Carl Shusterman's Immigration Update

Gay Marriages: Why Are We Still Living in a Cave?

Imagine receiving an I-130 denial from the INS which read: “You have failed to establish that a bona fide marital relationship can exist between two faggots.”

This notice was sent by the Los Angeles office of the INS in 1975 to Richard Adams, a naturalized U.S. citizen born in the Philippines, with regard to the immigrant visa petition (I-130) that he had submitted to the INS on behalf of his spouse Anthony Sullivan, an Australian citizen, who had arrived in the U.S. as a visitor and who married Adams in Boulder, Colorado.

A Federal District Court Judge upheld the INS’ decision (albeit with the word "faggot" removed).  Later, in 1982, in Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), the 9th Circuit Court of Appeals unanimously upheld the decision of the District Court Judge.

The Appeals Court held that it was bound to follow the words of the statute and the intent of Congress if there was any rational basis for doing so.  At that time, another section of the law held that homosexuals were excludable from the U.S.  Therefore, the Court concluded that when Congress used the term “spouse”, they were referring only to partners in heterosexual marriages.

Adams and Sullivan urged the Court to strike down the law as a violation of the Equal Protection Clause of the Constitution.  However, the Court held that the executive branch’s power over immigration trumped any rights granted by the Constitution. 

The Supreme Court declined to review the holding of the 9th Circuit, and the Court’s decision remains binding today.  As recently as 2011, a Federal District Court Judge ruled that he was bound by the decision in Adams v. Howerton. 

Of course, things may change depending on the Supreme Court’s decision regarding the constitutionality of the Defense of Marriage Act (DOMA) which is expected in 2013.

Sadly, Richard Adams will not be around to see what the Supreme Court decides.  He died at the age of 65 in December 2012.  The day before he died, Sullivan, who had lived quietly in the U.S. with Adams for decades, told him that the most important victory was that they were able to remain together as a couple.

“Richard looked at me”, Sullivan stated, “and said ‘Yeah, you’re right. We’ve won.’”

Dems & GOP Clash over STEM Jobs Bill

Think that the election results will force the Democrats and Republicans to compromise on the issue of immigration? Better think again.  

In this week’s “lame duck” Congress, the House of Representatives is scheduled to take up the matter of the STEM Jobs Act of 2012 (H.R. 6429). It would provide 55,000 green cards per year for foreign-born persons with advanced degrees from U.S. universities in the physical sciences, technology, engineering and mathematics.   Everyone agrees that making these people lawful permanent residents is good for our country, and good for the economy. So, passing a bill like this should be a “no-brainer”, right?  

Not so fast. The devil, as usual, is in the details.  

The bill is sponsored by 68 Representatives, almost all of whom (67) are Republicans. The bill received the endorsement of the U.S. Chamber of Commerce and almost every high tech company in the U.S. Though it received the votes of a majority of the members of the House of Representatives, it failed to pass the first time around on September 20 because its sponsors attempted to suspend the rules to cut off debate and pass the bill during the election campaign. This required a two-thirds vote, and 158 members of Congress, mostly (153) Democrats, voted against the bill.   The Democrats chief objection to the bill is that it would eliminate the Diversity Visa Lottery, and use the visas for those with STEM degrees instead.

Why eliminate the Lottery? Because the Republicans think that we grant enough persons permanent residence already. Why not eliminate the Lottery? Because the Democrats see the Lottery as essential to insuring that persons from countries with very little immigration to the U.S. have a chance to qualify for green cards. Also, they object that if there are not enough STEM graduates to fill the quota, the unused numbers cannot be used for those in backlogged employment and family categories.  

The Democrats had already introduced their own STEM bill, the “Attracting the Best and Brightest Act of 2012” (H.R. 6412). This bill would provide 50,000 green cards for STEM graduates while leaving the Visa Lottery in place. However, their STEM program would “sunset” after two years. This bill was not voted upon. Then the Democrats introduced the “BRAINS Act” in the Senate which would grant green cards to STEM graduates while preserving the Visa Lottery. Unused numbers would help reduce backlogs in the EB categories.  

