Friday, November 21, 2014

Obama's Executive Action on Immigration




Important notice: These initiatives have not yet been implemented, and USCIS is not accepting any requests or applications at this time. Beware of anyone who offers to help you submit an application or a request for any of these actions before they are available. You could become a victim of an immigration scam.

Please call our office at 716-854-1541 to schedule a conference to speak to a lawyer if you have any questions.

On November 20, 2014, the President announced a series of executive actions to crack down on illegal immigration at the border, prioritize deporting felons not families, and require certain undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the U.S. without fear of deportation.

These initiatives include:
  • Expanding the population eligible for the Deferred Action for Childhood Arrivals (DACA) program to young people who came to this country before turning 16 years old and have been present since January 1, 2010, and extending the period of DACA and work authorization from two years to three years
  • Allowing parents of U.S. citizens and lawful permanent residents who have been in the country since January 1, 2010, to request deferred action and employment authorization for three years, in a new Deferred Action for Parental Accountability program, provided they pass required background checks
  • Expanding the use of provisional waivers of unlawful presence to include the spouses and sons and daughters of lawful permanent residents and the sons and daughters of U.S. citizens
  • Modernizing, improving and clarifying immigrant and nonimmigrant programs to grow our economy and create jobs
  • Promoting citizenship education and public awareness for lawful permanent residents and providing an option for naturalization applicants to use credit cards to pay the application fee
  • Important notice: These initiatives have not yet been implemented, and USCIS is not accepting any requests or applications at this time. Beware of anyone who offers to help you submit an application or a request for any of these actions before they are available. You could become a victim of an immigration scam. Subscribe to this page to get updates when new information is posted.
Next steps
USCIS and other agencies and offices are responsible for implementing these initiatives as soon as possible. Some initiatives will be implemented over the next several months and some will take longer.

Over the coming months, USCIS will produce detailed explanations, instructions, regulations and forms as necessary. The brief summaries provided below offer basic information about each initiative.

While USCIS is not accepting requests or applications at this time, if you believe you may be eligible for one of the initiatives listed above, you can prepare by gathering documents that establish your:
  • Identity;
  • Relationship to a U.S. citizen or lawful permanent resident; and
  • Continuous residence in the United States over the last five years or more.
Below are summaries of major planned initiatives by USCIS, including:
  • Who is eligible
  • What the initiative will do
  • When you can begin to make a request
  • How to make a request
1. Deferred Action for Childhood Arrivals (DACA) program

Who

Current DACA recipients seeking renewal and new applicants, including individuals born prior to June 15, 1981, who meet all other DACA guidelines.

What 
Allows individuals born prior to June 15, 1981, to apply for DACA (removing the upper age restriction) provided they meet all other guidelines.
Requires continuous residence in the United States since January 1, 2010, rather than the prior requirement of June 15, 2007.
Extends the deferred action period and employment authorization to three years from the current two years.

When 
Approximately 90 days following the President’s November 20, 2014, announcement.

How 
Go to the Consideration of Deferred Action for Childhood Arrivals (DACA) page for instructions which will be updated over the next several months. Subscribe to this page to receive updates by email.

2. Deferred action for parents of U.S. citizens and lawful permanent residents

Who 
An undocumented individual living in the United States who, on the date of the announcement, is the parent of a U.S. citizen or lawful permanent resident and who meets the guidelines listed below.

What 
Allows parents to request deferred action and employment authorization if they:
  • Have continuous residence in the United States since January 1, 2010;
  • Are the parents of a U.S. citizen or lawful permanent resident born on or before November 20, 2014; and
  • Are not an enforcement priority for removal from the United States, pursuant to the November 20, 2014, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum.
Notes: USCIS will consider each request for Deferred Action for Parental Accountability (DAPA) on a case-by-case basis. Enforcement priorities include (but are not limited to) national security and public safety threats.

When
Approximately 180 days following the President’s November 20, 2014, announcement.

How 
Subscribe to this page to receive updates by email.

