Seguritan US Immigration Articles

DOJ Petitions For Rehearing of DAPA/DACA+ Case

It may not yet be end of the road for the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and the expanded Deferred Action for Childhood Arrivals (DACA+). On July 18, the Department of Justice filed with the US Supreme Court a petition to rehear United States versus State of Texas.

In its petition, the Department of Justice argued that “the Court should grant rehearing to provide for a decision by the Court when it has a full complement of Members, rather than allow a nonprecedential affirmance by an equally divided Court to leave in place a nationwide injunction of such significance.”

The petition underscored that although it is exceedingly rare, it is not a new practice for the Court to grant a rehearing. In the past, it has also granted rehearing in other cases especially when the court was unable to obtain a decision due to a vacancy. It was not also uncommon that upon reargument, a majority vote was arrived at.

The petition highlighted the immediacy of the resolution of the case. With the Supreme Court’s deadlock on the issue, the preliminary injunction issued on February 16, 2015 by US district court Judge Andrew Hanen which was later affirmed on appeal by the Fifth Circuit, stays. And although the Fifth Circuit is only made up of three states— Texas, Louisiana and Mississippi, the injunction nevertheless effectively halted the implementation of the two immigration initiatives introduced by Pres. Barack Obama back in 2014.

“The preliminary injunction prohibits the government from implementing the Guidance anywhere nationwide; there is no reason to expect that the district court would issue a permanent injunction that is narrower. Unless the Court resolves this case in a precedential manner, a matter of ‘great national importance’ involving an ‘unprecedented and momentous’ injunction barring implementation of the Guidance will have been effectively resolved for the country as a whole by a court of appeals that has divided twice, with two judges voting for petitioners and two for respondent States,” the petition stated.

This is a welcome development and one that has given a glimmer of hope to potential recipients. However, the rehearing depends on the confirmation of a ninth judge which may happen after the November US Presidential elections. The Court could dismiss the case for lack of standing of the plaintiff or reverse the decision of the Fifth Circuit thus allowing DAPA/DACA + to be implemented. It could also affirm the Circuit’s decision and uphold the injunction and the case would go back to the district court whose decision could eventually be appealed to the Fifth Circuit and the Supreme Court a second time.

While waiting for this new development to take some steps forward, it must also be noted that the Supreme Court’s ruling did not affect the president’s authority to establish priorities for the enforcement of immigration laws and the grant of deferred action. Shortly after the SC made its decision, Obama clarified that undocumented immigrant who are otherwise qualified under DAPA and DACA+ and have no criminal conviction, are still among the lowest priority for deportation. The Department of Homeland Security (DHS) therefore still has authority to review and grant individual request for deferred action.

The decision also did not affect the DACA which was announced by Obama back in 2012. Those who meet the program’s criteria established in 2012 may continue to apply – both first-time applicants and the DACA recipients who seek to renew their deferred action and employment authorization.

Based on estimates, there are about four million undocumented immigrants who could have benefited from DAPA and DACA+. Of that figure, there are still those who can avail of other forms of deportation relief. In fact, according to the American Immigration Lawyers Association (AILA), 14.3% of DACA-eligible population may qualify for other forms of relief, even more permanent than DACA+ and DAPA.

Fight for DAPA/DACA To Continue Despite SC Ruling

Immigration was at the forefront of very significant events last week. On June 23, the United Kingdom voted to leave the European Union and immigration concern was a major factor. Meanwhile on the same day, here in the United States, the Supreme Court deadlocked on Pres. Barack Obama’s immigration initiatives.

The Supreme Court’s evenly-divided decision in the case of United States v. Texas means that the lower court decision against the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and the expansion of the Deferred Action on Child Arrivals (DACA) stays.

Pres. Obama introduced DAPA and DACA expansion in November 2014 following the failure of Congress to pass a comprehensive immigration reform bill. DAPA and DACA were meant to ease the threat of deportation of more than 4 million undocumented immigrants.

After Obama announced these immigration initiatives, Texas and 25 other states filed a lawsuit in the district court claiming that the expanded DACA and DAPA violated the “take care clause” of the Constitution. They also argued that the initiatives were not in accordance with immigration laws and violated the Administrative Procedure Act (APA). The district court judge issued a preliminary injunction blocking the implementation of these policies.