Both political parties, in their platforms, profess strong support for granting green cards to STEM graduates. Even if the Republican bill passes in the House this coming week, the GOP needs to work out a deal with the Democrats if they expect the bill to pass in the Senate and be signed by the President.  

I am not a big fan of the Visa Lottery. It seems a little crazy to hand out green cards randomly when millions of people sponsored by US employers and US citizen relatives must continue to wait in line for many years (or even decades). However, since both parties generally agree on the need for green cards for STEM graduates, wouldn’t it be best to pass a bill on this, and tackle other issues like the Visa Lottery separately?  

I like the Republican idea of a permanent STEM program, and the Democrat’s idea of having the unused STEM numbers be used to help those stuck in long EB backlogs.  

This week, the Republican STEM bill in the House will be amended to allow spouses and children of permanent residents to reunite with their families in the U.S. a year after I-130 petitions are filed on their behalf. They would not be permitted to work until they receive their green cards, but hundreds of thousands of families would be united. This is certainly a step in the right direction.   Let’s see if both sides can do a little “horse trading” this week, put aside their differences and pass a compromise STEM bill.

GOP Leader's About Face on Immigration

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.”

9th Circuit CSPA Victory: Don't File Yet!

 

Over four years after our law firm sued the USCIS and the State Department in DeOsorio v. Mayorkas to preserve the "automatic conversion" clause in the Child Status Protection Act (CSPA), on September 26, 2012, an en banc (11 judges) panel of the U.S. Court of Appeals for the 9th Circuit, ruled in our favor.

 

The Court held that CSPA protects the rights of children who age-out during the process of waiting for their priority dates to become current before their parents immigrate under the family-based 3rd (sponsorship by a U.S. citizen parent) and 4th (sponsorship by a U.S. citizen sibling) preference category. The Court held that CSPA clearly allows aged-out sons and daughters to keep the priority date of the 3rd or 4th preference petition, and to immigrate under the family-based 2B (unmarried adult son or daughter of a permanent resident parent) category.

 

Since this victory, our office has been deluged with questions and requests from immigrants, their children and their attorneys. "Dear Mr. Shusterman, I live in the 9th Circuit, can you handle my case? I am attaching an article by attorney so-and-so that says that I should apply immediately."

 

The truth is that it would be reckless for most persons who benefit from the Court's decision to apply immediately. Why? Because the government has 90 days (until the day after Christmas) to ask request that the Supreme Court of the United States to review the decision in DeOsorio.

 

Let's take the worse case scenario: You apply for adjustment of status now. In December, the government asks the Supreme Court to review the decision of the lower Court. Then, sometime in 2013, the Supreme Court accepts the case, and then (Let's hope not!) reverses the 9th Circuit. Should this occur, the USCIS will deny your application and you may find yourself under deportation proceedings.

 

Meanwhile, you have paid several thousand dollars in attorney and government filing fees. Is it worth it? I think not.

 

I recommend that you hold off applying for CSPA benefits at least until the day after Christmas. If the government does not request Supreme Court review, then we can all pop open the champagne, and I will be pleased to prepare your application for adjustment of status.

 

What if you are legally present in the U.S. or are residing abroad?

 

You will not be risking deportation if your application is ultimately denied, but you will be wasting a lot of money. Again, my advice is to wait and see what the government does. The administration is supposedly pro-immigrant, so I would hope that they would simply abide by the present decision which keeps nuclear families united.

 

Back in 2006 when our law firm won a case in the 9th Circuit Court of Appeal, Schneider v. Chertoff, which benefits foreign-born physicians who seek green cards through national interest waivers, the government simply implemented the decision without going to the Supreme Court. Let's hope that the Obama Administration will do the same in DeOsorio.