3. Provisional waivers of unlawful presence

Who 
Undocumented individuals who have resided unlawfully in the United States for at least 180 days and who are:
  • The sons and daughters of U.S. citizens; and
  • The spouse and sons or daughters of lawful permanent residents.
What 
Expands the provisional waiver program announced in 2013 by allowing the spouses, sons or daughters of lawful permanent residents and sons and daughters of U.S. citizens to get a waiver if a visa is available. There may be instances when the qualifying relative is not the petitioner.

Clarifies the meaning of the “extreme hardship” standard that must be met to obtain a waiver.

Notes: Currently, only spouses and minor children of U.S. citizens are allowed to apply to obtain a provisional waiver if a visa is available. For more information about the waivers program, go to the Provisional Unlawful Presence Waivers page which will be updated over the next several months.

When 
Upon issuing of new guidelines and regulations.

How 
Subscribe to this page to receive updates by email.

4. Modernize, improve and clarify immigrant and nonimmigrant programs to grow our economy and create jobs

Who 
U.S. businesses, foreign investors, researchers, inventors and skilled foreign workers.

What 
USCIS will:
  • Work with the Department of State to develop a method to allocate immigrant visas to ensure that all immigrant visas authorized by Congress are issued to eligible individuals when there is sufficient demand for such visas.
  • Work with the Department of State to modify the Visa Bulletin system to more simply and reliably make determinations of visa availability.
  • Provide clarity on adjustment portability to remove unnecessary restrictions on natural career progression and general job mobility to provide relief to workers facing lengthy adjustment delays.
  • Clarify the standard by which a national interest waiver may be granted to foreign inventors, researchers and founders of start-up enterprises to benefit the U.S economy.
  • Authorize parole, on a case-by-case basis, to eligible inventors, researchers and founders of start-up enterprises who may not yet qualify for a national interest waiver, but who:
    Have been awarded substantial U.S. investor financing; or Otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.
  • Finalize a rule to provide work authorization to the spouses of certain H-1B visa holders who are on the path to lawful permanent resident status.
  • Work with Immigration and Customs Enforcement (ICE) to develop regulations for notice and comment to expand and extend the use of optional practical training (OPT) for foreign students, consistent with existing law.
  • Provide clear, consolidated guidance on the meaning of “specialized knowledge” to bring greater clarity and integrity to the L-1B program, improve consistency in adjudications, and enhance companies’ confidence in the program.
When 
Upon issuing necessary guidance and regulations.

How 
Subscribe to this page to receive updates by email.

5. Promote the naturalization process

Who 
Lawful permanent residents eligible to apply for U.S. citizenship

What 
  • Promote citizenship education and public awareness for lawful permanent residents.
  • Allow naturalization applicants to use credit cards to pay the application fee.
  • Assess potential for partial fee waivers in the next biennial fee study.
Notes: Go to the U.S. Citizenship page to learn about the naturalization process and visit the Citizenship Resource Center to find naturalization test preparation resources. You can also visit the N-400, Application for Naturalization, page.

When 
During 2015

How 
Subscribe to this page to receive updates by email.

Key Questions and Answers
Q1: When will USCIS begin accepting applications related to these executive initiatives?
A1:  While USCIS is not accepting applications at this time, individuals who think they may be eligible for one or more of the new initiatives may prepare now by gathering documentation that establishes their:
Identity;
  • Relationship to a U.S. citizen or lawful permanent resident; and
  • Continuous residence in the United States over the last five years or more.
  • USCIS expects to begin accepting applications for the: Expanded DACA program approximately 90 days after the President’s November 20, 2014, announcement; and Deferred action for parents of U.S. citizens and lawful permanent residents (Deferred Action for Parental Accountability) approximately 180 days after the President’s November 20, 2014, announcement.
Others programs will be implemented after new guidance and regulations are issued.

Q2: How many individuals does USCIS expect will apply?
A2: Preliminary estimates show that roughly 4.9 million individuals may be eligible for the initiatives announced by the President. However, there is no way to predict with certainty how many individuals will apply. USCIS will decide applications on a case-by-case basis and encourages as many people as possible to consider these new initiatives. During the first two years of DACA, approximately 60 percent of potentially eligible individuals came forward. However, given differences among the population eligible for these initiatives and DACA, actual participation rates may vary.

