Monday, January 28, 2013

Now is the Time for Comprehensive Immigration Reform


Contributed by Melanie Corrin, Senior Attorney.
One of the main lessons that came out of the Presidential elections last year was that Immigration Reform is a far more important subject to the public than many considered.  Exit polls show huge majorities of Latino and other immigrant citizens voting for President Obama, in hopes of a continued promise of reform; a majority that very easily could have tipped the election in another direction.
With that in mind, leaders across the country have been working together to find an approach that will not only continue to strengthen our borders, but also repair a broken system that is simply not workable in today’s global economy.  The main issues with bills of the past is that while there was some immediate relief available to those that were present and undocumented, not enough attention was paid to the realities of immigration and therefore bills were passed with unreasonable restrictions on the ability of people to legally immigrate to the United States.
The current administration has shown its commitment to enforcement over the last four years, with more individuals being deported from the United States than any other presidency; more than 400,000 in 2012 alone.  http://www.ice.gov/removal-statistics/.  With this in mind, the administration has also placed its enforcement priorities where they count, with criminal aliens and those with previous immigration violations and deportations at the head of the pack.

What no one has substantively addresses, until now, was how to fix our laws so that we do not continue with draconic provisions that do nothing but hurt our economy and hinder family unity.  The “Gang of 8” proposes to change that.  Senators Schumer, McCain, Durbin, Graham, Menendez, Rubio, Bennet, and Flake have announced a Bipartisan Framework for Comprehensive Immigration Reform, which they hope to address the broken immigration system, as well as the estimated 11 million undocumented individuals currently present in the United States.

Thus far, the group has outlined four basic Legislative pillars:

  • Create a tough but fair path to citizenship for unauthorized immigrants currently living in the United States that is contingent upon securing our borders and tracking whether legal immigrants have left the country when required;

  • Reform our legal immigration system to better recognize the importance of characteristics that will help build the American economy and strengthen American families;

  • Create an effective employment verification system that will prevent identity theft and end the hiring of future unauthorized workers; and,

  • Establish an improved process for admitting future workers to serve our nation’s workforce needs, while simultaneously protecting all workers.

As the days and weeks progress, our hope is that legislation is drafted that can address these concerns and pass this year.  Now is the time to take stock of the problems that are truly present, face the difficult questions, address the deficiencies in current law and develop an actual system that works for the United States and does not continue to create a shadow population.  Now is the time for comprehensive immigration reform!

DACA Applicants: Guidelines for Meeting the Education Requirement


Contributed by Jennaweh Leyba, Attorney

Deferred Action for Childhood Arrivals (“DACA”) has and continues to be a promising resource for young immigrants. Those with an approved DACA application will obtain deferred action for two years, subject to renewal for an indefinite period of time, and will be eligible to apply for work authorization. In order to be considered for deferred action for childhood arrivals, you must submit evidence, including supporting documents, to show that you:

    1.     Were under the age of 31 as of June 15, 2012;
2.     Came to the United States before reaching your 16th birthday;
3.     Have continuously resided in the United States since June 15, 2007, up to the present time;
4.    Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
5.     Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
6.     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;
7.     Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

For individuals who did not complete high school, DACA is not out of reach. There are options to obtain a valid high school diploma online. However, while there are many options for obtaining online high school diplomas, not all of them are legitimately accredited and thus, may not be recognized by USCIS for adjudication of the DACA application. To help ensure that an online high school is accredited you can refer to the following resources to obtain information on online high school programs as well as accreditors who are recognized by the Department of Education:

1.     U.S. Department of Education – The U.S. Department of Education website has a database to search for both accredited institutions and accreditors that are recognized by the government. You can search for your school or your school’s accreditor in their online database.

2.     State Department of Education – The Colorado Department of Education website has a list of online schools and programs to choose from depending on where you reside and what type of program most accommodates your current schedule.


Additionally, DACA applicants may be enrolled in a GED program or have obtained a GED to be eligible for deferred action. However, please be aware that the GED test cannot be completed online. The GED test can and will only be administered in person by GED Testing Centers that are authorized by the national GED Testing Service and approved by the Department of Education.

If you meet all other requirements but did not finish high school, you can still attain eligibility.  To discuss your options contact Joseph Law Firm, P.C. at 303-297-9171 or 719-434-5660.
 

Friday, January 25, 2013

More than a DREAM: Immigration Reform For All

Contributed by Bryon Large, Senior Attorney

It’s a very exciting time in immigration law, watching the debate over immigration reform heat up again.  Voices from many sides are chiming in to get their ideas on the wish list for immigration reform.

