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Carl Shusterman's Immigration Update

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  1. Obama's New Immigration Policy

    http://shusterman.com/images/obamas-immigration-policy.jpg On November 20, 2014, President Obama announced his long-awaited changes to our broken immigration system. None of the changes will take place immediately, and some hoped-for changes like recapture of lost EB numbers and counting only principals toward the 140,000 EB cap were not included in the new policy.

    Nevertheless, for 4-5 million persons, most of them undocumented, there is considerable good news.


    1. Deferred Action Relief for Parents (DARP) - Parents of young persons granted DACA will not receive any benefits under the President's new policy. However, certain parents of US citizens and green card holders will be able to apply for relief and work cards under DARP.


    The age of the child is irrelevant. Even if you are 50+ years old and your son/daughter gets a green card through his/her citizen spouse, you may be eligible for DARP. To qualify, you need to have resided in the US since January 1, 2010 and not be in lawful status on November 20, 2014. The background checks will be similar to those for DACA applicants. You can qualify even if you are under removal proceedings or are subject to a Final Order of Removal.


    The work permit and biometrics fee is currently $465.


    The application period will start in the Spring of 2015.


    2. Expansion of the DACA Program - The 31-year-old age cap for the Deferred Action for Childhood Arrivals (DACA) program will be removed. You must have be present in the US on January 1, 2010 (rather than on June 15, 2007) to qualify and be under the age of 16 when you entered the US. DACA work permits will now be issued for 3 years at a time instead of 2 years. You must be present in the US on November 20, 2014 and not be in lawful status.


    The application period will start within 90 days of November 20, 2014.


    3. Employment-Based (EB) Benefits - Most of these promised benefits are in the "Coming Attractions" category since they require regulations. We are informed that the long-awaited regulations for work permits for certain H-4 spouses will soon be finalized.


    Also, that certain persons with approved EB petitions who are waiting for their priority dates to become current may eventually be permitted to "pre-register" for adjustment of status which will allow them to obtain EADs and APs, and to change jobs. Regarding OPT, the STEM category will be expanded and the length of STEM-OPT extensions will grow. Also promised are benefits for foreign-born entrepreneurs.


    Again, don't look for any of these benefits in your Christmas stocking next month. Perhaps by the end of 2015.


    4. Other Benefits - These include items that have been on many immigrants' wish lists for years and years:

    • I-601A Provisional Waivers - Will be expanded to include spouses and children of LPRs;
    • Parole-in-Place - Will be expanded;
    • Advance Parole - DHS will apply standards in Matter of Arrabally-Yerrabelly;
    • Promises, Promises - DHS will clarify legal terms of art including "extreme hardship", "specialized knowledge", "same or similar" and everything from the PERM process to Immigration Court proceedings will be improved and modernized.



    Free Webinar


    Have any questions about President Obama's New Immigration Policy?


    Of course you do!


    Please sign-up for a Free Webinar about Obama's new immigration policy in which I will participate in along with attorneys from Wolfsdorf Rosenthal on Monday, December 1st at 12:30pm, Pacific Time.


    Need More Information?


    We link to DHS's "Fixing Our Broken Immigration System through Executive Action".


    This page links to over a dozen fun-filled pages designed which attempt to explain the changes to our immigration system being contemplated by the DHS.

    Updated 11-21-2014 at 12:30 PM by CShusterman

  2. GOP Leader's About Face on Immigration


    http://images.politico.com/global/news/101110_john_boehner_ap_328.jpg
    Within days of President Obama's reelection, a number of miraculous conversions occurred among Republicans with regard to immigration policy.

    Sean Hannity, the conservative Fox News host stated: "We've gotta get rid of the immigration issue altogether. It's simple for me to fix it. I think you control the border first, you create a pathway for those people that are here, you don't say you gotta go home. And that is a position that I've evolved on. Because you know what--it just--it's gotta be resolved. The majority of people here--if some people have criminal records you can send 'em home--but if people are here, law-abiding, participating, four years, their kids are born here ... first secure the border, pathway to citizenship ... then it's done. But you can't let the problem continue. It's gotta stop."


    Even more remarkable, John Boehner, the Republican Speaker of the House seems to have experienced a similar conversion at exactly the same instant as Mr. Hannity: "This issue has been around far too long...A comprehensive approach is long overdue, and I'm confident that the president, myself, others can find the common ground to take care of this issue once and for all."