On appeal by the government, the Fifth Circuit upheld the injunction. Thus, the case found its way to the Supreme Court.

DAPA would temporarily defer deportation for those who have a US citizen or LPR son or daughter as of November 20, 2014 and who have continuously resided in the US since January 1, 2010 but with no lawful immigration status. As long as they had no criminal convictions and have passed a background check, these undocumented immigrants could benefit from DAPA.

DACA, on the other hand, was first introduced by the Department of Homeland Security (DHS) back in 2012. Those under 31 years old on June 15, 2012, have arrived in the US before becoming 16, have continuously resided from June 15, 2007 to the present, are either in school, have graduated or completed high school or a general education development (GED) certificate, or are honorably discharged veterans of the US Coast Guard or US Armed Forces and have not been convicted of a felony can benefit from DACA. The expanded DACA eliminated the age requirement and pushed the arrival date to January 1, 2010.

Since its implementation in 2012, DACA has resulted in the improvement of the lives and economic conditions of over 700,000 young people who were granted work permits, obtained access to public universities and scholarships, and opened a bank account, among others.

The ruling of the Supreme Court is a setback for immigrants and their families but immigrant rights advocates are vowing to continue the fight. They are urging the Department of Justice to seek a rehearing. If this is not granted, then the case will go back to the district court for a decision on the merits. If the district court decides to strike down the initiatives, the government could appeal the case all the way to the Supreme Court again.

Immigrant advocates are also continuing to lobby the US Congress to pass immigration laws that would keep families united and benefit the economy.

Consequences of Failing to Maintain Non-immigrant Status

For aliens who entered the U.S. on a non-immigrant visa, it is important for them to maintain their status and to engage only in activities consistent with the status. Aliens who fail to maintain status become deportable. They can neither change to said non-immigrant status nor apply for adjustment of status to permanent residence.

A foreign national who wishes to apply for admission into the U.S. generally applies for a visa at a U.S. consulate overseas. There are several types of visa classifications depending upon their specific purpose. Aliens who wish to come to the U.S. for pleasure are issued a B-2 visa. They are generally allowed three (3) to six (6) months to stay with a possibility to extend their status for another six (6) months.

Once a foreign national is legally admitted into the U.S., it is the date on the I-94 that governs his legal immigration status and the duration of his authorized stay in the U.S. The I-94 card is no longer issued. The foreign national can access the most recent I-94 admission record through the I-94 website. If the alien overstays or remains in the U.S. beyond the date on the I-94, the person becomes out of status.

If they overstay for six (6) months or more, they are subject to the three-year bar. If they overstay one year or more, the bar extends to ten years. The three or ten year bar means that if they leave they cannot reenter the U.S. until after three or ten years of stay abroad.

If a non-immigrant decides to pursue a different purpose or engage in another activity in the U.S., he has to apply for a change of status. An example is a person who entered as a student with an F-1 visa gets a job offer after finishing his/her studies in the U.S. Given the change of purpose of the stay in the U.S. from studying to working, the prospective employer may petition for a change of status on his behalf from F-1 to H-1B.

Likewise, a person who originally came as a tourist with a B-2 visa to visit family and friends may later on want to pursue studies in the U.S. Instead of going back to his country to apply for a new F-1 visa, the person can opt to apply for a change of status to F-1 with the U.S. Citizenship and Immigration Services (USCIS).

An alien on a B-2 visa who files Form I-539 to change status to student, may not start classes prior to its approval. An F-1 student fails to maintain his status if he fails to maintain a full course of study or if he transfers schools without permission.

An F-1 student who decides to work in the U.S. may not begin working before the Form I-129 petition filed by the employer is approved. Also temporary workers fail to maintain status if they change jobs without authorization. Those who work without authorization also fail to maintain their status.

The alien is authorized to engage in activities consistent with the status he is seeking only through the formal USCIS approval of the application to change status. If the alien took on activities not allowed under his current status, the application will most likely be denied. It is therefore important that the non-immigrant not violate the conditions of his non-immigrant visa/status.