 There appears to be enough support and desire to have a more expansive and comprehensive reform package.  Rather than piecemeal fixes of the current framework of the law, such as the DREAM Act or AgJOBS, both critical pieces of legislation, many immigration scholars are anticipating a much larger reform package that would include many or most non-criminal undocumented immigrants currently in the United States.  Also expected are more expansive enforcement tools against criminal aliens, repeat immigration violators and those committing immigration fraud.

 Most scholars agree that the enforcement tools for unlawful presence that were found in major overhauls like IIRAIRA in 1996 have done a lot to contribute to the lack of documents to certain individuals.  Most people who have spent more than a year in the United States and departed find themselves with a ten-year bar from returning to the United States, such as when they return to their home countries for their immigrant visas.  Those that seek to reenter unlawfully find themselves permanently barred from returning to the United States, as well as ineligible to solicit a hardship waiver for at least ten years.  When family unity is an immigrant’s highest priority, as is typical, such harsh and unforgiving bars only contribute to the growing number of undocumented people.

 There are a number of quick and easy solutions that can be passed in immigration reform.  Obvious tools like the DREAM Act will help a number of America’s youth that find themselves trapped in a country that has little to offer them without basic documentation.  But the DREAM Act will do little to stabilize their parents’ lives, or assist in providing for their younger siblings.

 A comprehensive immigration reform should include some basic tools for the documentation and normalization of people who have come to America and grown roots in this country.  From an enforcement perspective, we should be preoccupied with the fingerprinting of applicants and doing our best to remove violent and dangerous criminals, as well as those that destabilize America’s security situation, such as terrorists, drug traffickers, violent gang members, and arms traffickers.

 Easy fixes to add to the immigration wish list might be:

 

·         Elimination of the ten-year bar.  This is one of the greatest obstacles of our current immigration system.  Although the new provisional waiver or stateside waiver process will alleviate the extended periods of processing outside of the United States, as well as the costly waiver process and requirement to demonstrate that an immigrant’s citizen or resident spouse or children would suffer an “extreme hardship” if the waiver were not granted.  Note that the waiver does not look to the immigrant’s children born in the United States.

 

·         Elimination or reform of the Permanent Bar.  It’s been called the death penalty for jaywalking.  Perhaps it’s more complex than that, but typically the second unlawful entry to the United States since the implementation of IIRAIRA would create a permanent bar to admissibility in the United States.  Otherwise stated, a person who makes a second unlawful entry to the U.S. following one year of unlawful presence is no longer eligible for an immigrant visa (green card).  Even harsher, that immigrant must spend at least ten years outside of the United States before even requesting a hardship waiver.  There is no doubt that repeat immigration violators are held to a higher standard.  Many would argue that this is rightfully so.  But regardless of the views on this, we must also look to how difficult laws such as IIRAIRA have contributed to the undocumented problem we now have.  Long gone are the days where someone could get a green card by simply marrying a United States citizen.

 

·         Assistance for Same-Sex Couples.  Many immigration scholars are sitting on the edge of their seats waiting for the Supreme Court to rule on Section 3 of the Defense of Marriage Act (DOMA).  Section 3 states that the federal government will only recognize a marriage between one man and one woman.  For immigration purposes, those couples married in jurisdictions that permit same-sex marriage cannot apply for the same immigrant benefits that their opposite-sex counterparts more easily qualify for.  Passage of a law similar to the Uniting American Families Act (UAFA) would eliminate the discrimination of our marriage-based family immigration system and open the channels of immigration to couples in long-term permanent relationships.  An interesting side note:  Our non-immigrant visa system already gives recognition to permanent partners traveling to the United States on valid employment visas in many cases.

 

·         Moving the Registry Date.  Registry is a benefit that has appeared extensively throughout the history of immigration and nationality law in the United States since 1929.  It is based on the idea that someone who has lived in the United States for a specific period of time should have the opportunity to apply for a green card.  Historically, the registry date was updated with immigration and naturalization reforms, and tended to be ten to twenty years behind the current date.  For example, when IRCA passed in 1986, Congress saw fit to update the registry date to January 1, 1972, some 14 years prior to IRCA.  Essentially, anyone that could demonstrate they have been present since that date can apply for permanent residency in the United States.   Unfortunately, Congress has not saw fit to update this date since the passage of IRCA in 1986.  It is highly unusual for our registry date to be 41 years behind the current date.  Updating the registry date to a more reasonable timeframe would do wonders to further the stability of those present in the United States for and extended period of time.

