Undocumented Spouses of Citizens May Apply for Parole Starting August 19

 

The Biden Administration has announced that, starting August 19, eligible spouses of U.S. citizens will be able to submit applications to apply for benefits pursuant to the recently announced parole in place (PIP) program.  Initially they will be eligible for three years of employment authorization (EAD).  Within this time period, they may also apply for a green card through adjustment of status. 

This parole program was anncouned by the Biden Administration earlier in June of this year.  The purpose is to offer an opportunity for long time spouses of U.S. citizens to be able to obtain legal status without having to depart the United States and be seperated from their family.  Under current immigraion regulations, a person who has entered the United States illegally without a formal inspection and admission by an immigration officer is not allowed to be legalized, even though the person has married a U.S. citizen.  These individuals typically must depart the U.S. and apply for an immigrant visa to return.  Due to their previous immigration violations, it is generally very difficult for them to get a visa. They may first apply for visa waivers or other discretionary relief. 

Starting August 19, 2024, this group of spouses of U.S. citizens may begin submitting applications to apply for parole status in the United States.  If approved for parole in place, the non-citizen spouses will then be permitted to apply for lawful permanent residence within the United States through the adjustment of status process. 

Further details for the application process should be announced in a Federal Register notice soon.  To qualify for parole status, an applicant: 

• Must be present in the United States without admission or parole;
• Must have a legally valid marriage to a U.S. citizen as of June 17, 2024;
• Must be continuously present for at least 10 years as of June 17, 2024;
• Must have no disqualifying criminal history or national security/public safety concerns; and
• Must otherwise merit favorable discretion by DHS.

It should be noted that certain non-citizen children of this group of spouses may also be eligible for benefits under this parole program.  To qualify, a child must be unmarried, under the age of 21, and have been physically present in the United States without admission or parole and have had a qualifying stepchild relationship with the U.S. citizen, both as of June 17, 2024.  Further, the child must have been under the age of 18 at the time of the marriage that created the stepchild relationship.

Applicants must wait for further instructions before they may submit their applications for parole starting August 19.  However, eligible applicants should start collecting supporting documents as soon as possible to get ready.  These documents include their passports, ID documents, marriage certificates, birth certificates, proof of 10 years of physical presence, federal income tax returns, school records, medical documents, etc.   If they have been arrested for any reasons, they must provide documents regarding the final disposition of the case. 

This program can be described as an "once in a life time opportunity" for hundreds of thousands of applicants to be legalized.  Eligible applicants should take it seriously and make every efforts to submit a legally sufficient application.  If in doubt, they should consult with an experienced immigration attorney for further information. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Biden Proposes US Citizenship Act of 2021

President Biden has promptly proposed a sizeable bill that would overhaul current immigration policy. The bill, US Citizenship Act of 2021, focuses on improving protection and assistance for families and vulnerable migrants such as asylum seekers.  It also emphasizes family reunion, attracts foreign skilled workers, and protects children from aging out.  Below is an overview in outline format.  (Note: This is only a proposal and has not been passed into law. )

Path to Citizenship

1) Undocumented immigrants can apply for temporary status and then for their green card after 5 years if they pass background checks and pay taxes.

2) Temporary Protected Status (TPS) individuals, DACA Dreamers, and certain farmworkers physically present in the U.S. on or before January 1, 2021 will gain permanent residence immediately.

•     They can then apply for citizenship after 3 years.
•    The physical presence requirement can be waived for those deported on or after January 20, 2017 and who were physically present for at least three years before removal.

Family-Based Immigration

1) Per-country visa caps will be increased and unused visas recaptured.

2) Family members with approved petitions can enter and wait in the U.S. for a visa number to become available. 

3) Gets rid of the 3 and 10-year bars and similar rules. 

4) Explicitly includes permanent partnerships and LGBTQ+ families. 

5) Protects orphans, widows, children, and Filipino veterans who fought alongside the United States in World War II.

Employment-Based Visas

1) Eliminates per-country visa caps and recaptures unused visas.

2) Secures Employment Authorization Document (EAD) for H-4 dependents.

3) Facilitates foreign graduates with advanced STEM degrees to stay in the United States.

4) Improves access to green cards for workers in lower-wage sectors.

5) Protects children from "aging-out" for immigration benefits.

