Monthly Archives: November 2014

5 ways Obama’s executive actions benefit immigrants

President Obama announced, on November 20, executive actions aiming to grant temporary stay to millions of undocumented immigrants, prioritize the deportation of felons, streamline the employment-based immigrant visa system, expand the provisional waiver program, and promote naturalization.

In response, congressional Republicans have threatened to shut down the government, impeach Obama, sue the president, and not pass any immigration reform through Congress. Meanwhile, some immigrant rights groups say Obama’s executive actions don’t go far enough.

The most contentious executive action is the grant of temporary relief from deportation to certain undocumented immigrants.

Amid the political hoopla, many who are in the U.S. unlawfully or without immigrant status — and would like to stay long-term — are wondering, how do the executive actions affect me? 

Here are 5 ways Obama’s executive actions are expected to benefit immigrants: 

1) Grant deferred action to more undocumented immigrant children by expanding DACA 

Deferred action grants a temporary stay in the U.S. without the threat of deportation. But it does not create a path to lawful permanent residence or citizenship in the U.S.

Obama is expanding the Deferred Action for Childhood Arrivals (DACA) program (which was first introduced on June 15, 2012) to cover a broader class of children.

First,  DACA will cover all undocumented immigrants who entered the U.S. before the age of 16, and not just those born after June 15, 1981, provided they meet the other guidelines.  DACA will no longer be limited to those under the age of 31 as of June 15, 2012.

Second, DACA will cover those who have continuous presence in the U.S. since before January 1, 2010, instead of the earlier date of June 15, 2007.

Third, DACA grants and renewals, including the work permits that come with DACA, will be valid for three years instead of two years.

The expanded DACA program is expected to begin 90 days from the November 20 announcement (i.e. February 18, 2015).  Those who have been convicted of a felony or major misdemeanor crime (including burglary, DUI, domestic violence, or drug distribution) still do not qualify.

2) Grant deferred action to undocumented immigrant parents of U.S. citizens and lawful permanent residents

Obama is creating a new deferral program – Deferred Action for Parent Accountability (DAPA) – for undocumented immigrant parents who have a U.S. citizen or lawful permanent resident son or daughter on the date of the November 20 announcement.

To qualify, the parents must also (i) not be enforcement priorities for removal from the U.S., (ii) have continuous presence in the U.S. since before January 1, 2010, and (iii) present no other factors that would make a grant of deferred action inappropriate.

USCIS will consider DAPA requests on a case-by-case basis, and applicants may apply for work authorization provided they pay the filing fee. DAPA grants and renewals, including the work permits that come with DAPA, will be valid for three years.

The new DAPA program is expected to begin 180 days from the November 20 announcement (i.e. May 19, 2015).

Each applicant must pass a background check of all relevant national security and criminal databases, including DHS and FBI databases, that would show they have not been convicted of a felony or certain misdemeanors.

3)  Streamline the immigrant and nonimmigrant visa application process to support high-skilled businesses and workers

In a November 20 memorandum titled Policies Supporting U.S. High-Skilled Businesses and Workers, the Secretary of the Department of Homeland Security called for new regulations and administrative steps to:

(i) Modernize the employment-based immigrant visa system (and make it easier for U.S. businesses to hire and retain highly-skilled foreign-born workers).

(ii) Reform “Optional Practical Training” for foreign students and graduates from U.S. universities (and make it easier for those on student visas studying science, technology, engineering and mathematics (STEM) to remain after graduation for training and work opportunities).

(iii) Promote research and development in the U.S. (and make it easier for foreign investors, researchers and founders of start-up enterprises to conduct research and development and create jobs in the U.S.).

(iv) Bring greater consistency to the L-1B “intracompany transferee” visa program (and make it easier for companies to manage their global workforce).

(v) Clarify guidelines for worker portability (and make it easier for adjustment of status applicants to accept promotions and change jobs without affecting their employment-based green card process).

4) Expand the Form I-601A, provisional waiver program 

The provisional waiver program for the 3/10 year unlawful presence bar, which USCIS introduced in 2013, will expand to spouses and children of lawful permanent residents, as well as adult children of U.S. citizens. It will no longer be just for U.S. citizens’ spouses, parents, and children (unmarried and under 21).

To obtain the waiver, applicants must still prove their absence from the U.S. will create “extreme hardships” for their U.S. citizen or lawful permanent resident spouse or parent (qualifying relative).

DHA plans to further clarify the “extreme hardship” standard that must be met to obtain the waiver. New guidelines and regulations will need to be issued for this to go into effect.