    The cynical among us would probably attribute these simultaneous conversions to the fact that President Obama received over 70% of the Latino vote. Why was that? In the Republican primaries, Mitt Romney moved to the right of both Rick Perry and Newt Gingrich on the immigration issue. He vowed to veto the Dream Act should it reach his desk, and seemed horrified by the Texas law which allows home state Dreamers to qualify for in-state tuition. Such stands helped him win the Republican nomination, but proven disastrous in the general election.


    So now, will Republicans in Congress wise up and support Comprehensive Immigration Reform (CIR)? Despite the twin conversions mentioned above, I am not so sure. Indeed, Boehner does not seem to have consulted the members of his caucus in advance of his sudden change of heart.


    Consider the words of Representative John Fleming (R-LA): "(Boehner was) getting ahead of House Republicans when he commits to getting a `comprehensive approach' to immigration...There's been zero discussion of this issue within the conference, and I'm urging the speaker to talk with House Republicans before making pledges on the national news."


    Sadly, it seems that many Republican members of Congress are not about to change their negative positions on immigration despite the election results. The good news is that if even a couple of dozen Republican Representatives vote for CIR, it could become law in 2013. However, whether Boehner can persuade enough of his caucus to support CIR remains to be seen.


    Republicans have not traditionally been hostile to immigration. I am old enough to remember when President Reagan, a Republican icon, signed the last CIR law in 1986. I also remember when Spencer Abraham (R-MI) was the pro-immigration Chairman of the Senate Immigration Subcommittee. Anti-immigrant groups were largely responsible for his reelection defeat in 2000. I testified before that Subcommittee in 2001 when the pro-immigration Senator Sam Brownback (R-KS) became the Chairman.


    But times have changed. The formerly pro-immigration Republican members of Congress have removed their names as sponsors of the DREAM Act. Under pressure from the extreme right, reasonable Republicans like Senator John McCain and Orin Hatch have renounced their earlier support for pro-immigration legislation in order to be reelected. Indeed, support for immigration reform has become heresy for Republicans much to their detriment as a viable political party. Don't take my word for this.


    Listen to what the very conservative former House Republican Majority Leader Dick Armey has been saying about immigration and the Latino vote for the past few years: "Anti-immigration has always been ironic, because throughout our history newcomers have been a source of strength, not weakness." "Who in the Republican Party was the genius who said now that we have identified the fastest-growing demographic in America, let's go out and alienate them? This is a nation of immigrants. ... There is room in America."

    Subscribe to our free, monthly e-mail newsletter, and follow us on Facebook, Twitter, Google+ and YouTube.

    Updated 12-02-2013 at 01:10 PM by CShusterman

  3. DHS's Latest Guidance on Deferred Action


    by Carl Shusterman*

    Today, on August 3, 2012, the Department of Homeland Security (DHS) released a 16-page memo entitled "Deferred Action for Childhood Arrivals". This memo reveals various details regarding how the new deferred action program will work. The memo contains answers to many Frequently Asked Questions which we summarize below:

    http://www.shusterman.com/images/daca812.jpg

    1. Is Deferred Action a law?

    No. Deferred action is a discretionary determination on the part of DHS. It is an act of prosecutorial discretion. The new policy will allow certain foreign-born individuals who entered the United States as children to apply for 2-year work permits, and possibly for extensions. It is not a path to a green card or to U.S. citizenship.


    2. Who is eligible for Deferred Action?

    You may apply for Deferred Action starting on August 15, 2012 if you


    1. Were under the age of 31 as of June 15, 2012; th
    2. Came to the United States before reaching your 16
    3. Have continuously resided in the United States since June 15, 2007, up to the presenttime;
    4. Were physically present in the United States on June 15, 2012, and at the time of makingyour 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 highschool, 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.



    3. What forms do I use to apply, and what are the filing fees?

    You are required to submit form I-821D, Consideration of Deferred Action for Childhood Arrivals. If you are applying for employment authorization, you must also submit forms I-765 and I-765WS. In order to receive employment authorization, you must demonstrate “an economic necessity for employment”. We link to each of these forms and instructions for completing these forms from our Deferred Action page.

    The total fees are $465.