6) Authorizes DHS to adjust green cards issuance based on macroeconomic conditions, and incentivizes higher wages for non-immigrant, high-skilled visas.

Foreign Worker Protections

1) Grants victims of labor violations easier access to U visas.

2) Protects workers from deportation as a form of workplace retaliation.

3) Increases penalties for employers violating labor laws. 

Diversity Visas (Visa Lottery)

1) Increases diversity visa numbers from 55,000 to 80,000.

Border Protection and Accountability

1) Increases accountability of Customs and Borders Patrol (CBP) officers conduct.

2) Directs Government Accountability Office (GAO) to investigate DHS' authority to bypass environmental and state law when building walls.

3) Increases funding for officer training and standardizing proper treatment of people in custody.

4) Makes it easier to prosecute criminals in smuggling and trafficking rings that take advantage of migrants.

5) Increases intelligence efforts and sanctions on narcotic traffickers and their associated groups

6) Promotes anti-gang task forces in Central America.

Protections for Asylum Seekers and Others

1) Reduces asylum backlogs through funding.

2) Eliminates one-year deadline to file asylum claims.

3) Increases U visa cap from 10,000 to 30,000. 

4) U, T, VAWA visa applicants and those that assist U.S. troops gain more protection.

5) Gives immigration judges and adjudicators more discretion to review cases and grant relief.

6) Creates processing centers in Central America to help settle displaced people.

7) Funding for government and NGOs programs to help integrate displaced migrants.

This most notable part of this proposal is the opportunity of permanent residence and citizenship that would be available to undocumented, DACA, and TPS migrants. 

Of course, the proposal has to pass through Congress first -- and if it does, the final version will likely be much different. Conservative Congressional members are expected to oppose or block the proposal especially in regards to the "legalization" or "amnesty" provisions. 

Biden's Aggressive Plan for Path to Citizenship for Undocumented Immigrants

Even before taking office, the Biden administration already unveiled a plan aimed at legalizing the undocumented immigrants in the United States. 

The details of Biden's plan have not been released yet. Broadly speaking, it proposes granting the over 11 million undocumented immigrants permanent residence. The path to citizenship would also be shortened to eight years: permanent residence eligibility would be after 5 years and citizenship eligibility after 3 years. 

Essential workers in particular who provided valuable services during the pandemic would be granted permanent residence. Additionally, those with Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS) would be able to gain permanent residence and later citizenship. Biden has stated that he intends to not only restore DACA but also ask Congress to make it permanent. The President and his Vice President have also denounced the treatment of asylum seekers at the border. Policies such as making asylum seekers wait in Mexico while their case is processing are expected to be abolished. 

In order for the undocumented immigrants to obtain legal status under the Biden proposal, they would be required to pay taxes, pass background checks and to pay fines. Individuals with a criminal background would not be eligible. Biden also requires them to be living in the US as of January 1, 2021. 

Biden's bold immigration plan will likely be challenged by the divided Congress.  It would be difficult to get enough support from Congressional members to pass such an ambitious bill. Compromises will likely be made by toning it down to appeal to more Republicans  so that it can be passed.  Still, by aiming high, Biden has made it clear that immigration reform will be a major focus of his administration from the beginning. 

Senate passed S.744 CIR 68-32!

Today the Senate passed S. 744, the "Border Security, Economic Opportunity, and Immigration Modernization Act," as a milestone in the road to Comprehensive Immigration Reform.  

Highlights of Senate's new Comprehensive Immigration Reform Bill

The U.S. Senate finally releases its version of a Comprehensive Immigration Reform (CIR) bill today.  The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 proposes to reform many aspects of the current immigration policy, including the creation of a new Registered Provisional Immigrant Status (RPI) for the undocumented immigrants. The prerequisite is that the border must be secured first before any RPI petition will be approved. The following are the highlights of the most important proposed changes:

Family-sponsored Immigration

• Reduce the current four family preference categories to two categories only: Unmarried adult children (of U.S. citizens); married adult children (of U.S. citizens) who file before age 31, and unmarried adult children of lawful permanent residents. 

• Lawful permanent residents will be able to petition for their spouses and minor children (currently F2A) without regard to visa numbers – just like U.S. citizens can do now.

• The current F4 preference category will be eliminated 18 months after the law is enacted – meaning that U.S. citizens will no longer be able to petition for their brothers and sisters.

• The Diversity Visa Program (“Visa Lottery”) will be eliminated after FY2014.