 

·         Waiving “Deal-breakers.”  There are a number of deal-breakers in immigration law today, particularly attributable to IIRAIRA.  While they seemed like an excellent idea to curb illegal immigration at the time, they have only served to trap people in the United States without immigration documents, leading to restrictions on driving and other identity-type issues.  Nobody would argue that making a false claim to United States citizenship for the purposes of gaining an immigration benefit should be considered a “no-no.”  However, IIRAIRA assures that anyone who falsely says they are a United States citizen is no longer eligible for any immigration benefit.  There is no waiver for this false statement.  Making a false claim to citizenship, for example, when filling out paperwork on the first day of a new job, would render an immigrant forever ineligible for a green card, without exception and without a manner to seek forgiveness.  Placing a statute of limitations on the false claim, or providing a waiver for hardship or family unity purposes would alleviate this unforgiving restriction.

 And, naturally, many scholars expect to see some serious tightening of immigration laws, expanding deportable offenses, and making it more difficult for some people to immigrate to the United States.  Many of us expect to see some of the following:

 

·         Stricter Standards for Waivers. While waivers can oftentimes seem difficult enough to achieve at their already high standards, many immigration practitioners expect the hardship requirements for many waivers to increase.  Many practitioners also expect to see waivers required more often and for more issues than we currently see.

 

·         Less Judicial Review.  The United States Constitution permits the Congress to strip the federal courts of jurisdiction to review nearly any type of review of an agency’s actions.  In the immigration context, IIRAIRA and various other laws have limited the federal judiciary’s ability to review immigration decisions made by the Department of Homeland Security or the Department of Justice.  Many practitioners wholeheartedly expect to see more limits on federal judges’ authority to review immigration decisions.  Ironically, such action is a surprising limitation on a free and independent judiciary that upholds and guarantees the similar types of freedoms many immigrants arriving on our shores seek.

 

·         Tighter Enforcement for Criminal Aliens.  Most practitioners agree that expanded definitions for deportable criminal acts will be a part of any immigration reform.  Currently, aggravated felons are deportable without exception and without waiver, regardless of how much time they have spent in the United States and without consideration of family ties and the hardships that family might suffer should they be deported.  We expect the list of aggravated felonies to be expanded to include more types of crimes.  For example, in the last reauthorization attempt of the Violence Against Women Act (VAWA), there was a provision making three DUI’s equal an aggravated felony, and that provision was set to be retroactive.  We expect to see very similar language in any immigration reform.

 Clearly, it’s not only the undocumented youth that are DREAMing.  There are millions of people that need a path to stability and, eventually, residency.  And those advocating for stronger immigration enforcement also have their wish lists, as well.  It’s an exciting time to be watching immigration law.  As this all unfolds in the coming months, it will be exciting to watch what fate holds for the millions of undocumented immigrants in the United States.

Friday, January 4, 2013

BREAKING NEWS: USCIS PUBLISHES NEW WAIVER FILING RULES

On January 3, 2013, the U.S. Citizenship and Immigration Services (USCIS) published a final rule changing the way people who are inadmissible to the United States for accruing unlawful presence file for a pardon or “waiver” of that inadmissibility.  The final rule, published January 4, 2013, allows immediate relatives of U.S. citizens who are physically present in the United States to file provisional unlawful presence waivers prior to traveling abroad for consular processing. The only relatives eligible to file at this time are spouses, children, and parents of United States Citizens. 

USCIS hopes that the new waiver process will decrease the amount of time that families are separated and will encourage more noncitizens to apply for their immigrant visas.  Currently, individuals are required to wait until the consular officer adjudicates their case at interview before they can file for a waiver.  Then, once the waiver application is filed, the individual must wait outside the United States until a final decision is made on their application, almost two years in some instances.  This new process will allow individuals to file the waiver application when the I-130 petition has been approved and the applicant has paid their immigrant visa processing fees at the National Visa Center; allowing the foreign national to hold off on their interview at the consulate until they have (hopefully) an approval of the waiver application.
It is important to note that this process is only available to individuals who are inadmissible for unlawful presence and not any other section of the Immigration & Nationality Act; only for immediate relatives of United States Citizens and therefore not relatives of lawful permanent residents; and it is not available to individuals who are currently in removal proceedings. 

Please contact your attorney or schedule a consultation if you want to know more.

-Melanie Corrin, Senior Attorney