Q3: Will there be a cutoff date for individuals to apply?
A3: The initiatives do not include deadlines. Nevertheless, USCIS encourages all eligible individuals to carefully review each initiative and, once the initiative becomes available, make a decision as soon as possible about whether to apply.

Q4: How long will applicants have to wait for a decision on their application?
A4: The timeframe for completing this new pending workload depends on a variety of factors. USCIS will be working to process applications as expeditiously as possible while maintaining program integrity and customer service. Our aim is to complete all applications received by the end of next year before the end of 2016, consistent with our target processing time of completing review of applications within approximately one year of receipt. In addition, USCIS will provide each applicant with notification of receipt of their application within 60 days of receiving it.

Q5: Will USCIS need to expand its workforce and/or seek appropriated funds to implement these new initiatives?
A5: USCIS will need to adjust its staffing to sufficiently address this new workload. Any hiring will be funded through application fees rather than appropriated funds.

Q6: Will the processing of other applications and petitions (such as family-based petitions and green card applications) be delayed?
A6: USCIS is working hard to build capacity and increase staffing to begin accepting requests and applications for the initiatives. We will monitor resources and capacity very closely, and we will keep the public and all of our stakeholders informed as this process develops over the course of the coming months.

Q7: What security checks and anti-fraud efforts will USCIS conduct to identify individuals requesting deferred action who have criminal backgrounds or who otherwise pose a public safety threat or national security risk?
A7: USCIS is committed to maintaining the security and integrity of the immigration system. Individuals seeking deferred action relief under these new initiatives will undergo thorough background checks, including but not limited to 10-print fingerprint, primary name, and alias name checks against databases maintained by DHS and other federal government agencies. These checks are designed to identify individuals who may pose a national security or public safety threat, have a criminal background, have perpetrated fraud, or who may be otherwise ineligible to request deferred action. No individual will be granted relief without passing these background checks.

In addition, USCIS will conduct an individual review of each case. USCIS officers are trained to identify indicators of fraud, including fraudulent documents. As with other immigration requests, all applicants will be warned that knowingly misrepresenting or failing to disclose facts will subject them to criminal prosecution and possible removal from the United States.

Q8: What if someone’s case is denied or they fail to pass a background check?
A8: Individuals who knowingly make a misrepresentation, or knowingly fail to disclose facts, in an effort to obtain deferred action or work authorization through this process will not receive favorable consideration for deferred action. In addition, USCIS will apply its current policy governing the referral of individual cases to Immigration and Customs Enforcement (ICE) and the issuance of Notices to Appear before an immigration judge. If the background check or other information uncovered during the review of a request for deferred action indicates that an individual’s presence in the United States threatens public safety or national security, USCIS will deny the request and refer the matter for criminal investigation and possible removal by ICE, consistent with existing processes.

Q9: If I currently have DACA, will I need to do anything to receive the third year of deferred action and work authorization provided by the executive initiatives?
A9: The new three-year work authorization timeframe will be applied for applications currently pending and those received after the President’s announcement. Work authorizations already issued for a two-year period under the current guidelines will continue to be valid through the validity period indicated on the card. USCIS is exploring means to extend previously issued two-year work authorization renewals to the new three-year period.

Q10: Will the information I share in my request for consideration of deferred action be used for immigration enforcement purposes?
A10: Information provided in your request is protected from disclosure to Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless you meet the criteria for the issuance of a Notice to Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance. Individuals who are granted deferred action will not be referred to ICE. The information may be shared, however, with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including:
  • Assisting in the consideration of the deferred action request;
  • To identify or prevent fraudulent claims;
  • For national security purposes; or
  • For the investigation or prosecution of a criminal offense.
This policy covers family members and guardians, in addition to you.

Q11: What is USCIS doing to assist dependents of U.S. armed services personnel?
A11: USCIS is working with the Department of Defense to determine how to expand parole authorization to dependents of certain individuals enlisting or enlisted in the U.S. armed services. For information on the existing parole-in-place policy for military personnel, please read this policy memorandum.