Lawful Admission Required for Adjustment of Status

One of the requirements for adjustment of status is the alien’s lawful admission to the United States. This means that the alien must have been inspected, admitted or paroled into the US.The Immigration Nationality Act (INA) defines the terms “admitted” and “admission” as “the lawful entry of a noncitizen following inspection and authorization by an immigration officer.”

For foreign nationals who enter the US by air or sea and who are processed by the U.S. Customs and Border Protection (CBP), lawful admission is generally easier to demonstrate as they are normally issued an I-94 Form upon entry.

Since April 2013, the CBP no longer issued the paper I-94 and created an electronic I-94 Form based on the foreign national’s travel documents. The electronic Form I-94 may be printed by accessing the CBP’s website. Aside from the I-94, the CBP office also makes an annotated admission stamp on the foreign national’s passport which may also serve as proof of lawful admission.

However, for those travelling by land, there have been instances when border officials simply “wave through” foreign nationals who enter the US by car without asking any questions. Was there lawful admission in this case?

In a 1980 case, the BIA held that an alien who was “waved through” and who did not make a false claim to citizenship was “inspected” and “admitted” to the US for purposes of adjustment of status. In that case, the alien was a passenger in a car entering the US. The border official waved them through after questioning the driver. She was not asked any question nor did she volunteer any information.

The BIA reasoned that the noncitizen was “inspected” when she physically presented herself for questioning and did not make a false claim to citizenship and she was “admitted” when the officer permitted her to enter the United States.

In 1996, Congress enacted the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) and amended the INA to define the meaning of “admitted” as being “the lawful entry of a noncitizen following inspection and authorization by an immigration officer.”

However, the Board reaffirmed its earlier decision. The Board held that “lawful entry” did not require that the entry be substantially regular; it only had to be procedurally regular. In this case, the noncitizen was also a passenger of a car crossing the US-Mexico border. She was not asked any questions and was waved through by the border official. It held that, just like in an earlier case, the admission was procedurally regular and met the definition of “admission” under the INA.

Thus, if a noncitizen does not make false claim to citizenship, is not asked any questions, does not volunteer any information, and is waved through by a border official, he has been “admitted” even if he did not have valid entry documents.

The noncitizen does not gain lawful status upon entry in the United States and is still removable for being “inadmissible at the time of entry”. However, since the noncitizen was “admitted”, he is eligible for immigration benefits, such as adjustment of status in the US, if the noncitizen later on marries a US citizen, subject to other requirements under the law.

Where primary proof of lawful admission is not available such as in the case of the noncitizen who was waved through, secondary evidence may be submitted. Secondary evidence may include affidavits regarding admission.

A request for evidence (RFE) is expected when secondary evidence of lawful admission is submitted. A timely response to the RFE must be submitted even if the requested documents have already been initially submitted.

Nearly Half a Million Immigrants Overstayed Their Visa

Nearly half a million immigrants from all parts of the world have overstayed their visas, according to the recent Department of Homeland Security (DHS) Report released on January 19, 2015.

According to the report, of the nearly 45 million non-immigrant visitors who were in the United States either for business or vacation (holders of B1, WB, B2 and WT visas) and who were expected to depart the country between October 2014 and September 2015, 527,127 individuals overstayed their admissions. This placed total overstay rate at 1.17 percent which means that almost 98.83% of the non-immigrants followed their allotted visa stay and left the US on time.

Due to continuing departures, as of January 4, 2016, the number of Suspected In-Country overstays or those for whom no departures have been recorded had dropped to 416,500. It is also expected to drop even more as the number of individuals who have departed or adjusted status continues to increase.

An overstay is a nonimmigrant who lawfully came to the United States for an authorized period of time but failed to depart after the lapse of such period. The DHS identifies two types of overstays—Suspected In-Country Overstay or those for whom no departure has been recorded and Out-of-Country Overstay or those individuals whose departure was recorded after their lawful admission period expired.

The report shows that for fiscal year 2015, 226,777 Filipinos were expected to depart but 3,701 overstayed their visas. Out of this figure, there were 436 Out-of Country Overstay and 3,265 Suspected In-Country Overstay placing out total overstay rate at 1.63%.

