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Carl Shusterman's Immigration Update

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  1. Denaturalization Task Force To Be Set Up By USCIS


    USCIS plans to establish an office in Los Angeles to focus on denaturalization. It will refer potential cases to the US Department of Justice.

    The USCIS cannot assure compliance with the law because old paper-based records containing fingerprint information from the FBI and DHS can’t be searched electronically. All such records need to be digitized.


    In 2008, a CBP officer identified 206 persons who used different names or other biographical information to gain US citizenship or other immigration benefits. This occurred because ICE did not consistently add digital fingerprint records of immigrants whom agents encountered until 2010.

    On September 18, 2016, the DHS Office of the Inspector General issued a report entitled Potentially Ineligible Individuals Have Been Granted U.S. Citizenship Because of Incomplete Fingerprint Records.


    The report found that that “USCIS granted U.S. citizenship to at least 858 individuals ordered deported or removed under another identity when, during the naturalization process, their digital fingerprint records were not available.” Overall, the report found that fingerprint records were missing from hundreds of thousands of cases.

    The report recommended that DHS establish a plan for evaluating the eligibility of those naturalized citizens whose fingerprint records reveal deportation orders under a different identity. Reports indicate that 95 of the 2,536 naturalization cases reviewed by DHS have been referred to the Justice Department for possible denaturalization.

    In January 2017, the USCIS assigned officers to the Operation Janus joint task-force to look into this problem. As a result, in September 2017, the Justice Department brought a number of lawsuits seeking to denaturalize persons who were granted US citizenship using false identities. In January 2018, the first person was denaturalized under this program.

    In June 2018, USCIS Director Francis Cissna announced that his agency planned to hire “several dozen lawyers and immigration officers to review cases of immigrants who were ordered deported and are suspected of using fake identities to later get green cards and citizenship through naturalization.”

    The USCIS plans to establish an office in Los Angeles to focus on denaturalization. The office will review the records of people who have become US citizens since 1990 (over 17 million persons) in order to identify people who deliberately lied on their citizenship applications. Director Cissna predicted that several thousand cases will be referred to the Justice Department for denaturalization.

    Using a false identity to become a US citizen is an obvious reason for the government to seek to denaturalize a person. However, the USCIS’s approach to remedying this problem is deeply troubling for at least 2 reasons.

    First, the USCIS is not requesting any funding for this program from the Federal Government. Instead, it proposes to simply reallocate funds from the immigration application fee account, which is likely to slow the processing time for legitimate immigration and naturalization petitions. USCIS filing fees for N-400 applications have already risen from $15 when I served as an INS Citizenship Attorney to $640 (plus a biometrics fee of $85) today. And, despite these enormous increases in filing fees, the average waiting times for naturalization interviews have risen to over one year in many USCIS District Offices nationwide.

    Second, in many cases, seeking denaturalization can often be a waste of precious time and resources.

    Consider the pending denaturalization case which the government recently brought against a Florida woman by the name of Norma Borgono.





    Ms. Borgono is a 63-year-old woman who immigrated to the US from Peru 28 years ago. She became a naturalized US citizen in 2007. She suffers from a rare kidney disease.

    Working as a secretary of an export company called Texon Inc., Ms Borgono prepared paperwork for her boss, who pocketed money from doctored loan applications filed with the US Export-Import Bank. Ms. Borgono never benefitted financially from her boss’s fraud scheme.

    In 2011, she helped the federal government convict her boss, took a plea deal (She pled guilty to conspiracy to defraud the United States and to commit mail fraud.) and was sentenced to 1 year of house arrest, 4 years of probation and $5,000 restitution.

    She worked 2 jobs to pay off her restitution, and was relieved of her sentence early.

    In May 2018, many years after she served her sentence, the government notified her that they were seeking to take away her US citizenship.
    Why? The stated reason was because she did not reveal her criminal activity on her application for citizenship even though she was not charged with a crime until well after she became a US citizen.

