.S. District Court for the District of Hawaii ruled that the State Department’s definition of “close family” was too limited, and that as a result, the Trump administration did not follow the Supreme Court’s instructions in enforcing the temporary travel ban. Accordingly, grandparents and other extended relatives are now exempt from the travel ban. Judge Watson also ruled that refugees who have a relationship with a refugee aid agency in the U.S. are also now exempt.

A bona-fide relationship also includes a foreign national who wishes to enter the U.S. to live with or visit a family member, a student at a U.S. university, an employee of a U.S. company, or a lecturer invited to speak at a University. A qualifying relationship with a U.S. entity requires a relationship that is “formal, documented, and formed in the ordinary course, rather than for the purpose of evading the EO.” Individuals from the six previously mentioned countries that already have a valid visa on June 26, 2017 are also not affected by EO2. The ban also does not apply to Lawful Permanent Residents (“LPR”), Dual Nationals traveling on a non-banned passport, individuals traveling on an advance parole document or that have been granted asylum, as well as refugees already granted admission into the U.S.

Judge Watson had already enjoined two previous versions of the President’s travel ban from being enforced in response to a lawsuit by the state of Hawaii alleging the policy discriminates against Muslims. In his injunction, Judge Watson ruled that there was “significant and unrebutted evidence of religious animus” behind the ban. The Trump administration appealed his decision to the San Francisco-based Ninth U.S. Circuit Court of Appeals, which mostly upheld the injunction.  However, on July 14, 2017, U.S. Attorney General Jeff Sessions announced that the Trump administration will appeal the latest travel ban ruling to the U.S. Supreme Court, thereby bypassing the San Francisco-based appeals court that has ruled against it previously in the case.

On July 19th, the U.S. Supreme Court ruled that the Trump administration can still enforce the part of its travel ban that temporarily bans refugees from entering the U.S. However, Judge Watson’s Order on the expanded definition of close family ties was left intact by the Court.  As a result, grandparents, grandchildren, brothers-in-law, sisters-in-law, uncles, aunts, nieces, nephews and cousins of individuals living in the U.S are still exempt from the travel ban.  The Supreme Court will hear oral arguments on the travel ban in October after the justices return from their summer recess.

For further information on the travel ban please see the U.S. Department of Homeland Security’s FAQ page located at: https://www.dhs.gov/news/2017/06/29/frequently-asked-questions-protecting-nation-foreign-terrorist-entry-united-states.

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Tips for Ensuring Employer Compliance with I-9 The Immigration Reform and Control Act of 1986

In Immigration on February 2, 2016 at 1:42 PM

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The Immigration Reform and Control Act of 1986 (IRCA) makes it illegal for an employer to hire or continue to employ any person it knows is not authorized to work in the United States. This law applies to all employers, regardless of the number of employees. Under IRCA an employer has three basic obligations:

  1. See that the new employee completes Section 1 of Form I-9;
  2. Complete the employer’s section ( Section 2) of Form I-9;
  3. Physically examine the documentation presented by the employee that establishes their identity and eligibility for employment.

There are both civil and criminal consequences for violating IRCA. Moreover, a person who engages in a pattern of regular, repeated, and intentional violations of IRCA may be fined up to $3,000 for each unauthorized worker hired, or imprisoned for up to six months. Sometimes both of these penalties are imposed. A fine between $275 to $2,200 can be assessed against a first-time offender. Upon a second offense, the penalties range anywhere from $2,200 to $5,500. For a third-time offender, the fines range anywhere from $3,300 to $11,000. The employer may also be subject to a cease and desist order to stop hiring unauthorized workers. However, before any fines can be imposed by the government, there must be a finding that the employer knowingly hired an undocumented worker.

In cases of repeat offenders, the United States Attorney General can sue employers in federal court. In such instances, the Attorney General can prosecute for harboring, smuggling, concealing, and transportation of illegal aliens for financial gain those who repeatedly disregard the requirements of IRCA. Criminal convictions under these provisions can result in individual liability with a sentence of up to ten years in prison and/or $250,000 in fines per undocumented worker. In some instances, both penalties are assessed.

Under IRCA, the employer’s obligations to prevent the hiring and continued employment of unauthorized workers are clear. The commitment to compliance should be displayed in every office where applicants apply for positions. Further, the employer should require all consultants, independent contractors, vendors, and suppliers to certify their compliance with immigration laws.

Form I-9

Upon first inspection, Form I-9, the form used by the government to verify an employee’s eligibility to work in the United States, seems to be a relatively simple government form. However, looks can be deceiving. In fact, this single page form has so many governmental rules and regulations attached to it, it requires the use of a separate 69 page handbook in order to use the form properly. This book is known as the M-274 Handbook for Employers.

As a result of these numerous rules and regulations, there are many mistakes that can be made by employers when filling out and maintaining Form I-9 records. Moreover, an employer who fails to complete or maintain I-9 documentation according to the handbook can run afoul of United States Immigration and Customs Enforcement (ICE), and may incur civil and criminal liability, including severe financial penalties.

Three Day Rule

ICE rules stipulate that I-9 forms must be completed within three business days of the employee’s first day of work. This means that the employee must complete section one of the form, provide identification documents, and have those documents verified by the employer, all within three business days. Sometimes a new employee will forget to bring documentation within three days of hire. However, if an employer fails to meet the three-day deadline, it could result in hefty fines, so do not allow employees to begin working until the I-9 Form is complete.

It is important to note, however, that IRCA regulations do not require the employer to verify the authenticity of the documents. They only have to examine them to ensure that they reasonably appear to be genuine. Accordingly, under IRCA, an employer who makes a good faith effort to comply with these document verification requirements has a good faith defense that they have not violated the law.

In fact, under IRCA, an employer can even hire an employee prior to checking their employment eligability documents. However, the law does mandate that within three business days of the hire, the employer is required to physically examine the employee’s documentation to verify that the documents appear to be bona-fide and that they belong to the employee.

Penalties for Failure to Complete Form I-9

Failure to properly complete the I-9 Form can result in a fine of $110 to $1,100, per form. Additionally, ICE fines for late completion of Form I-9 range between $300 to $400 per form. A first violation of the knowing employment prohibition can result in a penalty of $275 to $2,200. For a second violation, penalties range between $2,200 to $5,500. Third violation penalties range from $3,300 to $11,000, and the employer is also at risk for criminal pattern or practice liability. The criteria considered in determining the size of the fine include: the size of the business, the good faith of the employer, the seriousness of the violation, whether the individual was an unauthorized alien, and the employer’s history of previous violations.

If an employer fails to obtain the right combination of identifying documents from lists A or lists B and C, then the I-9 documentation will be considered incomplete and the employer becomes subject to fines. If an employer obtains identification that is expired, that can also put them out of compliance.

Social Security Mismatch Letters

When names and social security numbers of employees do not match, the Social Security Administration (SSA) sends a letter to an employer—this is called a “mismatch letter.” ICE will take action against employers who ignore the SSA mismatch letter due to the fact that workers who show up on the SSA mismatch letter repeatedly are presumed to be in the country without work authorization.

Employers should give employees whose names show up on the mismatch letter written notice that they need to try to resolve their problem at the local SSA office. Let employees know that you might have to take further action if they appear on the mismatch list again. Employers should also consider using the free SSA online verification system to reduce the number of people on the SSA mismatch letter in the future.