 

Is there anyone who should seek to benefit from the DeOsorio decision immediately? I can think of one class of persons who should: Those who are already in deportation proceedings, and who have nothing to lose.

 

In the meantime, I will do my best to keep you informed about when it is safe for you to apply for benefits under CSPA, and who benefits from our victory in DeOsorio.

Child Status Protection Act (CSPA) Victory!

Today, in De Osorio v. Mayorkas, the Ninth Circuit joined with the Fifth Circuit in Khalid, and held that the plain language of the Child Status Protection Act (CSPA) provides automatic conversion and priority date retention to aged-out beneficiaries of all family-based preference categories. 

The Court’s decision is an important victory in a battle that began with two lawsuits filed in 2008.  For those who have not been following this litigation, a bit of background:   

Traditionally, when a child turned 21 years of age, she was no longer eligible to immigrate to the U.S. together with her parents. Once the parents become permanent residents, they have the option of sponsoring their aged-out unmarried sons and daughters under the family-based 2B preference category. However, this entails years, or even decades, of separation. Congress passed the Child Status Protection Act (CSPA) in 2002, in part, to solve this problem and to prevent the separation of parents from their sons and daughters.

The CSPA contains two provisions to carry out this important purpose.  Under section 203(h)(1), the length of time that the visa petition was pending with the USCIS is subtracted from the child’s age on the date that the priority date becomes current. If the resulting age is under 21, the son or daughter can immigrate together with her parents.  This provision makes sure that children are not penalized for the USCIS processing times. 

If the child’s CSPA age is 21 or over after this calculation, under section 203(h)(3) she automatically converts to the appropriate category and retains the priority date of the original petition. This provision provides some relief from the harsh impact of extensive visa backlogs, by crediting the child with the years she spent waiting in line with her parents. 

Here is an example of how the automatic conversion and priority date retention clause should work:

 Mr. and Mrs. Santos, both citizens of the Philippines, were sponsored by Mrs. Santos sister, a U.S. citizen, on January 27, 1989. Their fourth-preference priority date became current on July 1, 2012. They have 3 children, born in 1988, 1992 and 1996. The sister’s visa petition was approved in one month. Therefore, their children the oldest of whom was 1 year old, and other two, not even born when the petition was submitted, are now aged 24, 20 and 16. The younger two children can immigrate together with their parents. The oldest child, who is still unmarried, would benefit by the automatic conversion clause. She would be given credit for the 23 years that she stood in line together with her parents waiting for her green card. As soon as her parents become lawful permanent residents, her category would automatically convert to the family-based 2B category, and she would be permitted to immigrate to the U.S. and rejoin her family.

Unfortunately, the government took a restrictive view of the CSPA’s automatic conversion and priority date retention clause.  In Matter of Wang, the Board of Immigration Appeals found an ambiguity with regard to what petitions are covered by the 203(h)(3).  The result?  Under Wang, only children who were derivatives of an F2A petition would benefit from the automatic conversion and priority date retention clause. 

Thus, in the example above, the daughter of Mr. and Mrs. Santos could not benefit from the CSPA.  Because she was originally included as a derivative of a fourth-preference petition, she was not eligible for the CSPA’s automatic conversion and priority date retention provisions. 

In today’s long-awaited decision, the Court found that Matter of Wang conflicts with the plain language of the CSPA and is owed no deference. 

The Court rejected the BIA’s finding of ambiguity and found that CSPA’s automatic conversion and priority date retention clause clearly applies to beneficiaries of all family-sponsored petitions.  The Court emphasized that the agency cannot impose its own interpretation when Congress has clearly spoken. 

The Court also rejected the government’s contentions that the statute is ambiguous because it cannot practicably be applied to aged out derivatives of F3 and F4 petitions.  The government argued that automatic conversion and priority date retention always requires the same petitioner, and the same petition. 