Employment-sponsored Immigration

• Spouses and children of EB applicants will no longer use up visa numbers – meaning that a lot more employment-based visa numbers will be freed up for use!

• All employment first preference categories will also be exempt from the annual visa limits including EB-1A Extraordinary Ability Aliens, EB-1B Outstanding Researchers and Professors, and EB-1C Multinational Company Executives and Managers 

• Doctorate degree holders and some physicians will also be exempt from the annual visa cap.

• Also exempt from visa quota are individuals with a master’s degree or higher in a STEM (science, technology, engineering or mathematics) field from an accredited U.S. institution and have an offer of employment in a related field and the qualifying degree was earned in the five years immediately before the petition was filed. (Current EB-2 STEM applicants.)

• The annual employment-based visa limit will be allocated as follows:

• The Bill will create a startup visa for foreign entrepreneurs to startup their own companies.

• A Merit-Based Visa (MBV) program will be created in the 5th year after law was passed.  Similar to the Canadian system, the MBV awards points to individuals based on their education, employment, length of residence in the US and other considerations. Annual quota will be 120,000 visas, which can be increased by 5% per year if demand exceedssupply in any year where unemployment is under 8.5%. The total number of visa will be capped at 250,000.

• The MBV can also be used beginning on October 1, 2014 for employment-based visas that have been pending for threeyears, family-based petitions that were filed prior to enactment and have been pending for five years, long-term alienworkers and other merit based immigrant workers.

• Based cap will be raised from  65,000 to 110,000.

• For U.S. advanced STEM degree holders, cap will be raised from 20,000 to 25,000.

• In future years, the cap can go as high as 180,000 based on a demand index.

• Spouses of H-1Bs will be allowed to work if their country of origin allows spouses of U.S. citizens to work.

• A 60-day transition period will be allowed for H-1B workers to change jobs.

• Dual intent visas will be created for all students who come to the U.S. to pursue a bachelor’s or higher degree.

• H-1B dependent employers will have to pay significantly higher wages and fees than normal users of the program.

• The job must be posed online for 30 calendar day before an H-1B petition can be filed.

• The “amnesty” part of the proposal allows folks in unlawful status to adjust their status to the legal status of Registered Provisional Immigrant Status. (RPI)

• Eligibility Criteria:

• Spouses and children, if already in the U.S., are also allowed to apply.

• Immigrants in RPI status can work for any employer and travel outside of the United States.

• Those who were present in the U.S. before December 31, 2011 but were deported for non-criminal grounds may also apply, if their parent, spouse or children are U.S. citizens and/or legal residents.

• RPI status shall last for a 6-year term that is renewable if the immigrant does not commit any acts that would render thealien deportable.  Another $500 penalty fee is due.

• After 10 years, aliens in RPI status may adjust to Lawful Permanent Resident Status through the same Merit Based Systemeveryone else must use to earn a green card if they maintained continuous physical presence, paid all taxes, learn English and Civics, etc.

• A new visa program for foreigners to work in low-skilled jobs in the U.S.

• Both the employer and the position must be registered.

• Spouses and minor children will also be allowed to come for the same duration and authorized to work.

• Workers must not be inadmissible, have no criminal background, and agree to accept only registered positions in the US.

• Approved for three (3) years initially, and extendable for another three (3) years.

• Employers must pay market wages.

• Each registered position must be posted for 30 days first on the internet.

• There will be annual visa caps beginning April 1, 2015

-        Professionals holding advanced degrees or their equivalent whose services are sought in the sciences, arts, professions, or business by an employer in the United States (including certain aliens with foreign medical degrees), and individuals with a master’s degree or higher in a STEM (science, technology, engineering or mathematics) field from an accredited U.S. institution and have an offer of employment in a related field and the qualifying degree was earned in the five years immediately before the petition was filed. (40%)

-         Skilled workers, professionals, and other professionals. (40%)

-         Special immigrants (10%)

-        Employment creation or investor visa (10%)

H-1B Program

Legalization Program for the Undocumented Immigrants

-        Residence  in  the  U.S.  prior  to  December  31,  2011  and  maintenance of continuous physical presence since then;

-        Paid a $500 penalty fee (except for DREAM Act eligible students), and assessed taxes, per adult applicant in addition to all regular fees;

-        Have not been convicted of an aggravated felony, a felony, or 3 more misdemeanors, or an offense under foreign law; unlawfully voted; or found inadmissible for Criminal, National Security, Public Health, or other morality grounds.