I-9 Compliance Tips

  • Confirm that staff performing verification is properly trained. Original (not photocopies) of documents, except for a certified birth certificate, should be examined.
  •  Make photocopies of documents. Keep I-9 Forms in a separate file, not in personnel folders. By separating the I-9 files from other employment files, ICE will not be able to look at other documents which could raise other issues for audit.
  • Common I-9 documentation mistakes include incorrect dates, missing signatures, transposed information, and incomplete check boxes.
  • An employer asking for too many identifying documents from list A or lists B and C could expose the employer to discrimination allegations. An employee has the right to use any documents listed on the I-9 form to prove their work eligibility. An employer cannot mandate which forms of identification the employee must use.
  • Make sure to keep track of the expiration date on an employee’s work permit or other document establishing their right to work in the U.S. It is the employer’s responsibility to monitor that date and request new documentation from the employee prior to its expiration.

Self-Audit

Conduct periodic self-audits to confirm that the company has I-9 Forms for all current employees. If you are missing forms, obtain them as soon as possible. If you are missing forms for terminated employees, consider contacting them to obtain a form. Be sure to review the I-9 Form during an exit interview or before an employee is terminated.

During self-audits, examine I-9 Forms to ensure they are properly completed. Check that there is an actual street address, not just a P.O. Box number. If you have photocopies of documents employees presented, you can use them to obtain the missing information. If necessary, contact the employee to obtain the missing information. If the employee neglected to sign or date Section 1, ask the employee to do so. Use correct dates to the extent possible. If you add or revise information in Section 1 of the form, complete the Preparer/Translator certification. Also, consider adding “self-audit” next to any form corrections.

Purge I-9 Forms during self-audits. Follow the retention rule: three years from date of hire and one year from date of termination. When you meet both tests, throw out the form. It’s important to note that if an employer is audited, and has not destroyed outdated I-9 documentation, any errors found on those outdated forms will also be subject to fines.

For assistance with I-9 compliance or other labor and employment or immigration law matters, contact the attorneys at Bustos Law Firm, P.C. at (806) 780-3976.

Special Immigrant Juvenile Status

In Immigration on July 15, 2014 at 3:46 PM

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Recent actions of the Obama administration in the last two years had the effect of encouraging the parents of tens of thousands of minors to send their children across the United States’ borders illegally. There is great debate about how to stop this flow of illegal immigration, and what to do with those minors now present in the United States. These unaccompanied juveniles, many of whom have been either orphaned, abandoned, suffered domestic violence, or even have been the targets of gang violence or organized crime, are especially vulnerable. Most of these children are also ineligible to receive assistance from their countries of origin, and thus have been sent to the United States for greener pastures, where instead many of them end up being apprehended by local law enforcement or Immigration Customs Enforcement (ICE) who holds them with an immigration detainer in anticipation of removal (deportation) proceedings.

This is a process for these same juveniles who have been neglected, abused, or abandoned by their parents to potentially obtain Permanent Resident status (obtaining a “green card”) through a federal law known as Special Immigrant Juvenile Status (SIJS) wherein the Immigration and Nationality Act (INA) § 203(b)(4) allocates a percentage of immigrant visas to individuals considered “special immigrant juveniles.” This is indeed a relatively quick route to a green card for children who qualify, however, the process IS very complicated and should be done with the assistance of an immigration experienced attorney.

Because the application process must be started while the child is still a juvenile, or minor under state law (18 in most jurisdictions), it is important for people such as teachers, counselors and other people who regularly work with youth to identify potential youth who may qualify for this status, before they reach an age where they are too old to benefit from this special law.

STEP ONE: STATE COURT FINDING OF NEGLECT, ABUSE, OR ABANDONMENT.

A child is eligible for SIJS only if a court in the state where he lives finds the child to be neglected, abused, or abandoned by one of both parents, and that it is not in the child’s best interest to return to his or her home country. The court must either make the child a ward of the state (court dependent) or place the child in the custody of a guardian, state agency, or family member dependent on a juvenile, family, a similar state court or other institution. Court terms, procedures, and legal standards will vary from state to state, as well as which kinds of courts can make such a determination. Also, the legal standard for abuse, neglect, or abandonment is a question of state law and thus differs from state to state. This is just one of many reasons why it is imperative to find an experienced immigration attorney to assist in this process.

STEP TWO: PETITON FOR SPECIAL IMMIGRANT JUVENILE STATUS.

Once a court has found that the child, who is not in removal proceedings, was either abused, neglected, or abandoned, and that it is not in his or her best interest to return to his or her home country, the child may file Form I-360 ( Petition for Ameraisian, Widow(er), or Special Immigrant) with USCIS requesting Special Immigrant Juvenile Status. It is also important to note that the child must file the petition while the court order is still in effect. In many cases, this means that the child must file the petition before turning 18 years old.

USCIS will review the I-360 and the other evidence to determine whether the child qualifies for Special Immigrant Juvenile Status. If USCIS believes that more evidence is needed, it may issue a “request for evidence.” The officer reviewing the file should accept the findings of the judge as to whether the child was abused, neglected, or abandoned. However, the officer may decline to grant SIJS status based on a belief that the court order was obtained only for the purpose of immigration. USCIS is required to make a decision on the petition within 180 days from the time it was submitted.

STEP THREE: APPLICATION FOR PERMANENT RESIDENCY.

Once the juvenile has an approved I-360, they can proceed with an Adjustment of Status application. The Form I-485 (Application to Register Permanent Residence or Adjust Status) may be submitted at the same time as the I-360 Petition, if it is ready at the time. However, USCIS will not make a decision on the I-485 unless and until it grants Special Immigrant Juvenile Status to the child.

Special Immigrant Juveniles may also ask USCIS to waive the application fee. This is done by using form I-912, Request for Fee Waiver. Otherwise, the green card process is similar to the process for family-based adjustment of status cases.

Once the Form I-485 is filed, the juvenile may also apply for employment authorization pursuant to the pending adjustment of status application. Juveniles who adjust status as a result of an SIJ classification enjoy all benefits of lawful permanent residence, including eligibility to naturalize after five years. However, they may not seek to confer an immigration benefit to their natural or prior adoptive parents under this law.

New Provisional Waiver Rule to Ensure Family Unity Goes Into Effect

In Immigration on June 4, 2013 at 3:31 PM

imagesAs of March 4, 2013, green card seekers who are not eligible to adjust status within the U.S., and face significant waits abroad due to their unlawful presence, now have another option: applying for a provisional waiver of unlawful presence, or the “stateside” waiver.

The “Provisional Unlawful Presence Waiver of Inadmissibility for Certain Immediate Relatives” rule, often referred to as the new family unity rule, allows immediate relatives  of U.S. citizens, who entered the country without permission, to apply for a waiver of their unlawful entry, while still in the United States.  DHS initially proposed the change in procedure last April, as a solution to a growing problem—families were facing months, and in some cases, years of separation because of two conflicting provisions in U.S. immigration law.

BACKGROUND – Everyone who applies for a visa or green card is first checked to see whether he or she is “admissible” to the United States if they wish to have their case decided in the U.S.  One of the grounds of inadmissibility is unlawful presence in the United States of 180 days or more, but there are several others (including medical history and criminal convictions). Thus, if someone entered the country unlawfully they are deemed inadmissible and the law requires them to go to a U.S. embassy or consulate abroad for processing of their visa application, and to get a waiver for their unlawful presence, before they can return to the United States.

People are deemed inadmissible if they are “unlawfully present” in the U.S. for six months after April 1, 1997, subsequently leave the U.S., and then seek admission by applying for an immigrant or nonimmigrant visa from abroad. Such persons are subject to a three year bar to re-entering the country, which requires the unlawful presence waiver, before they can return to the U.S. The bar to reentering the country is ten years if they were unlawfully present for one year or more after April 1, 1997.

Under past practice, an individual applied for their unlawful presence waiver with U.S. Citizenship and Immigration Services (USCIS), only after having been found inadmissible by a consular official abroad.  This process was generally time consuming, inefficient, and often costly, particularly because it lengthened the amount of time families were apart by several months, and even years, while USCIS made a decision on the waiver — and, of course, sometimes those waivers were not approved at all, and people become permanently separated from their families in the United States. As a result, many couples who need this waiver have chosen to lay low in the United States, rather than go through the waiver process abroad and risk facing the ten year ban.