    In the past, denaturalization was usually reserved for Nazis, dangerous criminals and funders of terrorist organizations. Not any more.

    Is it really a priority for the government to spend precious time and resources in attempting to denaturalize people like Ms. Borgono? Or is the real intent to continue to demonize and intimidate immigrants?

    Updated 07-23-2018 at 12:58 PM by CShusterman

  2. 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

  3. Obama Administration Steps Up For DREAMers


    http://pixel.nymag.com/imgs/daily/intel/2012/06/15/15-obama-speaking.o.jpg/a_560x375.jpg
    Today, the Department of Homeland Security announced that, effective immediately, certain individuals who were brought to the United States as children and meet specific criteria will be considered for relief from being put in deportation proceedings or removed from the country. Let us be clear, this is NOT amnesty and acts as more of a band-aid on a contentious and sensitive issue that can only truly be remedied by comprehensive immigration reform.

    DHS Secretary Janet Napolitano, writes "This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights. It remains for the executive branch, however, to set forth policy for the exercise of discretion within the framework of the existing law."

    So what does this mean for the undocumented immigrant community? This newly-announced policy will act to prevent the deportation or initiation of removal proceedings against certain young people who were brought to this country as children, and who have completed at least high school or obtained a GED certificate.

    Today's policy announcement does not grant any kind of status to eligible individuals. Eligible individuals will be granted "deferred action" which is a temporary reprieve from deportation. Those granted deferred action may then apply for employment authorization from the USCIS.

    The new policy establishes certain criteria for deferred action:


    1. The individual must have come to the United States under the age of sixteen;
    2. He/she must have continually resided in the U.S. for at least five years preceding the date of the memorandum (6-15-12) and must be present in the U.S. on the date of the memo;
    3. She/he must currently be in school, have graduated from high school, obtained a general education (GED) certificate, or be an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
    4. The individual cannot have been convicted of a felony offense, significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; and
    5. The individual must not be above the age of 30.


    Today's announcement is essentially the next step following earlier DHS announcements regarding prosecutorial discretion. In August of 2011, DHS published a memo in which the agency would review deportation cases and grant prosecutorial discretion to "low priority" cases. Since that policy took effect, however, only about two percent of pending removal cases have actually been granted prosecutorial discretion. And those who have received prosecutorial discretion do not necessarily qualify for employment authorization. So for many, while they may remain in the U.S., they cannot earn a living.

    Today's policy announcement targets a more specific group of individuals, commonly known as "DREAMERs." These are individuals who would benefit from the DREAM Act, a bipartisan piece of legislation which would provide a path to legal status for those who were brought to the United States as children and educated in our nation's schools. Although the DREAM Act initially enjoyed bi-partisan support, the contentious climate in Congress has prevented its passage.

    Predictably, several prominent Republicans have already come out against this policy change, including Senator Lindsay Graham who criticized the decision because it "avoids dealing with Congress." Similarly, Rep. Lamar Smith, Chairman of the House Judiciary Committee, said, "President Obama's decision to grant amnesty to potentially millions of illegal immigrants is a breach of faith with the American people" (Apparently, he missed the memo). Such statements grossly mischaracterize the nature of the DHS prosecutorial discretion policy, and mislead the general public.

    The new policy recognizes some important facts in a couple of ways. Firstly, DHS can deport about 400,000 individuals per year. Given that there are around 12,000,000 undocumented individuals in the United States, it makes sense to prioritize who gets to stay and who must go.

    Secondly, the individuals who are being considered for this discretion are not individuals who intentionally broke the law or had any control over their situation. These 800,000 individuals were brought to this country by their families as minors; for many this is the only country they have ever known. They graduated from school, many at the top of their class. They have been productive members of our society.

    Let's get real; these individuals are de facto Americans, and kudos to the Obama administration for adopting a policy that will not target such individuals for deportation and will allow them to obtain work permits.