 W Visa - Temporary Work Program

(Note: The above is only a proposal and has no legal effect until it is signed into law.)

Understand and get ready for Comprehensive Immigration Reform (2)

The White House has released a fact sheet for its version of Comprehensive Immigration Reform.  The following is a summary of the plan:

The White House and the President recognize that reforming our broken immigration system requires responsibility from the 11 million people living in the shadows and from the employers who hire illegal workers.  The new plan must also guarantee that everyone is playing by the same rules.  The four key principles the President Obama’s plan include:

Continuing to Strengthen Border Security

Though the number of Border Patrol agents has been doubled since 2004, the President’s new proposal will further strengthen and improve infrastructure at ports of entry, and continues supporting use of technologies to secure land and maritime borders. It will create new criminal penalties to combat transnational criminal organizations in drugs, weapons and money trafficking, and human smuggling across the borders. It also includes tough criminal penalties for trafficking in passports and immigration documents and schemes to defraud. The U.S. Department of Homeland Security (DHS) will establish border community liaisons along the Southern and Northern borders to improve communication and collaboration with border communities.

Cracking Down on Employers Hiring Undocumented Workers

Our businesses should only employ people legally authorized to work in the United States. The President’s proposal is to stop the practice of knowingly employing undocumented workers and hold those companies accountable. The proposal provides tools for employers to ensure a legal workforce by using federal government databases to verify the eligibility of their employees to work in the United States. Penalties for hiring undocumented workers are significantly increased. The proposal also mandates a fraud‐resistant, tamper‐resistant Social Security card to prove authorization to work in the United States. The proposal will also protect workers against retaliation for exercising their labor rights by creating a “labor law enforcement fund” to ensure that industries comply with labor laws.

Earned Citizenship

Since it is not practical to deport 11 million undocumented immigrants living within our borders, the President’s proposal provides undocumented immigrants a legal way to earn citizenship. This proposal requires undocumented immigrants must come forward and register, submit biometric data, pass criminal background and national security checks, and pay fees and penalties before they will be eligible for a provisional legal status. Individuals must wait until the existing legal immigration backlogs are cleared before getting in line to apply for lawful permanent residency (i.e. a “green card”), and ultimately United States citizenship. Consistent with current law, people with provisional legal status will not be eligible for welfare or other federal benefits. As under current law, five years after receiving a green card, individuals will be eligible to apply for U.S. citizenship like every other legal permanent resident. An individual whose provisional lawful status has been revoked or denied, or whose application for adjustment has been denied, will have the opportunity to seek administrative and judicial review of those decisions.

Streamlining Legal Immigration

The proposal seeks to eliminate existing backlogs in the family-sponsored immigration system by recapturing unused visas and temporarily increasing annual visa numbers. It also raises existing annual country caps from 7 percent to 15 percent for the family-sponsored immigration system.  The proposal also eliminates the backlog for employment-sponsored immigration by eliminating annual country caps and adding additional visas to the system.  (These changes, if implemented, will significantly speed up the waiting time of immigrant petitions for countries such as China, India, Philippines and Mexico.)  The proposal encourages foreign graduate students educated in the United States to stay here and contribute to our economy by making it easier for advanced degree holders in science, technology, engineering and mathematics (STEM) from qualified U.S. universities to obtain a green card.  Similarly, the proposal will also provide visas to foreign entrepreneurs who plan on starting businesses here and hiring U.S. workers.  

Understanding and Getting Ready for Comprehensive Immigration Reform (1)

As the economy appears to be recovering, the November elections seem far behind us, and the issues having been discussed so many times from all possible angles, the time is finally ripe for Comprehensive Immigration Reform (CIR).  Although any CIR plan will likely encounter resistance in Congress from conservatives, a bipartisan group of senators including former presidential candidate Republican John McCain recently came together and jointly announced a plan to overhaul our immigration system and provide a mechanism for the estimated 11 million of unauthorized immigrants living in the U.S. a chance to be legalized.  Almost simultaneously, the While House also announced its own plan to overhaul the current immigration system.  While the details of these CIR plans are not yet available, there are some principals and priorities common to these proposals. 