NEW PROCESS – Under the new provisional waiver process, eligible immigrants will now be able to apply for their waivers in the United States (but only as to certain unlawful presence inadmissibility grounds), and if approved, they will receive their waiver before leaving the United States. Having the waiver in hand, before leaving the United States, will allow immigrants to depart the United States for the green card process, knowing they will almost certainly be allowed to return home to the United States to be with their families. And, in other good news, USCIS is also seeking to cut down on the amount of time immigrants will have to wait abroad to pick up their green card….from the current wait time of several months, to a much more manageable wait time of about two weeks.

Immigrants with multiple grounds of inadmissibility CANNOT apply for the provisional stateside waiver using Form I-601A, and must instead apply for a waiver outside the U.S. using Form I-601. If you ignore this rule and apply anyway, you risk at a minimum losing your application fee – and in a serious enough situation, might risk enforcement activities being started against you. If you think you might be found inadmissible not only because of your unlawful presence in the U.S., but also due to multiple criminal convictions, or for another reason, you should consult with an immigration attorney before submitting your visa and waiver applications.

ELIGIBILITY – In order to be eligible to apply for the new provisional waiver, the applicant must be:

  • An immediate relative of a U.S. Citizen (spouse, child, parent);
    The beneficiary of an approved immediate relative petition ( Form I-130);
    17 years of age, or older;
  • Upon departure from the U.S. – be subject to the unlawful presence ground of inadmissibility only. (If additional waivers for other grounds of inadmissibility are required, the applicant will not be eligible to use the provisional waiver process);
  • Present in the U.S. at the time of filing the application for the provisional waiver and for biometrics collection at a USCIS Application Support Center;
  • Has a case pending with the Department of State (DOS), based on an approved immediate relative petition, and has paid the immigrant visa processing fee; and
  • Show extreme hardship to their U.S. citizen spouse or parent, if the applicant cannot return to the United States, or if they have to relocate outside the U.S. to be with the applicant.“Extreme hardship” is vaguely defined as greater than the normal hardship a qualifying relative can be expected to experience if the immigrant is denied admission. It is important to prove BOTH why the qualifying relative cannot move abroad, AND why the qualifying relative cannot simply live in the US without the Alien. It is not enough to merely assert that the qualifying relative will miss the immigrant’s company, as this is considered a “normal” hardship, not extreme hardship.

Arguments for Extreme Hardship in the United States

Some of the more common arguments for extreme hardship when your relative remains in the United States include, but are not limited to:

  • Your relative has a medical condition and depends on you for care.
  • Your relative is financially dependent on you and you will not be able to provide adequate support from abroad.
  • Your relative has financial debts in the United States and cannot pay them without your support.
  • Your relative has a sick family member and will be unable to care for that person without your support.
  • You are the caregiver for your relative’s children and he or she cannot afford childcare in your absence.
  • Your relative is experiencing clinical depression as a result of your immigration situation.

 Arguments for Extreme Hardship Abroad

Some of the more common arguments for extreme hardship when your relative accompanies you to your home country include, but are not limited to:

  • Your home country is in or on the verge of war and/or political upheaval.
  • Your relative has a serious medical condition that cannot be adequately treated in your home country.
  • Your relative will be discriminated against in your home country.
  • Your relative does not know the language of your home country.
  • Your relative is a primary caretaker for a sick family member in the United States.
  • Your relative will be unable to secure gainful employment in your home country.
  • Your relative’s educational progress will come to a halt.
  • Your relative has children from a previous relationship who will not be allowed to live or visit your home country due to custody issues.
  • Your home country has a high rate of violence.
  • Your relative has financial debt in the United States that cannot be paid from your home country.

In addition to these eligibility requirements, the Department of State must also not have acted to schedule the immigrant visa interview for the applicant before January 3, 2013, the publication date of the final rule in the Federal Register. Those ineligible to file under this rule, however, may still be able to file a provisional waiver if, for example, a new I-130 relative petition is filed with USCIS by a different petitioner on their behalf.

Be Careful About Applying If You Cannot Prove “Extreme Hardship”

The provisional waiver is a great step forward in reducing the time burden that many U.S. citizens face before their qualifying relatives can receive green cards. However, it will not provide lawful status, employment authorization, protection from deportation, or the automatic approval of a green card. For that reason, you should check to make sure you meet all the requirements before you spend the time and money necessary to apply for the new stateside waiver only to possibly have it denied.

The only difference between the original application for a waiver of inadmissibility (using Form I-601), and the new provisional waiver is that you will receive a decision before you need to leave the United States for your interview at a consulate abroad. However, just like with an I-601 waiver, you will still need to submit a considerable amount of evidence to prove that a waiver should be granted due to the “extreme hardship” that your U.S. citizen spouse or parent would face if your case is denied. An immigration attorney can help you to assemble a convincing application package for USCIS, but if you doubt that you can prove extreme hardship, you may want to hold off providing personal information to USCIS until you have the necessary evidence.

How Many Waivers Does USCIS Typically Approve?

In Fiscal Year 2012, USCIS denied 34%, or about one out of every three, I-601 waivers.   Many of those denials were by applicants who prepared their applications on their own or used the services of a notario or an immigration “consultant.”  Considering the stakes at hand, this is not a very wise course of action, and you should seriously consider hiring an experienced immigration attorney to shepherd you through the provisional waiver process. Also, persons who have recently married are usually well-advised not to submit waivers. However, their chances of approval rise markedly after they have children and a house, especially if the breadwinner would be forced to remain at home to care for any children.

What Are the Risks of Applying for the Provisional Waiver?

Some immigrants have been skeptical of this rule change and many wonder whether they should provide their names and addresses to U.S. Citizenship and Immigration Services (USCIS) and admit to living in the U.S. without lawful status. However, in most cases, the potential benefit of obtaining a green card without waiting outside the U.S. for several years outweighs the risks of applying.

You may be worried that your personal information will be used by USCIS in order to place you into detention, or in removal proceedings in Immigration Court, if your application is denied. In most cases, this is improbable, but it is not impossible. If your case merely involves unlawful presence in the U.S., it is unlikely that the information you submit to USCIS will be used against you in this way.

USCIS has also stated that it will not share information submitted on Form I-601A with Immigration and Customs Enforcement (ICE), the agency tasked with apprehending violators of immigration law, unless it involves an individual with a criminal history or fraud violations, or one who poses a threat to national security or public safety. But be aware that USCIS may change this policy at any time due to an administration change, or after a significant event. For example, more cases than ever were referred to ICE after the terrorist attacks of September 11, 2001.

You  should take an honest look at your situation to determine whether your background might raise flags and eventually cause you to be detained or deported. Have you ever provided false information on a government application? Do you have multiple criminal convictions or a history of gang association? Have you been a member of a group that has been linked to terrorist activities? If so, you should consult with an experienced immigration attorney who can advise you on your best course of action before you submit your information to USCIS.

What Happens if My Wavier is Denied?

Waivers that are denied will be subject to USCIS guidance and law enforcement priorities for issuing Notices to Appear (NTA) in immigration court, anyone else who is denied an I-601 waiver will have the choice to either abandon the process (while still remaining in the United States) or appeal the denial — while staying in the United States for the two or three years that it typically takes to adjudicate the appeal.

Of course, the I-601 waiver does not guarantee admission into the United States. The U.S. Consulate, after the initial consular interview, can always discover new grounds of inadmissibility, which may, or may not,  have an applicable waiver to cure the specific ground of inadmissibility.