Last Reviewed/Updated: 11/20/2014

Thursday, August 7, 2014

Why Isn’t President Obama Protecting Refugee Children With A Stroke Of His Pen?

Originally published on Fox News Latino:
The humanitarian crisis on the southern border is the center of a political firestorm in Washington. At issue is the bipartisan 2000 anti-trafficking law, signed by President Bush and re-authorized in 2008, that requires the Obama Administration to institute immigration court proceedings against unaccompanied children from Central American countries rather than deporting them without a hearing like children from Mexico. 
Both the President and Republicans have expressed a keen interest in stripping those provisions to enable the Administration to expeditiously deport children without the full panoply of due process protections. For the obvious reasons, most Democrats and immigrant rights advocates oppose the proposed change.
Given the confines of the law, like many Republicans, President Obama has expressed a desire to “eliminate delays in deporting children” that his Administration unilaterally determines have no legal option to stay in the United States. Unfortunately for the children, President Obama has neglected to acknowledge that there is a distinct legal option available to each refugee child fleeing violence in Central America, and it is within the President’s sole discretionary authority to exercise it. 
The Immigration and Nationality Act specifically provides that under 8 U.S. Code § 1157, INA § 207(b) the President maintains the express power to grant refugee status to groups of individuals in the presence of “grave humanitarian concerns,” or if it is otherwise in the national interest. If tens of thousands of unaccompanied children fleeing violence doesn't constitute a grave humanitarian concern, I don’t know what on Earth does.
To add insult to injury, not only is the President declining to exercise his authority to protect refugee children, his Administration is fast-tracking deportation proceedings, and children are being removed without the benefit of legal representation. This reflects a distinct policy shift by the Administration calculated to discourage children from fleeing violence in their home countries and an unconscionable decision to deport them back to an almost certain death.
The American Civil Liberties Union and American Immigration Council have filed a nationwide class-action lawsuit on behalf of thousands of refugee children challenging the Administration’s failure to afford children an opportunity to obtain counsel as the law requires. The lawsuit begs the court to provide more time for children to find a lawyer, or to be provided representation at government expense if the Administration elects to proceed against them on an expedited basis.
Ahilan Arulanantham, Deputy Legal Director at the ACLU of Southern California and a Senior Staff Attorney at the ACLU Immigrants’ Rights Project, commented that the children named in the lawsuit are fleeing violence in their home countries and “are now under imminent threat of being deported, potentially to their death, because of the Administration’s misguided ‘rocket docket’ policy for child refugees.” He remarked that “To force them to defend themselves against a trained prosecutor without legal assistance violates due process and our most basic values as a nation.”
But it gets worse. 
A recent release of a Freedom of Information Act request reveals that despite a 2010 policy against it, the Obama administration is detaining hundreds of pregnant women in detention facilities across the United States. The ignored policy provides that “absent extraordinary circumstances or the requirements of mandatory detention” women who are pregnant, nursing, or demonstrate that they are primary caretakers of children or an infirm person, should not be detained.
If only it stopped at detaining pregnant women. There are credible reports of expecting mothers being underfed, and being fed maggot infested food, while being denied gynecological exams and adequate prenatal care during pregnancy, in addition to being housed in unsanitary conditions in extreme temperatures.
It simply shocks the conscience that the most vulnerable among us, children, and detained pregnant mothers, are being treated as a political inconvenience to be disposed of like yesterday’s polling numbers, which incidentally are not good for the President. An Associated Press - GFK Public Affairs poll just released reveals that disapproval of the President’s immigration policy has jumped 18 points to 57 percent. Given the President’s handling of the current crisis, it is easy to understand why.
Democrats have been understandably quick to shame Republicans for their lack of compassion for children fleeing violence. Considering recent events, maybe it is time they start pointing fingers at the leader of their own party.