Border Security: First of all, everybody seems to agree that a prerequisite to CIR is border security.  Although after the 911 attacks and the establishment of the Department of Home Security, tremendous amount of resources and funding have already been allocated for border security.   The issue will likely be under the spotlight again.  Most hi-tech equipment and system will be deployed to safeguard our borders and ports of entries.  New entry and visa requirements will also likely be proposed for foreign visitors.

Hurdles to Legalization:  The media likes to label any CIR as “a path to U.S. citizenship” or “a way to become American citizens.”  True, if immigration reform materializes, many unauthorized individuals will eventually be able to acquire U.S. citizenship.  However, what is being left out in the news reports is “when” and “how” these individuals may be able to do that.  Realistically, the road to getting a U.S. passport will prove to be long and winding for the undocumented.  For instance, there is always a threshold of time before which a foreign must be present in the U.S. in order to apply for legalization.  The policy is to discourage any newcomers from trying to enter the U.S. after the plan is announced.   But no matter what date we set for grandfathering, there will always be a group of individuals who would not make the cut.  Then the question becomes: What do we do with them?  Other than entry requirements, the usual requirements for permanent residence status (“green card”) will likely be used in any CIR proposal.  So for instances, individuals who have a criminal background including demeanors and DUIs, prior immigration violations, contagious deceases, etc., may not be eligible for legalization.

Changing the Legal Immigration System:  It is also clear that any new proposal will also require unauthorized individuals to wait in line for their turn for a green card.  Currently, legal immigration in many preference categories is seriously backlogged, making the waiting time for an immigrant visa extremely long.  Fortunately, in almost all CIR discussions, revamping the current legal immigration system is also under consideration.  For example, one proposal is not to count the dependents (spouses and children) when counting the visa number usage.  So a family of three will only use up one visa number instead of three.  Granting foreigners with advance technology and science degrees special visas is also part of the consideration.  The unauthorized individuals will become direct beneficiaries of these changes in the legal immigration system.

Sanctioning Employers:  Any CIR proposal will also likely contain provisions that punish U.S. employers who hire unauthorized workers.  In fact, President Obama’s proposal specifically mentions about this issue.  What is interesting is that there already exists laws and regulations in the area of employer sanctions.  Enforcement of these laws is sometimes relaxed due to political and other considerations.  One way to ensure compliance is through a computerized verification system such as E-Verify.  Currently, use of the system is voluntary.  It is possible the new CIR plan will make it mandatory for employers to use the system to verify status of all employees.   However, any new changes will also have to be balanced with the additional financial and administrative burden imposed on employers, since economic recovery is still our nation is top priority.

USCIS Begins Accepting Deferred Action Applications for Childhood Arrivals on August 15, 2012

The USCIS announced that it will begin accepting applications, effective August 15, 2012, for consideration of deferred action for childhood arrivals.   The Deferred Action program was announced by the DHS Secretary on June 15 to allow certain young people who came to the United States as children to apply for permission to stay and work in the United States.

The requests for Deferred Action should be made through the filing of the new I-821D form recently published by the USCIS.  Eligible applicants must also submit all required documents and evidence to prove their eligibility.  To qualify as a “Childhood Arrival” under this program, the applicant must meet the following criteria:

• Was under the age of 31 as of June 15, 2012;
• Came to the United States under the age of sixteen;
• Entered without inspection before June 15, 2012, or his or her lawful immigration status expired as of June 15, 2012;
• Have continuously resided in the United States since June 15, 2007;
• Was present in the United States on June 15, 2012, and at the time of making his or her request for consideration of deferred action with USCIS;
• Is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
• Has not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety.

Each case will be reviewed on a case-by-case basis.  Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion.  Extensive documents including passports, I-94 forms, school documents, employment documents, medical documents, military documents, sworn statements, etc., must be submitted as evidence of the applicant’s eligibility.

If a person’s Deferred Action application is approved, he or she will not be removed from the United States for a two-year period or subject to renewal.  Further, the person may also apply for employment authorization to live and work legally in the United States.  But it is important to note that Deferred Action does not grant lawful permanent residence status, i.e., green card, to applicants. 

For further information, please contact our office at info@szetolaw.com or 732-632-9888.  Our website is www.szetolaw.com.