The bottom line is that those who abandon the waiver process, or who have their waiver appeals denied, if not priority cases for ICE, will be back to square one—undocumented and married to U.S. Citizens. But at least they will be with their families in the United States, rather than separated from them, or forced to move under duress.

FILING FEE – The filing fee is $585 for the I-601A provisional waiver form.

Obama Administration Implements Common Sense Change in Immigration Law

In Immigration on January 14, 2013 at 5:10 PM

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After months of waiting, the final rule on the provisional waiver was published in the Federal Register last week on January 3, 2013, and it will become effective on March 4, 2013. The “Provisional Unlawful Presence Waiver of Inadmissibility for Certain Immediate Relatives” rule, often referred to as the new family unity rule, allows immediate relatives  of U.S. citizens, who entered the country without permission, to apply for a waiver of their unlawful entry while still in the United States.  DHS initially proposed the change in procedure last April, as a solution to a growing problem—families were facing months, and in some cases, years of separation because of two conflicting provisions of U.S. immigration law.

BACKGROUND – Under the Immigration and Nationality Act (INA), a person seeking to get a green card must first be admitted or paroled into the country, if they wish to have their case decided in the U.S. If they entered the country unlawfully, however, they are deemed inadmissible and the law requires them to go to a U.S. embassy or consulate abroad for processing of their visa application, and to get a waiver for their unlawful presence, before they can return to the United States.

People are deemed inadmissible if they are “unlawfully present” in the U.S. for six months after April 1, 1997, subsequently leave the U.S., and then seek admission by applying for an immigrant or nonimmigrant visa from abroad. Such persons are subject to a three year bar to re-entering the country, which requires the unlawful presence waiver, before they can return to the U.S. The bar to reentering the country is ten years if they were unlawfully present for one year or more after April 1, 1997.

Under past practice, an individual applied for their unlawful presence waiver with U.S. Citizenship and Immigration Services (USCIS), only after having been found inadmissible by a consular official abroad.  This process was generally time consuming, inefficient, and often costly, particularly because it lengthened the amount of time families were apart by several months, and even years, while USCIS made a decision on the waiver — and, of course, sometimes these waivers are not approved at all, and people become permanently separated from their families in the United States. As a result, many couples who need this waiver have chosen to lay low in the United States, rather than go through the waiver process abroad and risk facing the ten year ban.

NEW PROCESS – Under the new provisional waiver process, eligible immigrants will now be able to apply for their waivers in the United States (only as to certain unlawful presence inadmissibility grounds), and if approved, they will receive their waiver before leaving the United States. Having the waiver in hand, before leaving the United States, will allow immigrants to depart the United States for the green card process, knowing they will almost certainly be allowed to return home to the United States to be with their families. In other good news, USCIS is also seeking to cut down on the amount of time immigrants will have to wait abroad to pick up their green card….from the current wait time of several months, to a much more manageable wait time of about two weeks.

ELIGIBILITY – In order to be eligible to apply for the new provisional waiver, the applicant must be:

  • An immediate relative of a U.S. Citizen (spouse, child, parent);
    The beneficiary of an approved immediate relative petition ( Form I-130);
    17 years of age, or older;
  • Upon departure from the U.S. – will be subject to the unlawful presence ground of inadmissibility only. (If additional waivers for other grounds of inadmissibility are required, the applicant will not be eligible to use the provisional waiver process);
  • Present in the U.S. at the time of filing the application for the provisional waiver and for biometrics collection at a USCIS Application Support Center;
  • Has a case pending with the Department of State (DOS), based on the approved immediate relative petition, and has paid the immigrant visa processing fee; and
  • Show extreme hardship to their U.S. citizen spouse or parent, if the applicant cannot return to the United States, or if they have to relocate outside the U.S. to be with the applicant.“Extreme hardship” is vaguely defined as greater than the normal hardship a qualifying relative can be expected to experience if the immigrant is denied admission. It is important to prove BOTH why the qualifying relative cannot move abroad AND why the qualifying relative cannot simply live in the US without the Alien. It is not enough to merely assert that the qualifying relative will miss the immigrant’s company, as this is considered a “normal” hardship, not extreme hardship.

Arguments for Extreme Hardship in the United States

Some of the more common arguments for extreme hardship when your relative remains in the United States include, but are not limited to:

  • Your relative has a medical condition and depends on you for care.
  • Your relative is financially dependent on you and you will not be able to provide adequate support from abroad.
  • Your relative has financial debts in the United States and cannot pay them without your support.
  • Your relative has a sick family member and will be unable to care for that person without your support.
  • You are the caregiver for your relative’s children and he or she cannot afford childcare in your absence.
  • Your relative is experiencing clinical depression as a result of your immigration situation.

 Arguments for Extreme Hardship Abroad

Some of the more common arguments for extreme hardship when your relative accompanies you to your home country include, but are not limited to:

  • Your home country is in or on the verge of war and/or political upheaval.
  • Your relative has a serious medical condition that cannot be adequately treated in your home country.
  • Your relative will be discriminated against in your home country.
  • Your relative does not know the language of your home country.
  • Your relative is a primary caretaker for a sick family member in the United States.
  • Your relative will be unable to secure gainful employment in your home country.
  • Your relative’s educational progress will come to a halt.
  • Your relative has children from a previous relationship who will not be allowed to live or visit your home country due to custody issues.
  • Your home country has a high rate of violence.
  • Your relative has financial debt in the United States that cannot be paid from your home country.

In addition to these eligibility requirements, the Department of State must also not have acted to schedule the immigrant visa interview for the applicant before the publication of date of the final rule in the Federal Register, January 3, 2013. Those ineligible to file under this rule, however, may still be able to file a provisional waiver if, for example, a new I-130 relative petition is filed with USCIS by a different petitioner on their behalf.

How Many Waivers Does USCIS Typically Approve?

In Fiscal Year 2011, USCIS received 23,262 I-601 waiver applications, and approved 17,790 of them…. roughly a 76 percent approval rate. According to USCIS, however, the approval rate in Ciudad Juarez, Mexico last year was even higher….closer to 90 percent.

What Happens if My Wavier is Denied?

Individuals whose waivers are denied will be subject to USCIS guidance and law enforcement priorities for issuing Notices to Appear (NTA) in immigration court.  For example, convicted criminals, public safety threats, and those suspected of fraud, among others, will receive NTAs to appear in Immigration Court for removal proceedings.

However, anyone else who is denied an I-601 waiver will have the choice to either abandon the process (while still remaining in the United States) or appeal the denial — while staying in the United States for the two or three years it typically takes to adjudicate the appeal.

Of course, the I-601 waiver does not guarantee admission into the United States, as the U.S. Consulate can always, after the initial consular interview, discover new grounds of inadmissibility, which may not have an applicable waiver to cure the specific ground of inadmissibility.

The bottom line is that those who abandon the waiver process, or who have their waiver appeals denied, if not priority cases for ICE, will be back to square one—undocumented and married to U.S. Citizens. But at least they will be with their families in the United States, rather than separated from them, or forced to move under duress.

EFFECTIVE DATE – The new process will become effective on March 4, 2013. The filing fee is $585 for the I-601A provisional waiver form. No filings will be accepted by USCIS before this date. The projected processing time for the waivers will be approximately four months.

Please see here for the final rule: http://tinyurl.com/as4fld8.

Deferred Action for Childhood Arrivals-FAQ

In Immigration on August 17, 2012 at 1:02 PM


On August 15th, 2012, U.S. Citizenship and Immigration Services (USCIS) began accepting requests for consideration of deferred action for childhood arrivals.

What is Deferred Action? 