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

    Updated 12-02-2013 at 05:58 PM by CShusterman

  4. DHS Reforms Affecting Highly-Skilled Immigrants


    http://www.aei.org/files/2011/12/15/img-immigration-and-american-jobs-indian-scientist-lab_091813869279.jpg_item_large.jpg On January 31, the Department of Homeland Security (DHS) announced a number of new initiatives meant to aid legal immigrants. This announcement roughly mirrors the White House's recent release of the "Startup America" immigration agenda.

    It should be emphasized that each of these initiatives are still in the planning stage with no set date as to when they will become effective.

    Quoting from the DHS announcement: "The initiatives described below will serve to make the United States more attractive to highly-skilled foreign students and workers, thereby improving the competitiveness of U.S. companies in the world market and stimulating U.S. job creation."


    1. Work Authorization for H-4s

    The government is proposing to grant work authorization to some H-4 spouses.

    Currently, H-4 spouses cannot obtain work authorization until a few months after they apply for adjustment of status. Given the long wait in some of the employment-based categories, they are often prohibited from employment for several years.

    In the future, they may qualify for work authorization after a PERM application is approved for the H-1B spouse, or when an I-140 is filed.

    Stay tuned for details.


    2. Work Authorization for H1-B1s and E-3s

    Persons with H1-B1 visas (professionals admitted to the U.S. under Free Trade Agreements with Chile and Singapore) and E-3 visas (professionals who are citizens of Australia) are already allowed to work in the U.S.

    Where the problem comes in is when they apply for an extension of stay. H-1B professionals with pending extension applications are permitted to keep working for 240 days while their extension applications are pending. H1-B1s and E-3s are not allowed to keep working in such circumstances for even 24 hours. Ridiculous!

    DHS plans to level the playing field a bit, but the question is when?


    3. STEM OPT Extensions

    In 2008, the USCIS began permitting some foreign-born graduates of U.S. universities to extend their work permits (also known as Optional Practical Training or "OPT") for an additional 17 months if they fulfilled each of the following conditions:


    • Currently participating in a 12-month period of approved post-completion OPT;
    • Successfully completed a degree in science, technology, engineering, or mathematics (STEM) included in the DHS STEM Designated Degree Program List from a college or university certified by the U.S. Immigration and Customs Enforcement's Student and Exchange Visitor Program;
    • Working for a U.S. employer in a job directly related to the student's major area of study;
    • Working for, or accepted employment with, an employer enrolled in U.S. Citizenship and Immigration


    Services' E-Verify program; and


    • Properly maintaining F-1 status.


    Now, the DHS plans to expand the program slightly. While the present program is limited to students whose most recent degree is in a STEM field, a past degree will soon suffice (e.g., an MBA with a B.S. in Computer Science). Also, DHS plans to expand the STEM Designated Degree Program List.

    In a related proposal, F-2 spouses of foreign-born students will be permitted to enroll part-time in academic courses. The number of Designated School Officials will also be increased.


    4. Outstanding Professors and Researchers

    Currently, to be considered an outstanding professor or researcher for purposes of qualifying for permanent residence, the person must meet 2 of 6 criteria.

    Comparable evidence is not accepted in this category although it is in the Extraordinary Ability category, and the USCIS has recently begun to issue an increased volume of requests for evidence and denials in this category.

    Again, the DHS plans to level the playing field by allowing comparable evidence to be accepted for Outstanding Professors and Researchers.


    5. Entrepreneurs in Residence Program

    On February 22, USCIS officials will meet with academic, business and government leaders. The aim of this program is to streamline procedures for deciding temporary benefit applications commonly utilized by foreign-born entrepreneurs.


    CONCLUSION

    In our view, these are steps, perhaps baby steps, in the right direction. How significant these changes will be and when they will be implemented remains to be seen.

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    Updated 12-02-2013 at 01:31 PM by CShusterman

    Tags: dhs, e-3, h-4, immigration, stem Add / Edit Tags
  5. 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 ;-)

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

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

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