Queens Immigration Law Firm

Announcement of Major Changes in Immigration Law

 

After one and a half years, President Obama finally decided that “enough is enough” and pulled the trigger on enacting immigration reforms.   While the measures taken by President Obama fall short of the bipartisan comprehensive immigration reform bill that unanimously passed the Senate in June, 2013, they are certainly expansive in nature, and provide some relief to the millions of undocumented Americans living in this country.   The president does not have authority to provide a pathway to citizenship without the cooperation of the Senate and the House of Representatives.  We are very happy with these changes, and applaud President Obama for taking this action.

Below is a summary of the proposed executive actions:

 

    1.  Deferred Action for Parental Accountability (DAPA)

                The centerpiece of this executive action is a policy called Deferred Action for Parents of U.S. citizens and lawful permanent residents (DAPA).  Under DAPA, an undocumented individual living in the U.S. on November 20, 2014, and is the parent of a U.S. citizen or lawful permanent resident will qualify for deferred action if they:

– Have lived in the U.S. since January 1, 2010 (need to provide documentation establishing physical presence);

– Are the parents of a U.S. citizen or lawful permanent resident born on or before November 20, 2014 (need to show birth certificates); and

– Are not an enforcement priority for removal from the U.S. (to be clarified at a later date)

If a person if granted (DAP), they will receive an employment authorization card (EAD), valid for 3 years.  With the EAD, the individual can apply for a social security card, and apply for a driver’s license in most states.

 

    2.  Expansion of the Deferred Action for Childhood Arrivals (DACA) program

                Under this policy change, individuals born prior to June 15, 1981 will be eligible to apply to apply for DACA, and those of who have lived continuously in the U.S. since January 1, 2010 will also be eligible provided that they meet the all of the other guidelines including:

– Have come to the U.S. under the age of 16

– Currently are in school, have graduated from high school, or have obtained a G.E.D.

– Have not been convicted of a felony offense or a significant misdemeanor offense

The granting a DACA and employment authorization will now be valid for 3 years.  Those who have pending applications for an extension of their DACA will now receive a new EAD for 3 years.

 

Per the NY Times, “Obama Said to Plan Moves to Shield 5 Million Immigrants”

The attached article, published on November 13, 2014 in the New York Times,  reveals President Obama’s likely plans for immigration reform via an executive order.   We are hopeful that in addition to granting deferred action for the parents of U.S. citizen children, lawful permanent residents, and DACA recipients, the President goes a step further, and allows certain immigrants, who have been living in the U.S. for a long period of time, to Parole in Place.  The Parole in Place doctrine will allow those eligible, to receive their Lawful Permanent Residence (green card) in the United States.

http://www.nytimes.com/2014/11/14/us/obama-immigration.html?_r=1

Immigration Reform has Stalled…Now What?

With comprehensive immigration reform stalled in the House of Representatives, and President Obama inundated with complaints from the Latino activists, the President recently ordered his Department of Homeland Security Secretary, Jeh C. Johnson, to conduct an evaluation of all deportations of illegal immigrants.  

When it is predictably confirmed by DHS Secretary Johnson that the far majority of those immigrants removed from this country are not dangerous criminals, but are rather hard working people trying to make a better life for their family, President Obama will have a few options at his disposal besides sitting back and waiting for the House to act on immigration reform.

First, President Obama could have the Department of Homeland Security issue a memorandum stating that all parents of DREAMers (those children brought to the U.S. by their parents at a young age, and who have graduated high school, or are currently enrolled in school), will be eligible for Deferred Action.  The granting of Deferred Action by the U.S. Citizenship and Immigration Services (USCIS) will allow the parents of DREAMers to live and work legally in the country, and pay taxes using a social security number. 

This option would constitute a temporary fix to those persons in the U.S. illegally as the granting of Deferred Action  puts immigrants in quasi legal status, and does not provide a path towards lawful permanent resident (green card) status, with the ultimate goal of becoming a U.S. citizen.

Second, President Obama could attempt to alter DHS/ICE’s current position on Prosecutorial Discretion by issuing a new policy memorandum clearly stating which cases should be prosecuted, and which cases should be administratively closed or terminated.  The memo might be drafted to prevent the prosecution and removal of immigrants who would qualify for relief under the Senate’s Comprehensive Immigration Reform Bill, or the parents of DREAMers. 

The problem with this second option is that it does not address the millions of immigrants who are not currently in deportation/removal proceedings, and may not lead to the granting of employment authorization to those immigrants whose cases were administratively closed.

The third option is granting Parole in Place for those immigrants who would qualify for relief under the Senate’s Comprehensive Immigration Reform Bill, or who are the parents of DREAMers.  Parole in Place is a doctrine currently used to allow noncitizen spouses, parents, and unmarried minor children of U.S. citizen members of the U.S. military to be paroled into the U.S., and ultimately allows them to adjust their status to Lawful Permanent Resident in the U.S., despite the fact that they have accrued more than 6 months of unlawful presence in the U.S. 

This option would be the best for immigrants living in the U.S. illegally because it would provide a path to permanent resident and ultimately U.S. citizenship for those who qualify.  The problem with this option is that it would clearly be construed as a means to bypass current immigration law, and would be challenged vociferously by the Tea Party faction of the Republican party who do not want to see illegal immigrants in the election booths in the near future.