Deferred action is a discretionary determination to defer removal action of an individual, via an act of prosecutorial discretion. If granted, it will allow young people, brought to the United States as young children, through no fault of their own, the chance to work, study, and live in the U.S. without fear of deportation. The deferred action program is intended to help streamline enforcement of federal immigration laws by focusing limited immigration enforcement resources on removing undocumented immigrants who have been convicted of crimes, or who are considered to be a risk to national security.

Deferred action is not amnesty or immunity. It does not confer lawful immigration status upon an individual.Only the Congress, acting through its legislative authority, can confer such rights. As such, it is important to note that the deferred action program is not an executive order with the full force of law; accordingly, the decision to grant certain young people deferred action can be changed or reversed in the future.

How Do I Know If I Am Eligible for Deferred Action?

You are eligible to request deferred action if you:

  • Were under the age of 31, as of June 15, 2012;
  • Came to the United States before reaching your 16th birthday;
  • Are at least 15 years of age at the time of filing;
  • Up until to the present time, have continuously resided in the United States since June 15, 2007, other than for brief innocent departures;
  • Were physically present in the United States on June 15, 2012, as well as at the time you  make your deferred action request with USCIS;
  • Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
  • Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  • Have not been convicted of a felony, significant misdemeanor such as a single DUI, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

 What Benefits Will I Be Entitled to Under the Deferred Action Program?

 An individual who has been granted deferred action is eligible to receive an Employment Authorization Document (EAD) in two year increments for the period of deferred action. At the expiration of the two year period, the grant of deferred action can be renewed, pending a review of the individual case. If an individual applies for and receives an extension of the period for which they were granted deferred action, they must subsequently request an extension of their employment authorization.

In Texas, and in many other states, the Employment Authorization Document (EAD) should also allow a deferred action beneficiary to obtain a drivers license.   

Undocumented immigrants who are granted deferred action will also not accrue unlawful presence in the U.S. during the period that the deferred action is in effect. However, it will not absolve these individuals of any previous or subsequent periods of unlawful presence.

Immediate relatives of qualified applicants however will not be considered for deferred action unless they independently satisfy the guidelines.

What Fees Are Required by USCIS to Apply for Deferred Action?  

The total fees payable to USCIS to apply for deferred action will be $465. This represents the standard $ 85.00 fee for biometrics and the standard $380.00 fee for the Employment Authorization Document.

How Do I Prove to USCIS That I Am Entitled to Deferred Action?

 You can start by gathering documents that demonstrate:

1. You came to the United States before the age of 16;

2.  You have continuously resided in the United States for at least five years preceding June 15, 2012;

3.  You were physically present in the United States as of June 15, 2012;

4. Your identification, such as a passport, birth certificate accompanied by photo identification;

5.     You are either in school, graduated from high school, or have obtained a GED.  This includes, but is not limited to: A GED certificate, a high school diploma, report cards, and school transcripts.

Documents that will establish the foregoing, include, but are not limited to: financial records (lease agreements, phone bills, credit card bills, etc), medical records, school records, such as transcripts and diplomas, employment records, and military records.

Affidavits generally will not be sufficient on their own to demonstrate that you meet the guidelines for USCIS to consider you for deferred action for childhood arrivals. However, Department of Homeland Security ( DHS) has indicated that in some instances, multiple sworn affidavits, signed by a third party under penalty of perjury, can also be used to support meeting the following guidelines, but only if the documentary evidence available is insufficient or lacking:

  • A gap in the documentation demonstrating that you meet the five year continuous residence requirement; and
  • A shortcoming in documentation with respect to the brief, casual and innocent departures during the five years of required continuous presence.

USCIS will not accept affidavits as proof of satisfying the following guidelines:

  • You are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a GED, or are an honorably discharged veteran from the Coast Guard or Armed Forces of the United States;
  • You were physically present in the United States on June 15, 2012;
  • You came to the United States before reaching your 16th birthday;
  • You were under the age of 31 on June 15, 2012; and
  • Your criminal history, if applicable.

Will USCIS consider circumstantial evidence that I have met certain guidelines?

If available documentary evidence is insufficient or lacking, circumstantial evidence may be used to establish the following guidelines and facts:

  • You were physically present in the United States on June 15, 2012;
  • You came to the United States before reaching your 16th birthday;
  • You satisfy the five year continuous residence requirement, as long as you present direct evidence of your continued residence in the United States for a portion of the required five-year period and the circumstantial evidence is used only to fill in gaps in the length of continuous residence demonstrated by the direct evidence; and
  • Any travel outside the United States during the five years of required continuous presence was brief, casual, and innocent.

However, USCIS will not accept circumstantial evidence as proof of any of the following guidelines or facts:

  • You were under the age of 31 on June 15, 2012; and
  • You are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a General Education Development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States.

For example, if you do not have documentary proof of your presence in the United States on June 15, 2012, you may nevertheless be able to satisfy the guideline circumstantially by submitting credible documentary evidence that you were present in the United States shortly before and shortly after June 15, 2012, which under the facts presented, may give rise to an inference of your presence on June 15, 2012 as well. However, circumstantial evidence will not be accepted to establish that you have graduated high school. You must submit direct documentary evidence to satisfy that you meet this particular guideline.

How Do I Apply for Deferred Action?  

You will be required to submit your request for consideration of deferred action to USCIS through form I-821D, Consideration of Deferred Action for Childhood Arrivals. You will also have to apply for employment authorization on forms I-765 and I-765WS.  It is important to note that in order to receive employment authorization, you must demonstrate “an economic necessity for employment.”

Am I Allowed to Travel Outside the U.S. While I Apply for Deferred Action?

If you travel outside of the U.S. after August 15, 2012, you will not be eligible for deferred action.  However, if USCIS approves your request for deferred action, you can travel outside of the U.S., if you apply for and receive advance parole from USCIS. Advance parole allows you to leave the U.S. for humanitarian, employment, and educational reasons.

Will I Have to Undergo a Background Check As Part of My Deferred Action Request?

All individuals applying for deferred action will have to submit to biographic and biometric checks. These checks involve comparing the biographic and biometric information that you provide against a variety of information databases kept by the federal government.

 Am I Still Eligible for Deferred Action if I Have a Criminal Record?

It depends. A laundry list of various crimes will disqualify potential beneficiaries from benefits under the deferred action program, including, but not limited to:

  •  A felony conviction;
  • A single DUI;
  • Three or more unrelated misdemeanor convictions;
  • A single “significant misdemeanor” conviction. This includes crimes involving violence such as threats, assault and domestic violence; sexual abuse or exploitation; burglary, larceny, or fraud; obstruction of justice or bribery; unlawful flight from arrest, prosecution, or the scene of an accident; unlawful possession or use of a firearm; drug distribution or trafficking; and unlawful possession of drugs;
  • Simple traffic offenses will not disqualify an applicant.

If you have ever been arrested, you should also request a copy of your criminal history from your state or the FBI.

 Is Deferred Action Available if I Am Already in Removal Proceedings or if I Am Already Under an Order of Voluntary Departure?

The deferred action policy is available to persons who are in, or have been in removal proceedings, as well as persons with a final removal or voluntary departure order, even if they are under fifteen years of age.

Specifically, three categories of individuals are affected:

  • Persons currently in removal proceedings may have those proceedings terminated;
  • Persons with a final removal order can also apply for deferred action with USCIS as soon as the agency begins accepting applications;
  • Persons whose departure period has not yet expired can have their cases re-opened for purposes of termination and a grant of deferred action.

If you are in one of these three categories, you should take immediate action to make sure that you are not removed from the U.S.

If My Deferred Action Application is Denied, Can I Appeal the Decision?

You cannot an appeal or submit a motion to reopen/reconsider if your application is denied.  However, the memo is silent about whether you can reapply for deferred action if your initial application is denied.

In extremely limited situations, you can request a review of the denial.