5) Promote the naturalization process

Lawful permanent residents who wish to naturalize will see some improvements in 2015. USCIS is expected to:

(i) Promote citizenship education and public awareness for lawful permanent resident;

(ii) Allow naturalization applicants to use credit cards to pay the application fee; and,

(iii) Assess potential for partial fee waivers.

A November 20 memorandum, titled Policies to Promote and Increase Access to U.S. Citizenship, states there are more than 8 million lawful permanent residents who are eligible, but who have not applied to become U.S. citizens. While the executive actions are meant to promote citizenship, they do not lower the eligibility requirements to become a U.S. citizen.

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To subscribe for email updates from USCIS on these executive actions, go to the Executive Actions on Immigration page on USCIS’ website.

This article provides general information only. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Beware of immigration scams!

Beware of notarios and scammers trying to take advantage of President Obama’s recent executive actions on immigration.

AILA National revamped its print Public Service Announcements (PSAs) that AILA members and the public can use to warn consumers about immigration scams.

The PSA is available in English and Spanish.

Only a licensed lawyer or accredited representative is authorized and qualified to help you with your immigration case. Unlike consultants,  immigration lawyers are licensed to represent clients.

Accredited representatives (who are not licensed lawyers but may provide limited assistance in immigration matters) must work for a Recognized Organization and be authorized by the Board of Immigration Appeals (BIA).  Recognized organizations that appear on this list may help with immigration matters. These organizations must either provide their services for free, or must only charge a nominal (small) fee for their services.

Notarios are neither lawyers nor accredited representatives. They often use the term “notario publico” in the Hispanic community. That title is not recognized in the United States as it is in some Latin American countries.

It is against the law for notarios to give you immigration advice. Even preparing immigration forms or green card applications is something that only a licensed immigration lawyer or accredited representative should do.

Lawyers from another country who are not licensed in the United States also are not authorized to provide immigration services within the United States.

In some cases, a law student participating in a law school clinic or legal aid program or through a non-profit organization may represent a person as described by regulation.

For more information, go to Stop Notario Fraud.

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Photo by: Richard Artschwager at Wadsworth Atheneum

Getting Visas and Immigrating to the U.S.

Are you a foreign national who wants to study, work or live lawfully in the U.S.? Getting a visa or immigrating to the U.S. can be very challenging. And it’s life-changing.

In this 1-minute video, I explain briefly how I’m qualified to help you in immigration matters.

 

Tune in for Obama’s address on immigration action

The White HouseTune in at 8 pm (ET) tonight (Thursday, November 20) for President Obama’s address on immigration action.

“Tomorrow night I’m going to be announcing here from the White House some steps I can take to start fixing our broken immigration system,” Obama said in a video posted on Facebook Wednesday afternoon.

Democratic leaders strongly support executive action on immigration. Republicans in Congress strenuously oppose Obama taking any unilateral action.

It’s not clear which groups of undocumented immigrants or how many will benefit from Obama’s executive order. Parents of U.S. citizens are likely to be included. Up to 5 million undocumented immigrants could be granted work permits and be shielded from deportation.

One thing’s certain: executive order alone cannot provide long-term immigration reform.

Although executive action shapes the way existing law is enforced, it does not create new law.  It would not provide undocumented immigrants with permanent resident status or a pathway to citizenship, which was proposed in the Senate bill that stalled in the House.

The Obama administration deported a record 438,421 unauthorized immigrants in fiscal year 2013, continuing the trend of increased enforcement that has resulted in more than 2 million deportations since Obama took office. Immigration advocates have dubbed Obama the “deporter in chief,” while Republicans in Congress have not complained about the stepped up enforcement.

Obama may use his executive authority to focus on deporting violent criminals and repeat offenders, instead of undocumented immigrants who pose little threat to the community and have strong family ties in the U.S.

But long-term, comprehensive immigration reform must come through Congress. Executive action by Obama would provide only temporary relief, not a lasting fix.

Watch Obama’s address online at White House Live.

This article provides general information only. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Priority Date: Current, Retrogressed, or Doesn’t Matter?

Immigrating to the United States can be a long, slow process that lasts several years (decades, in some cases).

The other day, a U.S. citizen called to ask me whether he could file an immigrant petition for his adult brother, who is 52 years old. I said yes, but based on current processing time, it could be well over 12 years before his brother gets an immigrant visa to enter the U.S. as a permanent resident.

Why would it take so long? 

A big reason is that Congress limits the number of persons who may immigrate to the U.S. each year. The time you must wait for an immigrant visa depends on the annual limit in your visa category, the number of applicants, and your priority date.