However, the Ninth Circuit reasoned that unresolved procedural questions regarding how the law will be implemented do not create an ambiguity in the statute.  According to the majority, any “change in policy announced by the statute’s plain language cannot be impracticable just because it is a change or because it does not specify how exactly that change is to be implemented.” 

In its decision, the Court expressed confidence that the agency can develop a process to implement the plain terms of the CSPA.  We hope the USCIS will begin that process now so that our clients, and the many others like them, may finally be reunited with their children. 

One caveat - As we’ve cautioned in prior blog posts, today’s decision may not be the end of the story.  Now we wait to see whether the government will ask the United States Supreme Court to review the Ninth Circuit’s decision.  If that happens, it could be quite some time before the CSPA issue is decided once and for all.  

 

Using Facebook to Support Your DACA Application

 

I recently did some counseling at a local church to assist young people with their applications for Deferred Action for Childhood Arrivals (DACA).

The biggest hurdle for them was not completing their applications, but providing the necessary supporting evidence to prove their residence and physical presence in the U.S.  When you are undocumented, it is often difficult to provide the same types of evidence that U.S. citizens and green card holders may take for granted.

How do you prove that you were physically present in the U.S. on June 15, 2012, for 5 continuous years prior to that date, and that you have resided in the U.S. since June 5, 2007?

The USCIS advises applicants to use official records.  They suggest financial records, school records, military records and employment records.

In other words, rely on your pay stubs, cancelled checks, school transcripts, rent receipts and utility bills.  That’s easy to do if you have legal status, a social security card and a driver’s license.  Not so easy if you have none of these documents.
What if you are working for cash or with a fake social security number?  You can’t get a state drivers license and you live with your parents.

What are you supposed to do?

I discovered that almost every young person that I interviewed at the church had a Facebook account since they do not ask you for your papers before you can join.  And, of course, every time you post something on Facebook, the date of the post is recorded.  Pretty cool.  But since people all over the world are on Facebook, how do your posts show that you were present in the U.S.?

Easy!  If your posts tell what you are doing, what movies you are seeing, what clubs you are hanging out with your friends at, it doesn’t take a detective to figure out your physical location.  If your friends tag you in a photo taken in front of the Matterhorn, USCIS knows that you were at Disneyland that day, not in Switzerland.
Similarly, your e-mails, your MySpace or Friendster posts and any other web page where you reveal your identity works just as well as Facebook.

By the way, you also need to prove that you are present in the U.S. on the day that you submit your DACA application.   If you ask me to be your friend on Facebook that day,   I promise to accept your invitation!

The October Visa Bulletin is a Disaster

 

On September 10, the State Department released the October 2012 Visa Bulletin. Considering that October marks the start of the 2013 fiscal year for the federal government, the new visa bulletin spells disaster for would-be immigrants playing by the rules.

The preference categories should move forward at least 4 weeks each month just so the lines for green cards do not keep getting longer and longer. In October, there should be a great leap forward since there are 226,000 unused family preference numbers and 144,000 unused employment preference numbers for the new year.

For instance, last year, the EB-2 numbers for China and India jumped ahead 3 months between September and October. This year, after being unavailable all summer long, the EB-2 category for China opens the new year over 2 years behind what the numbers were last April. EB-2 India, which was identical to EB-2 China in April, retrogresses 5 years in October! The family categories are also a disaster.

Unless we want to lose the services of tens of thousands of highly-educated persons who will go on to start businesses and create jobs, Congress should hurry up and pass a bill to recapture green cards lost in previous years and, at the same time, rid the system of per-country quotas.