Will the Information I supply USCIS for My Deferred Action Application be Kept Confidential?

According to USCIS, information provide in a request for deferred action, including information about family members and guardians, will not be shared with ICE and U.S. Customs and Border Protection (CBP) for the purpose of removal (deportation) proceedings unless USCIS finds that you are a threat to national security, have committed fraud in the deferred action application, or have been convicted of a criminal offense. However, the information in your request may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than deportation, including to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense.

If My Deferred Action Application is Denied, Will I be Placed in Deportation Proceedings?

It is against USCIS policy to refer cases to ICE where there is no evidence of fraud, a criminal offense, or a threat to public safety or national security, unless there are exceptional circumstances. However, before you apply, it is important that you first consult with a qualified immigration practitioner if you have ever been arrested or convicted of any kind of crime.

What Should I Do Now to Get Ready to Apply for Deferred Action?

We are recommending that individuals who are, or who think they may be eligible for the deferred action program do the following to prepare to file their application for deferred action:

  • Review their immigration history with a qualified immigration attorney to verify that they are indeed eligible for deferred action;
  • Review their family’s immigration history to see who else in their family might be eligible for deferred action;
  • Get the required supporting documents in order for submission to USCIS;
  • If applicable, request a copy of your criminal history from your state or the FBI;
  • Set aside sufficient funds to cover the required USCIS fees.

President Obama Offers ‘Deferred Action’ To Young Undocumented Immigrants

In Immigration on July 19, 2012 at 8:27 AM

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On June 15th, 2012, Department of Homeland Security (DHS) Secretary Janet Napolitano announced that effective immediately, young people brought to the United States through no fault of their own as young children will be considered for ’deferred action’ from removal proceedings. This will allow beneficiaries thereof to affirmatively apply for the chance to work, study, and live in the U.S. without fear of deportation…provided they meet certain key criteria.

The Obama administration, which has already deported more undocumented immigrants than any administration in U.S. history, has attempted to focus its deportation (removal) efforts on those who pose a danger to national security, are a risk to public safety, or who have serious or multiple criminal convictions. The recently announced deferred action program is an extension of the administration’s policy of focusing on removing undocumented immigrants convicted of crimes.

“Over the past three years, the administration has undertaken an unprecedented effort to transform our nation’s immigration enforcement system into one that focuses on public safety, border security, and on the integrity of the immigration system,” Napolitano said.

Since the new policy was announced last month, our office has received numerous phone calls from young people wondering if they are eligible for the program. And, while we do know the basic eligibility criteria of the program, like everyone else, we are still awaiting further details on the program from the United States Citizenship and Immigration Services (USCIS).  Secretary Napolitano has given USCIS until August 14, 2012, to come up with the specific details for administering the program.

What is Deferred Action? Is it a Form of Amnesty?

First of all, it’s important to note that deferred action does not confer lawful immigration status upon an individual.

Secretary Napolitano was quick to point out that deferred action, which will initially be for a period of two years, will “not provide permanent lawful status or start them on a pathway to citizenship,” and “is well within the framework of our existing laws.”

“This grant of deferred action is not immunity. It is not amnesty,” she said. “It is an exercise of discretion so that these young people are not entering the legal system. It will help us continue to streamline immigration enforcement.”

What deferred action does, however, is defer deportation (removal) of qualified individuals from the United States via an act of prosecutorial discretion. In other words, it can be bestowed only at the discretion of the federal government…there is no right to a grant of deferred action under the law.

Who Is Eligible for Deferred Action?

As mentioned above, the specific details of the program have yet to be published by USCIS. However, we do know the minimal requirements that any potential beneficiary of this program must meet. They are as follows:

  • Be between the ages of 15-30 years old;
  • Have entered the United States before age 16;
  • Been present in the U.S. for at least 5 years as of June 15, 2012;
  • Maintained continuous residence in the United States since that time;
  • Have not been convicted of either one serious crime, or multiple minor crimes;
  • Be currently enrolled in high school, a high school graduate, have a GED, or a veteran of the U.S. Military or Coast Guard.

Am I Still Eligible for Deferred Action if I Have a Criminal Record?

A laundry list of various crimes will disqualify potential beneficiaries from benefits under the deferred action program, including, but not limited to:

  •  A felony conviction;
  • A single DUI;
  • Three or more unrelated misdemeanor convictions;
  • A single “significant misdemeanor” conviction. This includes crimes involving violence such as threats, assault and domestic violence; sexual abuse or exploitation; burglary, larceny, or fraud; obstruction of justice or bribery; unlawful flight from arrest, prosecution, or the scene of an accident; unlawful possession or use of a firearm; drug distribution or trafficking; and unlawful possession of drugs;
  • Simple traffic offenses will not disqualify an applicant.

What Benefits Will I Be Entitled to Under the Deferred Action Program?

An individual who has been granted deferred action is eligible to receive employment authorization in two year increments for the period of deferred action. This employment authorization can be renewed indefinitely.  Also, in Texas, and in many other states, the Employment Authorization Document (EAD) should also allow a deferred action beneficiary to obtain a driver’s license.

Undocumented immigrants who are granted deferred action will also not accrue unlawful presence in the U.S. during the period that the deferred action is in effect. However, it will not absolve these individuals of any previous or subsequent periods of unlawful presence.

What Fees Are Required by USCIS to Apply for Deferred Action?  

As of yet, there has been no announcement from USCIS regarding fees for the deferred action program.

Is Deferred Action Available if I Am Already in Removal Proceedings?

The deferred action policy is available to persons who are in, or have been in removal proceedings.

Specifically, three categories of individuals are affected:

  • Persons currently in removal proceedings may have those proceedings terminated;
  • Persons with a final removal order can also apply for deferred action with USCIS as soon as the agency begins accepting applications;
  • Persons whose departure period has not yet expired can have their cases re-opened for purposes of termination and a grant of deferred action.

If you are in one of these three categories, you should take immediate action to make sure that you are not removed from the U.S.

Is There Anything I Can Do Now to Get Ready for the Policy Change?

We are recommending that individuals who think they may be eligible for the deferred action program do the following:

  • Review their immigration history to verify that they are indeed eligible for benefits under the new program;
  • Review their family’s immigration history to see who else in their family might be eligible under the new program;
  • Correct any deficiencies, if possible, in their pending application with the assistance of a qualified immigration attorney; and
  • Ascertain what forms of documentation are likely to be required for submission to USCIS.

Lastly, you need to be aware that some unauthorized practitioners of immigration law, as well as some unscrupulous immigration attorneys, may wrongly claim that they can currently file an affirmative deferred action application on your behalf. Be assured they cannot. However, by becoming better acquainted with the details of what is currently known about the deferred action program, as well as by following some of the preparatory steps suggested herein, applicants can give themselves a head-start on the application process that will allow them to affirmatively file for deferred action as soon as possible…..once the specific details of the program are published by USCIS.

The Immigration Law Case That Isn’t About Immigration

In Constitutional Law, Immigration on April 12, 2012 at 3:42 PM

Sometime before the Supreme Court adjourns in June, the Court will determine the fate of S.B. 1070, Arizona’s controversial immigration regulation bill. The bill itself has generated much national and international controversy. In fact, this is not even the first time S.B. 1070 has been before the Court. The case currently before the Court, Arizona v. United States, does not involve the “merits” of Arizona’s regulation. Instead, the Court confronts only a structural issue: can a state regulate immigration—an area that greatly impacts international relations—under our federal structure of government?