Additional information on the Deferred Action Program for youngsters

On June 15, 2012, DHS Secretary released a memorandum authorizing the implementation of a Deferred Action program for young people who came to the U.S. under the age of 16 to be able to obtain temporary legal status.  Since then the DHS has released additional information on this program including the eligibility requirements, implementation process, and other related information.  The following is a summary of the key points:

What are the additional requirements for the Deferred Action Program?

Other than the requirements that the applicant entered the U.S. before the age of 16; attending or graduated from high school or having honorably served in the military; be a person of good moral character, etc., there are a few other additional requirements.  For example, applicants must be 15 years or older before they can apply.  Further, they must undergo a background check.  An individual must prove that he or she has resided in the United States for a least five years preceding June 15, 2012.  However, brief and innocent absences undertaken for humanitarian purposes will not violate this requirement. Finally, if they are subject to a final order of removal, their case will be subject to further review to determine if they are eligible.

How will the new Deferred Action be implemented?

Group1: Individuals who are not in removal proceedings will have to submit a request  for a review of their cases with supporting evidence to U.S. Citizenship and Immigration Services (USCIS).  Individuals may request deferred action if they meet the eligibility criteria.  The USCIS will release additional info on June 18, at their hotline number  1-800-375-5283.
Group 2: Individuals who are in removal proceedings before the Immigration Court or BIA, the Immigration and Customs Enforcement (ICE) will come up with a process to determine applicants' eligibility.   Beginning June 18, individuals may call the ICE hotline at 1-888-351-4024 for more info.

Group 3: Individuals who are in removal proceedings and have already been identified as meeting the eligibility criteria as part of ICE’s case-by-case review, ICE will immediately begin to offer deferred action to them.   

What are the benefits of the Deferred Action program?

Applicants who are granted deferred action will be issued employment authorization document (EAD) with two-year duration.  Renewals of both deferred action and the EAD are allowed.   However, they will not be granted permanent resident status or a pathway to obtaining permanent lawful status. Beneficiaries of deferred action may not bring their spouses and other dependents to the U.S. Each person must meet the requirements individually. DHS has not yet decided whether international travel is allowed after an individual is granted deferred action.

What documents are needed to prove eligibility?

Required documents to prove eligibility include but are not limited to: financial records, medical records, school records, employment records, military records, diplomas, GED certificates, report cards, and school transcripts. To prove an honorable discharge, one may use report of separation forms, military personnel records, and military health records.

What criminal background will render an individual ineligible for Deferred Action?

Individuals who have been convicted of a felony offense, a significant misdemeanor offense, or three or more other misdemeanor offenses not occurring on the same date and not arising out of the same scheme of misconduct are not eligible to be considered for deferred action under the new process. A felony is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year.  A significant misdemeanor is a federal, state, or local criminal offense punishable by no more than one year of imprisonment or even no imprisonment that involves: violence, threats, or assault, including domestic violence; sexual abuse or exploitation; burglary, larceny, or fraud; driving under the influence of alcohol or drugs; 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; or unlawful possession of drugs.

For individuals who do not satisfy the eligibility criteria under this new process, can they still apply under the June 2011 Prosecutorial Discretion Memoranda?

Yes, these individuals may then request an exercise of prosecutorial discretion under the ICE June 2011 Prosecutorial Discretion Memoranda from ICE.  USCIS will not consider requests for review under the ICE June 2011 Prosecutorial Discretion Memoranda. 

Can individuals appeal a denial by ICE or USCIS of their request for an exercise of prosecutorial discretion under the new process?

One may not appeal a denial by ICE or USCIS of their request for an exercise of prosecutorial discretion.  However, ICE and USCIS will develop protocols for supervisory review as part of their implementation of the new process. Individuals in removal proceedings who believe their cases were not correctly handled may contact the ICE Office of the Public Advocate either by phone at 1-888-351-4024 or by e-mail atEROPublicAdvocate@ice.dhs.gov. 

If an individual’s request to USCIS for deferred action is denied, will he or she be placed in removal proceedings?

Under the existing DHS policy, individuals whose requests are denied under this process will be referred to ICE if  they have a criminal conviction or there is a finding of fraud in their request. 

How soon will a decision be made?

USCIS has not released information about the processing time of these requests yet. Stay tune for more information.

What if an individual is about to be deported from the U.S.?