    Before deciding your application, DHS will perform a background check on you.


    4. If my application is denied, can I appeal?

    You cannot an appeal or submit a motion to reopen/reconsider if your application is denied. However, the memo is silent about whether you can reapply for deferred action if you initial application is denied. In extremely limited situations, you can request a review of the denial. USCIS will implement a supervisory review process in all four Service Centers to ensure a consistent process for considering requests for deferred action for childhood arrivals. USCIS will require officers to elevate for supervisory review those cases that involve certain factors.


    5. If my application is denied, can I be placed in removal proceedings?

    Usually not. However, there are exceptions, so be very careful. Below is how the memo explains this:

    Information provided in this request is protected from disclosure to U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to U.S. Immigration and Customs Enforcement under the criteria set forth in USCIS's Notice to Appear guidance. Individuals whose cases are deferred pursuant to the consideration of deferred action for childhood arrivals process will not be referred to ICE. The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of deferred action for childhood arrivals, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense. The above information sharing policy covers family members and guardians, in addition to the requestor.

    This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.


    6. If my application for deferred action is approved, can I travel outside of the U.S.?

    Not automatically. If USCIS has decided to defer action in your case and you want to travel outside the United States, you must apply for advance parole by filing a Form I-131, Application for Travel Document and paying the applicable fee ($360). USCIS will determine whether your purpose for international travel is justifiable based on the circumstances you describe in your request. Generally, USCIS will only grant advance parole if you are traveling for humanitarian purposes, educational purposes, or employment purposes. You may not apply for advance parole unless and until USCIS determines whether to defer action in your case pursuant to the consideration of deferred action for childhood arrivals process. You cannot apply for advance parole at the same time as you submit your request for consideration of deferred action for childhood arrivals. All advance parole requests will be considered on a case-by-case basis.


    7. If I have traveled outside the United States since June 15, 2007, can I still qualify for deferred action?

    A brief, casual, and innocent absence from the United States will not interrupt your continuous residence. If you were absent from the United States for any period of time, your absence will be considered brief, casual, and innocent, if it was before August 15, 2012, and:


    1. The absence was short and reasonably calculated to accomplish the purpose for the absence;
    2. The absence was not because of an order of exclusion, deportation, or removal;
    3. The absence was not because of an order of voluntary departure, or anadministrative grant of voluntary departure before you were placed in exclusion, deportation, or removal proceedings; and
    4. The purpose of the absence and/or your actions while outside the United States were not contrary to law.



    8. If I am no longer attending school, and do not have a high school degree or a GED, am I still eligible for deferred action?

    To be considered "currently in school" under the guidelines, you must be enrolled in school on the date you submit a request for consideration of deferred action under this process. So, in your case, you should enroll in school prior to submitting your application for deferred action.


    9. I am currently in removal proceedings. How can I apply for deferred action?

    Persons in removal proceedings, those with a final order or with a voluntary departure order may apply for deferred action. Submit your request to the USCIS.


    10. I am under a Final Order of Removal and am in ICE custody, can I still apply for deferred action?

    Yes. However, you should not submit your application to the USCIS, but should identify yourself to your detention officer or contact the ICE Office of the Public Advocate through the Office's hotline at 1-888-351-4024 (staffed 9am - 5pm, Monday - Friday) or by e-mail at EROPublicAdvocate@ice.dhs.gov


    11. If I have been convicted of a misdemeanor, can I still qualify for deferred action?

    Only if you were not convicted of a "significant misdemeanor" or of 3 or more misdemeanors.

    A "significant misdemeanor" is a misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria:


    1. Regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or,
    2. If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.


    The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by U.S. Immigration and Customs Enforcement (ICE). Notwithstanding the above, the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances. Therefore, the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion. DHS retains the discretion to determine that an individual does not warrant deferred action on the basis of a single criminal offense for which the individual was sentenced to time in custody of three months or less.


    12. Do I need to hire an attorney in order to apply for deferred action?

    Not necessarily. The memo advises applicants to visit the DHS "Avoid Scams" page to protect yourself. However, if there are issues with your application: unlawful entries to the U.S. during the past 5 years, criminal convictions, removal proceedings, etc., it may be to your advantage to get some legal advice before you apply. If you are considering hiring an attorney to represent you, we suggest that you view on our video "How to Select An Immigration Attorney".