The case before the Court, then, is not about the political issues surrounding immigration. It is instead a clash between federal and state power, contemplating an area of the law the Court has dealt with quite frequently in the last few years. The Constitutional provision that creates this conflict is Article IV, Clause 2, the Supremacy Clause. It states:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

The Court has construed this Constitutional provision to prohibit state action in three contexts. The first is express preemption. This occurs when Congress explicitly states that a law preempts all other state laws. Preemption cases are rarely this straight forward. The next category is conflict preemption. Under this doctrine, when it not possible (either practically or actually) for an individual to comply both with the federal law and the state law, the state law must cede to the federal law. Finally, field preemption prohibits state action when a statute, or series of statutes, practically “occupies the entire field.” Examples of recognized statutory schemes that preempt the entire field are the Occupational Safety and Health Administration Act and the National Labor Relations Act.

Soon after Arizona’s governor signed S.B. 1070 into law, the United States filed for a temporary injunction to stay the law’s implementation until it could be determined whether the law was constitutional. The district court in Arizona granted an injunction of four specific provisions of S.B. 1070 because the district court believed the United States could likely show they are in fact preempted by federal law. A panel of Ninth Circuit judges upheld the district court’s findings.

The four provisions enjoined are:

  1. Section 2(b), which requires police making any lawful stop or arrest to inquire about the legal status of the individual if the officer has a reasonable suspicion of illegality.
  2. Section 3, which makes it a crime in Arizona for any individual to intentionally either fail to obtain or carry their immigration papers with them.
  3. Section 5(c), which makes undocumented individuals applying for a job, publicly soliciting a job, or receiving pay for work in Arizona a misdemeanor offense.
  4. Section 6, which authorizes Arizona law enforcement to make warrantless arrests of any individual the officer has probable cause to believe has committed a crime that would make that individual subject to deportation.

While these provisions have generated an abundance of commentary from all parts of the political spectrum, that commentary is not what is before the Court. What is actually at issue, however, is the consistent tug-of-war between the federal government and states. The law’s backers frame S.B. 1070 as a law that helps state law enforcement cooperate with the federal government, while protecting its citizens. In doing so, it invokes “police power,” which exclusively belongs to the states, to justify the would-be-law on a constitutional basis. Several interests groups across the country agree with this view of the law and have filed amicus briefs in support of this position.

The United States, the district court in Arizona, and the Ninth Circuit panel that decided the appeal, however, viewed the law in an entirely different light. While acknowledging Arizona’s intent to harmonize with the federal law governing immigration and naturalization issues, their argument frames the S.B. 1070 as one that directly conflicts with federal law. The United States also argues that by implicating foreign policy, S.B. 1070 occupies an area of the law that belongs solely to the federal government. Fearing that the end result of allowing S.B. 1070 to stand would be fifty-one different immigration law schemes, the United States wishes to prevent the law from taking effect. Thus far, the two courts to weigh these arguments have sided with the United States’ view.

Although the Court has entertained several important preemption cases over the last few years, the disparate results of these cases provide little indication as to how the Court will decide Arizona v. United States. But one thing is for sure, while this case involves immigration law, it is not a case about immigration, per se. Instead, it is part of a continuing conversation about what and which powers the federal and state governments possess. So later this year when the Court issues its decision and the media hubbub escalates with respect to immigration reform, remember that the Court is not entering the immigration reform debate; all it is doing is continuing a centuries old debtate about how power should be allocated in our federal system of government.

Obama Administration Seeks Common Sense Change in Immigration Law

In Federal Law, Immigration on March 2, 2012 at 9:18 AM

United States immigration laws currently allow immigrant spouses and children of U.S. Citizens and Legal Permanent Residents to apply for a green card (legal permanent residency) even if they initially entered the country without inspection. However, the law currently requires most of these folks to apply for their green card from their country of origin.

The Problem

The catch, however, is that in most cases leaving the United States, after entering without inspection, triggers a 10-year ban that Congress enacted back in 1996 — even for those individuals who are already fully eligible to become legal permanent residents.

The Solution

To remedy this catch-22 situation, Congress crafted a series of waivers for the laundry list of violations that may lead to a finding of inadmissibility under section 212(a)(9)(A) or (C) of the Immigration and Nationality Act (INA).

The most commonly utilized of these waivers is the I-601 Unlawful Presence Waiver. To qualify for this waiver, an applicant must have a U.S. Citizen or Legal Permanent Resident spouse, or parent, that will suffer “extreme hardship” if the applicant cannot return to the United States, or if they have to relocate outside the U.S. to be with the applicant.

“Extreme hardship” is vaguely defined as greater than the normal hardship a qualifying relative can be expected to experience if the intended immigrant is denied admission. An example of extreme hardship is being unable to provide care for a disabled family member living in the United States.

It is important to prove BOTH why the qualifying relative cannot move abroad AND why the qualifying relative cannot simply live in the U.S. without the intended immigrant. It is not enough to merely assert that the qualifying relative will miss the immigrant’s company, as this is considered a “normal” hardship, not extreme hardship.

Oddly enough, and unfortunately,  the applicant’s children, of any age, are not considered qualifying relatives for the purpose of the I-601 Waiver. Thus, a waiver cannot be granted solely on the basis of your relationship to your U.S. Citizen or Legal Permanent Resident child. However, documenting that you have a U.S. Citizen or Legal Permanent Resident child will help you establish extreme hardship with respect to your spouse or parent; as any hardship that befalls your child will likely also impose a hardship upon your spouse. Also, applicants with more than one unlawful entry into the United States after April 1, 1997 may not be eligible for this waiver.

Currently, the intending immigrant must submit their waiver packet at the U.S. Embassy or Consulate abroad, where it can take several months and even years for United States Citizenship and Immigration Services  (USCIS) to make a decision on the waiver — and all of this happens while the family remains separated from each other.  Likewise, sometimes waivers are not approved at all, and immigrants end up becoming permanently separated from their American families. As a result, many couples who need this waiver choose to lay low in the United States, rather than go through the waiver process and risk facing the 10 year ban.

A Much Better Solution

However, USCIS is now proposing a small tweak in the waiver process for the spouses and children of U.S. Citizens (not Legal Permanent Residents) who are seeking waivers only for their own unlawful presence.  This proposed rule (which is currently only a “notice of intent” to publish a proposed rule) would provide eligible immigrants with “provisional waivers” in the United States, before leaving abroad to pick up a green card in their country of origin. Leaving with the waiver in hand will allow these immigrants to depart the U.S. knowing that they will almost certainly be allowed to return to the U.S. to be with their families.

It is important to remember that the provisional waiver rule WILL NOT allow applicants to receive their green cards in the U.S.; it is only the provisional waiver itself that they will receive in the U.S.  Applicants will still have to travel abroad for the issuance of the immigrant visa/green card by the U.S. consulate in their home country.  However, USCIS is seeking to cut down on the amount of time immigrants will have to wait abroad to pick up their green cards, from the current wait time of several months, to a much more manageable wait time of about two weeks.

The Politics of Immigration Law

It should come as no surprise that this recent move was greeted with broad praise from immigration attorneys, as well as immigrant and Latino groups, which have recently been critical of the high rate of deportations under President Obama. And, with the 2012 Presidential Election on the horizon, and President Obama needing to shore up lagging support among Latinos, the timing of the announcement from the White House was clearly political. So, as to be expected, a few anti-immigrant groups have cried foul because this particular tweak in the law is one of a number of recent measures by the Obama administration that do not require the approval of Congress.

However, the fact of the matter is that those who would criticize this measure have little ground to stand on because the proposed rule change does not change any laws, nor does it provide any new benefits for undocumented immigrants. What it does, however, is improve compliance with current law, as waivers were originally designed to ease the effects of contradictory or outmoded statutes on immigrant communities, and to prevent the hardship of family separation.

Also, it is important to note that not only has this proposed rule been in the planning stages for years, but it has also been recommended by multiple non-partisan governmental and non-governmental organizations. Accordingly, assertions that it is nothing more than election year politics by the President are unfounded.