In sum, President Obama made immigration reform one of his top priorities during his second term in office.   Now is the time for him to use his executive authority to make changes to existing immigration policy that will better the lives of millions of families, and ultimately strengthen the U.S. economy. 

 

  

 

Is Deferred Action Possible if Immigration Reform Continues to Stall in House

This is a well written article that discusses President Obama’s options if immigration reform continues to stall in the House.   Deferred Action for those immigrants who would benefit from the Senate’s Comprehensive Immigration Reform bill would certainly be better than the status quo.

http://www.thedailybeast.com/articles/2014/02/11/obama-could-legally-stop-immigrant-deportations.html

The Misleading I-601A Waiver

On April 2, 2012, the U.S. Citizenship and Immigration Services (USCIS), with great fanfare, published a proposed rule to allow immigrants who have approved Immediate Relative petitions (i.e. U.S. citizen spouse, son or daughter over 21 years of age) to apply for a waiver of the 3/10 year unlawful presence bar “in the U.S.”  The conditional approval of the I-601A waiver by the USCIS would then make visa processing a very quick process-the time frame stated was one month.  What the USCIS did not state is how difficult it would be to get the I-601A waiver approved.  There are a number of reasons why this I-601A does not live up to its billing.

(1)  The I-601A waiver only cures an immigrant’s unlawful presence in the U.S., and does not address other grounds of inadmissibility that the immigrant may face.  For example, many immigrants have spent the majority of their lives in the U.S., and some have had the misfortune of getting arrested by the police.  If the arrest resulted in a conviction or a guilty plea, even if the plea was to a “non-significant” misdemeanor” or a violation, the USCIS will not adjudicate the I-601A waiver.  USCIS’s policy is that if there is “any reason to believe” that the applicant will be inadmissible on another enumerated ground of inadmissibility, besides unlawful presence, they will not approve the waiver.

Aside from the criminal bar, some immigrants entered the U.S. with fraudulent documents, or made a misrepresentation to an immigration officer upon inspection.  These immigrants would also be ineligible for an I-601A waiver because fraud or misrepresentation are grounds of inadmissibility.

(2)  The I-601A waiver will not be adjudicated by the USCIS if an immigrant is currently in removal proceedings.   Prior to filing the I-601A, you must get the DHS to administratively close the case (i.e. terminate proceedings).  This may not be easy to accomplish as the Assistant District Counsel with DHS/ICE is often unwilling to consent to termination, and will only agree to administrative closure.

(3)  Even if an immigrant does not fall into the above referenced categories, he/she must still prove to the USCIS that their removal would lead to “extreme hardship” to their U.S. citizen spouse or parent.   At this time, October 28, 2013, the USCIS has not given us statistics on the approval rate of I-601A waivers.

Showing extreme hardship requires extensive documentation, and can be a costly proposition, i.e. psychological report.  My feeling is that President Obama thought this process would simplify and shorten the visa processing time for applicants for Immigrant Visas, but was unaware of the roadblocks that the USCIS puts up to make this process a very difficult and expensive one.

When will the House act on Comprehensive Immigration Reform?

All has been quiet on the immigration reform front since Congress went on recess in August, and as of today, September 24, 2013, there seem to be more questions regarding comprehensive immigration reform than answers.  The following are three questions on the minds of all parties affected by any pending legislation.

1) Is the House of Representatives deliberately stalling with the hope that any potential bill “dies” in the House, or does the House have a plan of action with regards to immigration reform?

2) If the House decides to act on immigration reform, will they continue with the piecemeal approach advocated by the majority of Republicans, or will they vote on the bill passed by an overwhelming majority in the Senate?

3) If Congress decides to continue with the piecemeal approach, will they eventually draft legislation that grants a “Pathway to Citizenship” for the approximately 11 million undocumented immigrants living in the U.S.?

With regards to the first question, many political insiders have stated that the House plans on addressing immigration reform in October, after the current budgetary issues are addressed.  Fortunately, it appears as though a diplomatic resolution has been reached with Syria, though no one can predict if another crisis will arise, or if the House will move onto something else.

With regards to question number two, the conservative members of the House have had no problem drafting legislation that addresses immigration enforcement and border security.  They may even be in favor of drafting legislation that grants additional temporary visas to skilled workers (H-1B visas), and there has even been some talk of support for the Dream Act which would provide a pathway to Citizenship for those children brought into the U.S. when they were children, and who have graduated from high school, or obtained a G.E.D.

The third question is the most problematic because only 24 of 233 Republican members of the House represent districts where more than one-quarter of their constituents are Hispanic.  Moderate Republicans with districts containing sizeable immigrant populations, as well as Republican senators who voted in favor of the Comprehensive Immigration Reform, must be able to persuade their conservative colleagues in the House that the future of the Republican party hinges upon attracting Hispanic voters.

We will keep our fingers crossed, and hope that lobbyists, the President, and members of the Senate can convince obstinate members of the House to think about what’s best for the long term interests of their party, the country, and the millions of undocumented immigrants and their U.S. citizen children, brothers, and sisters.   (Some reassurance that they would not be unseated would also help).

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