Wednesday, July 2, 2014

President Obama’s Immigration Wait And See Looks To Maximize Political Impact

President Obama’s latest Rose Garden immigration announcement has left reform advocates scratching their heads while exhaling a heavy sigh of disappointment. The President spent most of his speech blaming Republicans for not passing immigration reform. When he was done finger pointing, he revealed that he has ordered the transition of interior immigration enforcement resources to the southern border, and that he has requested recommendations by the end of summer on what unilateral steps he can take to stem the tide of his record deportations. In sum, he merely promised to think about what he may do to stop deportations at some unspecified date in the future. 
The question becomes, why does the President need the rest of the summer to determine what actions he may take that are constitutionally permissible? Over the past two years he has been provided numerous suggestions from a crowd of sources including immigration lawyers, think tanks, reform advocates, members of his own party, and from undocumented immigrants themselves. So why does he need more time before taking action, and more importantly what has he been doing the last month since postponing the deportation review other than wasting time?  
The answer to me is clear: President Obama is delaying the expansion of prosecutorial discretion initiatives to time their announcement as close to the midterm elections as possible to maximize their political impact. In the meantime, while we wait for the President’s next Rose Garden press conference, tens of thousands of immigrants that could potentially benefit will be deported. What adds to the frustration is that the President spent the better part of his presidency claiming he does not maintain the constitutional authority to stop the deportation carnage, which he clearly does, as evidenced by the previous steps he has taken to provide both temporary and permanent deportation relief to specific classes of individuals.
To compound matters, this all comes on the heels of the President’s request for two billion dollars of additional resources to enable his administration to quickly and expeditiously deport the wave of unaccompanied children from Central America that have flooded the border. 
The response to this request has been swift and harsh.
Recently installed American Immigration Lawyers Association President Leslie Holman called the president’s decision “unconscionable” explaining that “rapid deportations without any meaningful hearing for children who are rightly afraid of the violence and turmoil from which they fled is wrong, and contradicts the fundamental values of this nation.”
On social media, former Board of Immigration Appeals judge Lory Diana Rosenberg expressed shock and outrage stating that “the efforts being made to ignore our protection obligations and to eliminate the due process rights of children from Central America - to have a credible fear examination, to be considered for humanitarian parole, to be reunited with parents and family in the U.S. is abominable, cruel and inhumane.”
Unfortunately, the President’s desire to rapidly deport children without due process isn't the only thing his administration is doing that is cruel and inhumane. A complaint has recently been filed on behalf of 116 unaccompanied immigrant children ages five to seventeen alleging torture, abuse, and mistreatment by agents of the Obama administration while being held in the custody of U.S. Customs and Border Protection.
Examples cited include physical abuse and beatings, sexual assault, racist and sexist insults, death threats, denial of urgent medical care and medication, theft, prolonged sleep deprivation, extended exposure to excessively cold temperatures, and the employment of tight metal restraints to inflict pain into wrists and ankles, as well as the denial of adequate food and water. This is the Obama administration's Abu Ghraib, only the abuses are on U.S. soil, and the tortured are children.
Suffice it to say the president doesn't need Republicans to act on immigration reform to clean up the mess in his own house, and he certainly doesn't need the rest of the summer to ensure the abuses are eliminated, and the abusers prosecuted.
The bottom line is that this President has been dragging his feet to provide deportation relief under the pretext that he was allowing the Republicans to act, when it has become blatantly obvious that they never had any intention to pass immigration reform. Betting on them was as much political folly as it is political suicide because unless the President enacts bold measures that provide deportation relief to the majority of the undocumented population you can rest assured that the Hispanic electorate will not come out to support his party this fall. 
What Mr. Obama doesn't seem to comprehend is that Latinos have long figured out that immigration has always been about politics to this President, and they simply are tired of waiting while their communities are destroyed.

Thursday, April 3, 2014

The Untenable Cost Of Doing Nothing On Immigration Reform

The following was originally published on Fox News Latino:

This past week House Democrats introduced a discharge petition, which if successful would force a vote on previously stalled immigration reform legislation. Most acknowledge that the strategy has been employed for the singular purpose of shaming House Republicans for their inaction on immigration reform, and has virtually no chance of success. In sum, Democrats are engaging in thinly veiled political gamesmanship motivated by the desire to score points in advance of the midterm elections. Most see through the charade.