How Many Waivers Were Approved Last Year?

In Fiscal Year 2011, USCIS received 23,262 I-601 Waiver applications, and approved 17,790 of them… roughly a 76 percent approval rate. According to USCIS, however, the approval rate in Ciudad Juarez, Mexico last year was even higher — closer to 90 percent.

 What Happens if My Wavier is Denied?

Individuals whose waivers are denied would be subject to USCIS guidance and law enforcement priorities for issuing Notices to Appear (NTA) in immigration court. For example, convicted criminals, public safety threats, and those suspected of fraud, among others, will receive NTAs to appear in Immigration Court for removal proceedings.

Anyone else who is denied a I-601 Waiver will have the choice to either abandon the process (while still remaining in the United States) or appeal the denial — while staying in the United States for the two or three years it typically takes to adjudicate the appeal.

Of course, the I-601 Waiver does not guarantee admission into the United States. The U.S. Consulate can always, after the initial consular interview, discover new grounds of inadmissibility, which may or may not, have an applicable waiver that can cure the inadmissibility.

What’s the Bottom Line?

The bottom line is that those who abandon the waiver process, or who have their waiver appeals denied, if not priority cases for ICE, will be back to square one—undocumented and married to U.S. Citizens. But at least they will be with their families in the United States, rather than separated from them, or forced to move under duress.

Can I Apply For A Waiver Now?

Short Answer: No.

Long Answer: It’s important to note that the provisional waiver system is not yet in effect, and won’t be in effect until USCIS publishes a final rule in the Federal Register that specifies the effective date the new law will go into effect. Some reports indicate that it may take as long as up to a year before the rule goes into effect. Therefore, DO NOT send in an application requesting a provisional waiver at this time, as USCIS will not accept these applications until a final administrative rule implementing the new law goes into effect.

Also, you need to be aware that some unauthorized practitioners of immigration law, as well as some unscrupulous immigration attorneys, may wrongly claim that they can currently file a provisional I-601 Waiver on your behalf.

Be assured, they cannot.

So, it goes without saying, or it should go without saying, that if you already have an immigrant visa interview scheduled with the U.S. Department of State, you still need to attend that interview. The State Department may cancel your immigrant visa registration if you fail to appear for your scheduled interview.

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Drug War Desperados: Asylum and U.S.-Mexico Immigration

In Immigration on November 1, 2011 at 2:50 PM

Higher standards of living, family reunification, and enhanced educational opportunities have long made the United States an attractive destination for Mexican emigrants. Intense turmoil south of the border in recent years has made la via norte attractive for another reason: sanctuary. Since the end of 2006, more than 40,000 people have been killed as a result of the Mexico drug wars. Gruesome stories from the wars make Francis Ford Coppolla look like Don Bluth. Godfathers with sobriquets like “El Barbie,” “Crutches,” and “El Lobo” have directed live dismemberments, chainsaw decapitations, and acid baths against their contrarios. The drug lords have likewise masterminded the assassinations of almost 30 mayors, a congressman, and a host of police officers. The horrific consequences of “metendose” in the conflict make it no surprise that a fifth of Mexico’s federal police officers are under internal investigation for cooperating with the cartels.

High-conflict states, marked in red

In light of the mayhem, it seems Mexicans should have a strong case for asylum immigration. Unfortunately for most of those seeking escape from the madness, however, asylum law provides a narrow basis for immigration. To qualify for asylum, emigrants must meet a stringent set of factors, each addressed in detail below.

I. Asylum seekers must have suffered past persecution or have a well-founded fear of future persecution.

Case law defines persecution as “threat to life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive.” Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985). Because harm arising only out of general civil strife will not be considered “persecution,” the millions of innocent bystanders in the Mexican drug wars are unlikely candidates for asylum unless they can show that they have been targeted on account of one of the protected grounds discussed in Section III infra.

II.  The persecution must be by (a) a state actor or (b) a private actor against whom the government is unwilling or unable to provide protection.

The Mexican government appears unable to provide protection from the drug violence. As mentioned above, more than 40,000 people have been killed in Mexico in drug-related violence since the end of 2006.

III.  The persecution must be on account of one of five protected grounds: (1) race; (2) nationality; (3) religion; (4) membership in a particular social group; or (5) political opinion.

The two most likely protected grounds from which a Mexican might seek asylum are political opinion or membership in a particular social group (PSG). Unfortunately, gaining PSG asylum can be challenging. The case law defines social group as a group of persons who share a common characteristic that is either immutable or so fundamental to the members’ identities or consciences that they should not be required to change it. See Matter of Acosta, 233. PSG’s must also have social visibility and particularity. For example, non-criminal informants of the Cali drug cartel in Colombia were denied asylum on the basis that their social group  had no “social visibility” or was not perceived as a group in a society; furthermore, their group had no particularity, i.e. it was not a discrete part of society. The group therefore failed to qualify as a PSG. For the same reasons, “affluent Guatemalans” and Salvadoran youths subject to recruitment efforts by the Mara Salvatrucha have failed to qualify as PSG. Matter of SEG, 24 I.&N. Dec. 579 (BIA 2008). On the other hand, family is well‐recognized as a particular social group. See LopezSoto v. Ashcroft, 383 F.3d 228, 235 (4th Cir. 2004); Matter of Acosta, 19 I.&N. Dec. 211, 233 (BIA 1985). Former occupation and current occupation are also PSG, if fundamental to identity or conscience. Mexican police officers, family of police officers, or perhaps members of families known to be opposed to the drug cartels might be able to qualify as members of PSG.

The protected ground “political opinion” is broadly interpreted. Protected “political opinion” may be expressed through actions as well as words. It can include involvement in political organizations or activities, traditional political beliefs, or beliefs regarding policy issues. Even neutrality may be a political opinion when it is the product of “conscious, deliberate choice” and it is “articulated sufficiently for it to be the basis of past or anticipated persecution.” Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997). Likely relevant to some Mexicans in danger of persecution, opposition to or refusal to join a gang could be construed as a political opinion. See UNHCR Guidance Note on Refugee Claims Relating to Victims of Organized Gangs ¶ ¶ 47‐48.

Finally, one must show a nexus between the persecution and the protected ground. In other words, the persecution must be “on account of” the protected ground. It is not enough to just show the existence of a protected ground and the existence or possibility of persecution.

IV.  The applicant must be unable to safely and reasonably relocate to another part of the country of origin.

U.S. government attorneys opposing asylum for cartel contrarios might argue there are states in Mexico that have retained a relative calm and to which any asylum-seeker could safely relocate. With the steady spread and escalation of violence in Mexico, the persuasiveness of such an argument is increasingly tepid and would certainly depend on the facts of each individual case.

V.  The applicant’s past conduct must not give rise to any bars to eligibility.

Some acts or conditions will bar an asylum-seeker’s application. Bars to eligibility include, inter alia: (1) involvement in the persecution of others; (2) commission of a particularly serious crime; (3) posing a serious danger to the security of the U.S.; and (4) terrorist activities, including supporting and aiding terrorists. Failure to file for asylum within one year of arrival in the U.S. unless there are “changed circumstances” will also bar grant of asylum.

Conclusion

An emigrant can present herself at any port of entry and request asylum. From there she will be detained and held for about four to six weeks before a credible fear interview. If she passes, then ICE will set a bond amount (usually high) pending final disposition.

If asylum is not an option, immigrants seeking protection should consider alternative avenues like Withholding of Removal and protection under the Convention Against Torture. These alternatives offer limited possibility of success but can sometimes offer relief where asylum cannot.

Until asylum law changes—unlikely between now and November 2012—most Mexicans enduring violence and threat of violence must follow the more traditional (and often tedious and protracted) immigration routes.