Countries with a high total overstay rate include Afghanistan (10.86%), Burkina Faso (18.01%), Chad (17.43%), Djibouti (27.67%), Eritrea (19.28%), The Gambia (11.20%), Georgia (12.44%), Laos (18.44%), Liberia (11.93%), Mauritania (13.49%) and Federated States of Micronesia (16.00%). US neighbors Canada and Mexico have a 1.27% and 1.56% overstay rate respectively. However, some of the largest numbers were from countries like Germany with 21,394, Italy with 17,661, United Kingdom with 16,446 and France with 11,973. All of these countries are under the Visa Waiver Program (VWP).

According to the report, the DHS conducts overstay identification by examining arrival, departure and immigration status information. The Customs and Border Protection (CBP) obtains passenger manifest data from commercial air and sea departures from the US and passenger data on land departures into Canada. The report, however, admits that “determining lawful status is more complicated than simply matching entry and exit data”.

TPS Designation for Philippines

The Secretary of Homeland Security has the authority to designate a foreign country for temporary protected status (TPS) due to conditions in the country such as an ongoing armed conflict, environmental disasters and other extraordinary conditions that temporarily prevent the country’s nationals from returning safely.

Once the designation is made, TPS grants eligible nationals of the TPS country who are in the U.S. a temporary, humanitarian form of relief from deportation during the designated period and allows them to obtain work authorization and travel documents. It does not however lead to permanent residence status. Once granted TPS, the beneficiary cannot be detained by the DHS on the basis of his immigration status in the US unless he becomes ineligible or the country loses the designation.

Efforts to designate the Philippines for TPS have been made. Typhoon Haiyan, one of the most powerful storms ever recorded on land, affected over 7 million people in the Philippines. Over 5,000 lives have been lost and over 4 million people displaced.

At least three U.S. Senators, namely, Senator Charles Schumer, Senator Benjamin Cardin, and Senator Bob Menendez have submitted a request to the DHS to designate the Philippines for TPS. Other groups such as the American Immigration Lawyers Association (AILA) and the NY Legal Assistance Group have also sent similar requests.

According to them, requiring the Philippines to reabsorb its nationals from abroad, many of whom may have lost their homes, would impose a great burden on the rescue and restoration efforts in the country. TPS would provide a safe haven for those who are reluctant to return to potentially dangerous situations. It would also allow Filipinos in the U.S. to work and support their families in the Philippines who were impacted by the typhoon.

Eligible nationals of a country designated for TPS are also allowed to apply for nonimmigrant status, file for adjustment of status based on an immigrant petition and apply for any other immigration benefits or protection. The applicant must however still meet the basic requirements for other benefits sought.

To be eligible for TPS, the foreign national must meet the basic requirements, namely: that he is a national of a country designated for TPS, or a person without nationality who last habitually resided in the designated country; that he files for TPS status during the initial registration period or re-registration period or he meets the requirements for late initial filing during any extension; that he has been continuously physically present in the U.S. since the effective date of the designation; and that he has been continuously residing in the U.S. since the date specified in the designation.

Those who have been convicted of any felony or two or more misdemeanors committed in the U.S, or are found to be inadmissible to the U.S. based on grounds listed in INA section 212(a), including non-waivable criminal and security-related grounds, or are subject to any of the mandatory bars to asylum are not eligible for TPS. Those who fail to meet the initial or late initial registration requirements or fail to meet the continuous physical presence and continuous residence requirements are also ineligible for TPS.

Registration for TPS is made on Form I-821. It must be filed with Form I-765, application for Employment Authorization even if the applicant does not want an employment authorization document.

The decision to designate the Philippines for TPS lies with the executive branch of the federal government. Congress does not have to vote on it although members of Congress may make the request to the President. The decision ultimately rests with the President and his agencies.

Countries currently designated for TPS are El Salvador, Haiti, Honduras, Nicaragua, Somalia, Sudan, South Sudan, and Syria.

Criminal Convictions That Can Result in Deportation

Criminal activity by noncitizens may have immigration consequences. This is true whether they are undocumented aliens, temporary visitors or lawful permanent residents.