 

FAMILY CATEGORIES

 

Categories	Worldwide	China (PRC)	Mexico	Philippines
1st	10-08-05	10-08-05	06-15-93	04-01-96
2A	06-01-10	06-01-10	05-15-10	06-01-10
2B	09-15-04	09-15-04	10-01-92	01-22-02
3rd	05-22-02	05-22-02	02-08-93	07-22-92
4th	03-15-01	02-15-01	06-22-96	02-08-89

   

EMPLOYMENT CATEGORIES

 

Categories	Worldwide	China (PRC)	India	Mexico	Philippines
1st	Current	Current	Current	Current	Current
2nd	1-01-12	7-15-07	9-01-04	1-01-12	1-01-12
3rd	10-22-06	02-08-06	10-15-02	10-22-06	08-01-06
Unskilled	10-22-06	6-22-03	10-15-02	10-22-06	08-01-06
4th	Current	Current	Current	Current	Current
Religious	Unavailable	Unavailable	Unavailable	Unavailable	Unavailable
5th	Current	Current	Current	Current	Current

 

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:  

 

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?

Beginning August 15, 2012, you will be required to submit your request for consideration of deferred action to USCIS through a form, along with a form requesting an employment authorization document. The total fees will be $465. USCIS is still developing the forms and will be submitting them to the Office of Management and Budget (OMB) for review. Pending OMB clearance, the forms and instructions will be available on the USCIS website on August 15, 2012. Do not submit any request to USCIS before these forms are available. All requests received before August 15, 2012 will be rejected. 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 werenot 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".

________________________________________________________________________________________________________

 

* 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.

 

Applying for Deferred Action? Proceed with Caution

Are you getting ready to apply for a work permit under the President’s new deferred action policy which will take effect in August? After practicing immigration law for over 35 years, including a few years inside the INS, I advise you to proceed with extreme caution.

Why?

Consider the following:

1) Applying for deferred action requires you to reveal a lot of information about yourself to the government. You name, address, contact information, when and how you entered the U.S., etc. You have to be unlawfully in the U.S. to qualify. In all probability, you have other members of your family who do not qualify for deferred action. Only if you are certain that your parents or other family members will not be targeted for deportation should you apply.

2) Remember that deferred action gives you only a two-year work permit. Then what happens? You don’t get a green card, U.S. citizenship or even necessarily another work permit. What if President Obama is not re-elected? Could the deferred action policy be reversed? Could the information which you provided to the government be used against you and your family? You betcha!

3) If you decide to apply for deferred action, the eligibility requirements are not entirely clear. For example, the policy requires that you have “continuously resided in the United States for at least five years” before the June 15, 2012 memo. What if, during the 5 year period, you traveled out of the U.S.? Do you still qualify? Perhaps, since the memo uses the words “resided” not “physical presence”. But if you reentered the U.S. unlawfully, you may be permanently barred from applying for a green card without a waiver. If so, would this also affect your application for deferred action? At this point, no one knows.

4) What if your application for deferred action is denied? Can you appeal? No. Can you be deported? No one knows for sure, so take care!

So, given all this uncertainty which surrounds the program, what is your best course of action? I believe you need the best legal representation you can find. Notarios and lawyers are already advertising like crazy: “We can help you! Si, se puede!” Don’t be fooled by these ads. Do what is best for you. A good place to start is by watching the video How to Select an Immigration Attorney.

CSPA Lawsuit: What's at Stake for Immigrant Families?

On June 19, Attorney Nancy Miller and I argued in favor of the rights of a class of immigrant families before an 11-judge panel of the U.S. Court of Appeals for the 9th Circuit. The Court’s decision is a few weeks or months away.

Many immigrant families are asking what this lawsuit means to them. Let me explain.

The plaintiffs are persons who immigrated to the U.S. through either their brothers or sisters (family-based 4th preference category) or one of their parents (family-based 3rd preference category). The issue is whether their sons and daughters will be able to immigrate together with their parents.

Traditionally, when a child turned 21 years of age, he no longer was eligible to immigrate to the U.S. together with his parents. The parents, once they become permanent residents, have the option of sponsoring their aged-out unmarried sons and daughters under the family-based 2B preference category. However, this entailed years, or even decades, of separation. Congress passed the Child Status Protection Act (CSPA) in 2002, in part, to solve this problem and to prevent the separate of parents from their sons and daughters.