Cristina Jiménez, Managing Director of UnitedWeDream.org, the nation’s first and largest national immigrant youth-led organization, has outspokenly scolded House Democrats for chasing rainbows while refusing to press President Obama to stop his record deportations. Ms. Jiménez observed that this is nothing more than a distraction, stating “political maneuvers like the House Democrats' discharge petition are just getting in the way.” 

Immigrant activist Erica Andiola of the DRM Action Coalition agrees, commenting that it is unconscionable to use the lives of millions of undocumented immigrants for political gain. Both agree that President Obama’s two million deportations have created a human rights crisis of epic proportions, demanding immediate action by the Executive Branch. They explain that the immigrant community can no longer wait for the Republicans in Congress to get their act together.

The Immigration Policy Center’s Walter A. Ewing brings credence to their argument, acknowledging the hypocrisy of the Obama Presidency in a report tracking the growth of the U.S. deportation machine. He points to the administration’s conscious expansion of detention and deportation as a major point of contention, reflecting that "rather than putting the brakes on this non-stop drive to deport more and more people, the administration chose to add fuel to the fire."

The Pew Research Center’s Hispanic Trends Project has also chimed in releasing a report that found that the deportation machine has been fed by a vast increase in federal criminal prosecutions for immigration related crimes, which has changed the landscape for Federal prosecutors. It did not go unnoticed that at 48 percent, Hispanics make up the bulk of those prosecutions. 

Meanwhile, Syracuse University’s Transactional Records Access Clearinghouse (TRAC) sifted through the numbers finding that in 2013 there were nearly 100,000 prosecutions for immigration related crimes, an all-time high. TRAC determined that new prosecutions were filed against 97,384 defendants, a 5.9 percent increase from 2012, and a 22.6 percent increase over the past 5 years, resulting in a 76 percent increase in federal criminal prosecutions for illegal reentry since President Obama took office. 

What this translates to is that the Obama administration has made a strategic decision to turn an unprecedented number of immigrants into convicted criminals when their only criminal infraction stems from an immigration law violation. In sum, they have been found guilty for doing everything in their power to try to get back to their family. This policy change has resulted in a padding of the criminal removal statistics that the administration touts in an effort to deflect scrutiny from their 2 million deportations. And at what cost?

Customs and Border Protections’ Fiscal Year 2013 budget was $11.9 billion. Immigration and Customs Enforcement’s budget was increased to $5.9 billion. Another $2.9 billion was spent by Enforcement and Removal Operations in FY 2012. That’s not pocket change.

It is time to acknowledge that tax paying American citizens can no longer afford to continue writing checks to fund an out of control deportation machine that is disproportionately targeting people of color. Especially since passing immigration reform will actually save the country money. The Congressional Budget Office determined that immigration reform will result in almost a trillion dollar reduction of the nation’s deficit during the next two decades in addition to yielding long term benefits to American workers and the economy. Now we are speaking a language that even the most partisan Republican can understand.

Case in point, perennial budget hawk Rep. Paul Ryan (R-Wis.) has recently acknowledged the inevitability of immigration reform stating reform is a question of when, not if. The problem he notes is that there aren’t enough Republican votes to reach a consensus on the issue. The clock is ticking, Congressman.

In fact, the time has long passed for hyper-partisans on both sides of the aisle to put down their midterm elections swords. Americans are tired of excuses and gamesmanship. Doing nothing to address our immigration crisis to score political points is simply an untenable strategy that is emptying our nation’s coffers while destroying families. It is a strategy that must be abandoned in favor of the adoption of common sense solutions. 

Monday, March 31, 2014

Activists: We Want An Emancipator, Not A 'Deporter In Chief'

Via NPR:

"Activists who support an overhaul of the immigration system are angry and frustrated. The immigration bill that passed in the Senate in June is stalled out. Meanwhile, the Obama administration is on pace to deport some 2 million illegal immigrants since taking office six years ago."