    ________________________________________________________________________________________________________

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    * Carl Shusterman has practiced immigration law for over 35 years, first as an INS Attorney (1976-82) and for the past 30 years in private practice. He has testified as an expert witness before the Senate Immigration Subcommittee. Mr. Shusterman is a Certified Specialist in Immigration and Nationality Law and is the webmaster of two popular websites which provide immigration information and advice to the public, one in English and one in Spanish.

    Updated 12-02-2013 at 05:45 PM by CShusterman

  4. New Deportation Priorities: How Will This Work?


    On August 18, the Obama Administration announced that all 300,000+ persons currently in removal proceedings as well as those subject to final orders of removal will have their cases reviewed by ICE, and that many of them will have their cases terminated and some will even be granted work permits.

    http://www.theepochtimes.com/n2/images/stories/large/2009/12/18/luis82589388.jpg This announcement was greeted with great delight by immigration advocates and with angry blasts of vitriol from the anti-immigrant right wing. Congressman Luis Gutierrez (D-IL) was effusive in his praise, calling this "a victory not just for immigrants but for the American people as a whole" and calling on ICE Director John Morton to appear before Congress to explain how the new program will be implemented. Senator Richard Durbin, (D-IL) a co-sponsor of the DREAM Act, and one of 22 Senators who had called on the Obama Administration to halt DREAM Act deportations, stated that "the Administration's new process is a fair and just way to deal with an important group of immigrant students and I will closely monitor DHS to ensure it is fully implemented." However, House Judiciary Committee Chairman Lamar Smith (R-TX) denounced the new program as a "backdoor amnesty".

    The big questions left unanswered are who will benefit from this new program and how?

    We recommend that our readers carefully examine the text of the following three documents:

    1. DHS Secretary Napolitano's letter to Senator Durbin's dated August 18, 2011.
    2. ICE Director Morton's prosecutorial discretion memo dated June 17, 2011.
    3. The August 18, 2011 post on the White House Blog entitled "Immigration Update: Maximizing Public Safety and Better Focusing Resources"


    Although Senators Durbin and Lugar (R-IN) and 20 of their colleagues wrote solely about the DREAM Act students to Secretary Napolitano, her reply is written more broadly:

    "Accordingly, the June 17, 2011 prosecutorial discretion memorandum is being implemented to ensure that resources are uniformly focused on our highest priorities. Together with the Department of Justice (DOJ), we have initiated an interagency working group to execute a case-by-case review of all individuals currently in removal proceedings to ensure that they constitute our highest priorities. The working group will also initiate a case-by-case review to ensure that new cases placed in removal proceedings similarly meet such priorities. In addition, the working group will issue guidance on how to provide for appropriate discretionary consideration to be given to compelling cases involving a final order of removal. Finally, we will work to ensure that the resources saved as a result of the efficiencies generated through this process are dedicated to further enhancing the identification and removal of aliens who pose a threat to public safety."

    A case-by-case review on all individuals currently in removal proceedings in order to implement the June 17 prosecutorial discretion memorandam will be quite an undertaking. First, the number of individuals involved exceeds 275,000. That's a lot of files to evaluate. It will take not days or weeks to evaluate all of these cases, but many months. Secondly, the government not only needs to review pending court cases, but those on appeal and those with final orders. Finally, the government will need to evaluate who will be placed in removal proceedings in the future. This will truly be a massive undertaking, and given the immensity of the bureaucracy and varied outlooks of ICE District Counsels (who must coordinate with the USCIS, CBP and other governmental agencies), the results may be highly divergent.

    Another wild card is the ambiguity of the June 17th Morton memo. This memo builds on seven previous prosecutorial discretion memos, most of which are listed on our website. The Morton memo lists 19 factors that should be considered in exercising prosecutorial discretion and cautions that "this list is not exhaustive and no one factor is determinative. ICE officers, agents, and attorneys should always consider prosecutorial discretion on a case-by-case basis. The decisions should be based on the totality of the circumstances, with the goal of conforming to ICE's enforcement priorities."

    What's that suppposed to mean, you ask? Wait, there's more!