For individuals seeking entry or lawful status in the U.S., an admission or proof of criminal conduct could be sufficient for a finding of inadmissibility, whether as an immigrant or nonimmigrant. Individuals who are already admitted in the U.S. generally need a conviction to be considered deportable on criminal grounds.

Either way, they could find themselves in removal proceedings and ultimately deported to their home country and away from their family in the U.S., which is why deportation is sometimes seen as a worse punishment than imprisonment.

An alien may be deported for conviction of a crime involving moral turpitude committed within five years of admission and which carries a possible sentence of at least one year. Conviction of multiple crimes involving moral turpitude also makes one deportable regardless of when they were committed and whether they resulted from a single trial, as long as they did not arise out of a single scheme of misconduct.

Crimes involving moral turpitude are those that are “inherently base, vile or depraved, and contrary to the accepted rules of morality.” They include crimes against persons (e.g., assault and murder); crimes against property (e.g., robbery); sexual offenses; and crimes related to fraud (e.g., forgery and tax evasion). However, an alien found inadmissible or deportable on this ground may be eligible for relief such as waivers and cancellation of removal.

Aggravated felonies include some fifty general classes of crimes, including murder, rape, sexual abuse of a minor, illicit trafficking in controlled substances or in firearms, and crimes of violence for which the term of imprisonment is at least one year.

To be an aggravated felony, the crime of violence must involve the use or threat of physical force against the person or property of another, or by its nature involves substantial risk that physical force may be used in the course of committing the offense. Kidnapping, stalking, sexual assault and third degree assault, are examples of crimes that have been held by courts to be crimes of violence.

Offenses involving theft and burglary may constitute an aggravated felony if the term of imprisonment is at least one year. On the other hand, in a fraud and deceit offense the length of imprisonment is not what makes it an aggravated felony but rather the elements of the offense and the dollar amount of the victim’s loss, which must exceed $10,000.

Unlike crimes of moral turpitude, an aggravated felony conviction bars many forms of relief, including asylum, cancellation of removal, and voluntary departure. An alien convicted of an aggravated felony and is physically removed from the U.S. also becomes permanently inadmissible, although there is waiver for this particular ground.

In most deportability grounds, the DHS must prove “conviction”. Conviction for immigration purposes means a formal judgment of guilt of the alien entered by a court. If the adjudication of guilt has been withheld, the judge or jury must have found the alien guilty, or the alien has entered a plea of guilty or nolo contendere, or has admitted sufficient facts to warrant a finding of guilt, and the judge has ordered to be imposed some form of punishment, penalty or restraint on the alien’s liberty.

Under certain circumstances, however, conviction is not even needed to subject the alien to removal. Mere admission of criminal activity is enough if certain factors are met. First, the conduct must constitute a crime under the law of the place where it was committed. Second, the noncitizen must admit to conduct that constitutes moral turpitude. Third, the alien must be provided with a definition of the crime before he can make a valid admission to a crime of moral turpitude or involving a controlled substance. Finally, the admission must be freely made and voluntary.

Lawsuit by ICE Agents is Latest in Anti-Immigrant Attacks

Only two weeks into the implementation of the deferred action program and amidst a spate of anti-immigrant attacks against it, a group of immigration officers has filed a lawsuit challenging the policy as unconstitutional.

The plaintiffs in Crane v. Napolitano are Immigration and Customs Enforcement agents who claim that the recent directives of the Department of Homeland Security command them to violate federal law and are a usurpation of the legislative power of Congress.

They challenge in particular the June 15, 2012 memo of Sec. Janet Napolitano on deferred action for childhood arrivals and the June 17, 2011 Morton Memorandum establishing enforcement priorities, which they had complained of earlier. The agents say that they are forced to violate their oaths of office and several laws, or be disciplined for doing their job if they follow federal law and disregard the directives.

In effect, they disagree with the President’s policy to deport criminals first before students and individuals who were brought into the U.S. as young children, so much so that they refuse to be bound by the policy and have chosen to bring this difference of opinion to the court.

Many legal observers believe that the lawsuit has no merit and that it would be dismissed on jurisdictional grounds.

The group’s legal costs are shouldered by the anti-immigrant organization NumbersUSA. The agents’ lawyer is Kris Kobach, whose name may sound familiar because he authored the infamous Arizona immigration law SB1070. He also advises GOP presidential candidate Mitt Romney on immigration.