If an individual is about to be deported but believes that he or she can meets the requirements for deferred action, he/she should immediately contact either the Law Enforcement Support Center’s hotline at 1-855-448-6903 (staffed 24 hours a day, seven days a week) or the ICE Office of the Public Advocate through the Office’s hotline at 1-888-351-4024 (staffed 9 a.m. – 5 p.m., Monday – Friday) or by email at EROPublicAdvocate@ice.dhs.gov.   They should also contact a qualified immigration attorney for assistance.

Breaking News: DHS to offer Deferred Action to Dreamers (High School Grads)

(Source: AILA National)

DHS will formally announce this morning that it will offer deferred action to DREAMers.
Preliminary information indicates that eligible applicants must:

• Be 15-30 years old, and have entered before age 16
• Have been present in the U.S. for 5 years as of June 15, 2012
• Have maintained continuous residence
• Have not been convicted of one serious crime or multiple minor crimes
• Be currently enrolled in high school, graduated or have a GED, or have enlisted in the military

The deferred action offer will be available to those in deportation proceedings as well as to those who apply affirmatively.
Two-year employment authorization document (EAD) will be offfered with no limit of renewals.

The White House is expected to make a formal announcement this afternoon at1:15 EST. 

Comprehensive Immigration Reform Bill Introducted in House

A comprehensive immigration reform bill was introduced in Congress on December 15, 2009, by Representative Luis Gutierrez, Democrat of Illinois. Comprehensive Immigration Reform (CIR) has been a hot topic of discussion in Congress since the last presidency. Despite support by President Bush and some Republic members of Congress, no immigration reform bill was enacted. After President Obama took office, he also made CIR a priority on his agenda, although his first year of presidency was preoccupied by an economic crisis, wars in the Middle East, and health care reform.

This bill, like other proposals for CIR, provides an opportunity for the millions of undocumented foreigners in the U.S. to apply for legal status, in addition to strengthening homeland security and beefing up law enforcement. It is a premise of CIR that effective immigration reform must include both law enforcement measures and ways for the undocumented immigrants to be legalized. This bill by Rep. Gutierrez, entitled Comprehensive Immigration Reform for America's Security and
Prosperity Act of 2009 (CIR ASAP), allows qualified undocumented persons and their spouses and children to stay conditionally for six years if they:

(1) Establish they have been in the U.S. illegally before December 15, 2009.
(2) Attest to having made contributions to the U.S. through employment, education, military service, or other volunteer/community service (with exemptions for minors, persons with disabilities, the elderly, or other unusual circumstances).
(3) Pay an application fee and a $500 fine.
(4) Not have any convictions for a felony or for three or more misdemeanors.

This bill allows certain foreign nationals who have been or are in removal proceedings to apply for legalization. Some other immigration bars would also be waived. The applicants will receive a conditional visa and must wait for six years before they would have an opportunity to apply for a green card unless the current visa backlog is eliminated. Their status will not be counted against the current worldwide numerical visa caps.

For those who were brought to the U.S. before the age of 16, they will also be eligible to apply. They will not have to pay fines and would be eligible for accelerated LPR status upon graduation from high school, and completion of two years of college, military service, or employment.

This bill does not require foreigners to return to their home country before they may be allowed to apply for legal status.

As expected, the bill was not welcome by some Republicans in Congress and some conservative Democrats. Their concern is that the new law would generate a large influx of migrants in the already anemic U.S. labor market, which is suffering from a 10 percent unemployment rate. Other critics also express concerns that the bill does not address the future labor demand of the U.S. as it lacks a temporary worker program.

Another major part of the bill aims at the reduction of visa backlog in the current family and employment immigration system. It exempts immediate relatives from the annual cap on the number of immigrant visas, and increases the number of visas which may be issued per country per year.
Qualified workers will be authorized to work after their employment based petition was filed until a visa becomes available. The bill also exempts from skilled worker numerical cap U.S. educated foreign nationals who receive science, technology, engineering and math degrees and other critical workforce graduates. Most importantly, it reclassifies spouses and children of lawful permanent residents as immediate relatives so that they will not have to wait for many years before they can be united.

The other provisions of the bill include more inhumane treatment of refugees and detainees, creation of a Southern Border Security Task Force, modernizing ports of entry, targeting smuggling of illegal immigrants, and enhanced employment verification.

(Warning: A bill introduced in Congress is only a proposed law. It will not take legal effect and become law unless and until it is passed by Congress and signed by the President.)