    Consider the concluding paragraph of the White House Blog:

    "So DHS, along with the Department of Justice, will be reviewing the current deportation caseload to clear out low-priority cases on a case-by-case basis and make more room to deport people who have been convicted of crimes or pose a security risk. And they will take steps to keep low-priority cases out of the deportation pipeline in the first place. They will be applying common sense guidelines to make these decisions, like a person's ties and contributions to the community, their family relationships and military service record. In the end, this means more immigration enforcement pressure where it counts the most, and less where it doesn't - that's the smartest way to follow the law while we stay focused on working with the Congress to fix it."

    And what are these "common sense guidelines"? Here, the Blog wisely punts this issue by linking these three key words to the Morton memo.

    And none of the above statements deal with persons who are not in removal proceedings which raises the question: If you want to obtain a work permit, do you have to find a way to get yourself in removal proceedings, and then ask ICE to terminate proceedings? Curious immigrants want to know.

    And, finally, what is a "low-priority case"?

    As a former INS prosecutor, I can't explain it to you, but I know it when I see one ;-)

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    Updated 12-02-2013 at 01:53 PM by CShusterman

  5. President Obama and Immigration Reform


    http://cdn01.dailycaller.com/wp-content/uploads/2013/03/3144f2ca3ddb4b7faf8d5d26eb7679e1-e1362557183925.jpg On June 25, President Obama met with a bipartisan group of 30 key legislators beginning a dialogue that he hopes will lead to comprehensive immigration reform in 2009 or early in 2010.

    Among the topics discussed were border security, family reunification and reform of the outdated quota system.

    Following the meeting, the President stated, "but what I'm encouraged by is that after all the overheated rhetoric and the occasional demagoguery on all sides around this issue, we've got a responsible set of leaders sitting around the table who want to actively get something done and not put it off until a year, two years, three years, five years from now, but to start working on this thing right now."

    With regard to the USCIS, the President stated:

    "Today I'm pleased to announce a new collaboration between my Chief Information Officer, my Chief Performance Officer, my Chief Technologies Officer and the U.S. Citizenship and Immigration Services Office to make the agency much more efficient, much more transparent, much more user-friendly than it has been in the past.

    In the next 90 days, USCIS will launch a vastly improved Web site that will, for the first time ever, allow applicants to get updates on their status of their applications via e-mail and text message and online. And anybody who's dealt with families who are trying to deal with -- navigate the immigration system, this is going to save them huge amounts of time standing in line, waiting around, making phone calls, being put on hold. It's an example of some things that we can do administratively even as we're working through difficult issues surrounding comprehensive immigration.

    And the idea is very simple here: We're going to leverage cutting-edge technology to reduce the unnecessary paperwork, backlogs, and the lack of transparency that's caused so many people so much heartache."

    President Obama also announced that DHS Secretary Janet Napolitano will chair a working group composed of Representatives and Senators to hash out some of thorniest issues. Among these issues are how to legalize 12 million undocumented persons, border security, cracking down on unscrupulous employers, creation of a "guest worker" program and whether a governmental commission should be established to decide the future immigration of temporary and permanent workers based on labor market needs.

    Unions are opposed to a guest worker program and in favor of a commission while business groups would like to see a guest worker program but are opposed to a governmental commission.

    Senator McCain (R-AZ), a key player stated that "we don't need a commission" and called on the President to stand up to labor unions and support a guest worker program.

    Several persons close to President Obama including his Press Secretary and his Chief of Staff have asserted that there are not enough votes in Congress to pass comprehensive immigration reform. And at least one strong proponent of immigration reform, Rep. Luis Gutierrez (D-IL), agrees. "If we had the votes, we wouldn't be calling you", Gutierrez told the Wall Street Journal.

    However, in the Senate, both the Majority Leader Harry Reid (D-NV) and Immigration Subcommittee Chairman Charles Schumer (D-NY) believe that there are enough votes in their chamber to pass the legislation. The Senate passed the bipartisan Kennedy-McCain immigration bill in 2006. However, the House did not take up the measure.

    "We've got one more chance to do this," said Senator Lindsey Graham (R-SC). "If we fail this time around, no politician is going to take this up in a generation."

    President Obama stated, "It's going to require some heavy lifting."

    We link to a video of President Obama's remarks at the conclusion of the June 25th meeting as well as to the transcript of his remarks from our "Immigration Legislation" page at


    Subscribe
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    Updated 12-02-2013 at 04:51 PM by CShusterman

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