CSPA provides that the length of time that the visa petition was pending is subtracted from the child’s age on the date that the priority date becomes current. If the resulting age is under 21, the son or daughter can immigrate together with his parents. CSPA further provides that if the child’s CSPA age is 21 or over, he “retains” the “priority date of the original petition” which “automatically converts” to the “appropriate category”.

The meaning of the above words and phrases is very clear. The priority date of the original petition is the date that the 3rd or 4th preference visa petition was submitted. The appropriate category is the family-based 2B category since the child is now the unmarried adult son or daughter of a permanent resident. This enables any period of family separation to be either shortened or eliminated.

The government disputes this by relying on the clearly erroneous decision of the Board of Immigration Appeals in Matter of Wang which held, in a two-sentence “analysis” of CSPA, that the language of CSPA is ambiguous, and that “retention” and “automatic conversion” are terms of art which are to be construed in such a restrictive fashion that no additional families would be united by this subsection of the law. Wouldn’t this render the clause be completely meaningless? No, says the government. The benefit would be that some immigrant families would no longer have to submit an additional petition for their child. Quite a “meager benefit” concluded the U.S. Court of Appeals for the 5th Circuit in Khalid v. Holder. We agree. If the 9th Circuit concurs, the automatic conversion clause will lead to the reunification of families who immigrate in any of the family and employment-based categories, as well as those who immigrate through the diversity visa lottery.

Here are two examples of how the automatic conversion clause would work:

1. Mr. and Mrs. Santos, both citizens of the Philippines, were sponsored by Mrs. Santos sister, a U.S. citizen, on January 27, 1989. Their priority date became current on July 1, 2012. They have 3 children, born in 1988, 1992 and 1996. The sister’s visa petition was approved in one month. Therefore, their children the oldest of whom was 1 year old, and other two, not even born when the petition was submitted, are now aged 24, 20 and 16. The younger two children can immigrate together with their parents. The oldest child, who is still unmarried, would benefit by the automatic conversion clause. She would be given credit for the 23 years that she stood in line together with her parents waiting for her green card. As soon as her parents become lawful permanent residents, her category would automatically convert to the family-based 2B category, and she would be permitted to immigrate to the U.S. and rejoin her family.

Under the government’s interpretation of the law, she would lose her priority date, and her parents would have to sponsor her in the 2B category, and she would have to wait, unmarried, for 32 years in order to get her green card and rejoin her family. The situation would be even worse for children born in Mexico, where the real wait for a person in the 2B category exceeds 115 years!

2. Mr. and Mrs. Patel, both citizens of India, have lived in the U.S. for 9 years, and have two children, a son of 18 who was born in India and a daughter of 6 who was born in the U.S. Mr. Patel who graduated from a university in the U.S. in computer science changed his immigration status from F-1 student to H-1B professional. His employer sponsored him for a green card in 2008 under the employment-based 3rd preference category. The PERM application has been approved and the USCIS approved the I-140 petition in 6 months. Since the EB-3 category for Indians has been stuck in 2002 for some time now, it is very possible, indeed probable, that their son will age-out before his priority date becomes current. However, as long as the Court interprets the automatic conversion clause as a benefit to prevent the prolonged separation of families, their son will be able to retain his 2008 priority date and will automatically convert to the 2B category when his parents become permanent residents. He may be able to adjust his status soon after his parents do so as long as he remains unmarried.

Should the government prevail in this lawsuit, he will be forced to go to the back of the line, and wait, unmarried, for over 10 years in order to become a permanent resident.

A note of caution: No matter how the judges of the 9th Circuit Court of Appeals rule on this matter, the losing side may ask the Supreme Court of the United States to review this decision. Should this occur, the proper interpretation of this provision of CSPA will not be decided until 2013 and no families would benefit in the meantime.