The one visa category that does not have an annual limit are immediate relatives of U.S. citizens.

What is my priority date?

Your priority date is the date you began your green card process.

In family-based immigration, it’s the date that U.S. Citizenship & Immigration Services (USCIS) received the Form I-130, Petition for Alien Relative.

In employment-based categories, it’s the date that the U.S. Department of Labor (DOL) received the application for alien labor certification or the date that USCIS received the Form I-140, Immigrant Petition for Alien Worker (if no alien labor certification is required).

When may I file for my green card or my immigrant visa? 

Immediate Relatives

There is no annual limit or waiting period in the immediate relatives category. Immigrant visas are always available to:

  • The spouse or minor child of a U.S. citizen.
  • Parent of a U.S. citizen who is age 21 or over.
  • Step-parent or step-child of a U.S. citizen (if the step-parent, step-child relationship began before the child’s 18th birthday).
  • The spouse of a deceased U.S. citizen (if the spouse was married to the deceased U.S. citizen for at least two years and the application for permanent residence was filed within two years of the death of the U.S. citizen).

But if you’re in a preference category with annual limits, your priority date determines when you may apply for a green card or an immigrant visa. These categories are as follows:

Family-Sponsored Preferences 

First: (F1) Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:

A.  (F2A) Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences.

Employment-Based Preferences

First: (EB1) Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second: (EB2) Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third: (EB3) Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “Other Workers”.

Schedule A Workers: Employment First, Second, and Third preference Schedule A applicants are entitled to up to 50,000 “recaptured” numbers.

Fourth: (EB4) Certain Special Immigrants, such as Religious Workers: 7.1% of the worldwide level.

Fifth: (EB5) Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers.

Visa Bulletin

The U.S. Department of State (DOS) publishes a monthly Visa Bulletin to show the availability of immigrant visa numbers in each family category and employment category. Each category with annual limits usually has a cut-off date.

There are also limits on the number of immigrant visas that can be granted each year to persons from any one country. These limits are not based on citizenship, but on the “country of chargeability,” which is usually the country where you were born. You might be able to claim a different country, such as the country where your spouse was born.

If the Visa Bulletin  shows “C” for a category and country, this means the visa numbers are current and there is no waiting period.  If the demand for visas exceeds the supply, the Visa Bulletin shows a cut-off date.

Is your priority date current?

Your priority date must be current for you to file your Form I-485, Application to Register Permanent Residence or to Adjust Status (if you are in the U.S. and you are eligible for a green card), or apply for an immigrant visa at your U.S. Consulate (if you are outside of the U.S.)

If visa numbers are current or your priority date is earlier than the cut-off date, you may file your Form I-485 or immigrant visa application (assuming USCIS approved the immigrant petition). You may be scheduled for an interview and get your green card or immigrant visa only when your priority date is current.

File your Form I-485 application or apply for consular processing as soon as your priority date is current. If you are in the U.S. and qualify for adjustment of status, you submit the I-485 to USCIS, which will send you a green card interview notice.  If you are living overseas, the National Visa Center (NVC) will issue instructions to begin consular processing.

Has your priority date retrogressed? 

The priority dates may retrogress (move backward). So, even if your priority date is current this month, it could move backward the next month.

If the priority date retrogresses after you file your Form I-485 application or after you begin consular processing, your case cannot be approved until the priority date becomes current again.

USCIS may issue a request for evidence (RFE), a notice of intent to deny (NOID), or a denial during this waiting period. Or USCIS will place your case on hold and approve it only after an immigrant visa becomes available again.

How do I know when an immigrant visa number is available to me?’

If you are in the family-sponsored preference or employment-based preference category, you must track the Visa Bulletin to know whether your priority date is current.

The Visa Bulletin looks backward, not forward. For example, in the November 2014 Visa Bulletin, the cut-off date is “08JUL94” for Mexican-born applicants in the family-sponsored, F-1 category. This means the I-130 petition had to be filed 20 years ago (on or before July 8, 1994) for an immigrant visa to now be available.

That’s a LONG WAIT! And as demand continues to exceed supply, the waiting period could be much longer if the petition is filed today.

The monthly Visa Bulletin is available on the DOS website. You may also call the DOS at (202) 663-1541 for a 24-hour recording that gives the priority dates that are currently being processed.

If you’re an immediate relative of a U.S. citizen, you don’t need to track the Visa Bulletin. The priority date doesn’t matter because there is no annual limit in your category.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Pierre J.