One of the claims made by the employees is that federal law does not authorize deferred action, much less the granting of this benefit to 1.7 million potential beneficiaries.

But deferred action is not new. Widows of U.S. citizens have received deferred action from the USCIS, as do women who have suffered physical and mental abuse because of rape and domestic violence who are applying for a U visa. Foreign students who were affected when Hurricane Katrina hit the U.S. were able to get deferred action. Deferred action is also a form of relief that is available in removal proceedings, whereby the DHS agrees not to deport an alien or not to execute a removal order.

I myself have in the past helped obtain deferred departure status for hundreds of nurses who would otherwise have been deported because they failed their licensure exams or changed employers without authorization. The INS agreed to give them deferred departure status for a maximum of 3 years. Many of these nurses eventually regained lawful status.

This present lawsuit is just the latest onslaught against the program that grants reprieve from deportation to deserving individuals who are in the U.S. through no fault of their own. On the same day that the USCIS began accepting deferred action requests, the governor of Arizona issued an executive order denying state benefits, including driver’s licenses, from deferred action beneficiaries. Nebraska’s governor quickly followed suit and announced that his state would also deny driver’s licenses, welfare benefits and other public assistance to DREAMErs.

Elsewhere, there are reasons for DREAMers to remain optimistic. In New York, for instance, a lawmaker has introduced a bill that would give undocumented youth access to government financial aid for college. A Colorado university has started to charge a reduced tuition fee for eligible undocumented students. A federal court also recently blocked key parts of immigration laws of Alabama and Georgia.

Guidelines for Requesting Deferred Action

Details of the process for requesting consideration of deferred action were finally released by the Department of Homeland Security (DHS) on August 3, 2012. The guidelines, published in a question and answer format, answers many questions regarding the process announced by President Obama less than eight weeks ago.

In order to clarify certain issues that the public may have regarding this process, some of the important items in the guidelines are repeated or summarized below.

Q: How does an individual who came to the United States as a child request consideration of deferred action?
A: The request will be made on a form that will be on the USCIS website on August 15, along with a form requesting employment authorization. The total filing fee is $465. Requests may be filed with the USCIS no earlier than August 15, 2012.

Q: Will information given in the request for consideration of deferred action be confidential?
A: Yes. The guidance clarifies that information given in the request is protected from disclosure to the enforcement arms of the DHS, including the U.S. Immigration and Customs Enforcement (ICE). Individuals whose cases have been deferred under this process will not be referred to ICE.

However, this protection does not apply if the requestor commits fraud or has a certain type of criminal history. USCIS guidance requires the issuance of a notice to appear or referral to ICE in certain circumstances, such as when there is a statement of findings substantiating the fraud, or when an alien is an egregious public safety case.

The guidance itself states that if the alien knowingly makes a misrepresentation or fails to disclose facts in order to obtain deferred action or work authorization, he would be treated as an immigration enforcement priority and subjected to criminal prosecution and/or removal.

Q: If the request is denied, will the alien be placed in removal proceedings?
A: If the case does not involve a criminal offense, fraud or threat to national security or public safety, it will not be referred to ICE for removal proceedings, except if the DHS finds that there are exceptional circumstances.

Q: Will dependents and relatives of the requestor benefit from this process?
A: No. Immediate relatives or dependents of childhood arrivals may not be considered for deferred action under this process unless they independently satisfy the guidelines.

Q: What are the key guidelines that must be met to be considered for deferred action?
A: To be able to request consideration of deferred action, the requestor must meet the following: be under the age of 31 as of June 15, 2012; came to the U.S. before his 16th birthday; continuously resided in the U.S. since June 15, 2007 up to the present; physically present in the U.S. on June 15, 2012 and at the time of making the request; entered without inspection before June 15, 2012 or lawful immigration status expired as of June 15, 2012; currently in school or has graduated or obtained a certificate of completion from high school, or obtained a GED certificate, or was honorably discharged from the U.S. Coast Guard or Armed Forces; and has not been convicted of a felony, significant misdemeanor, or three or more misdemeanors, and does not otherwise pose a threat to national security or public safety.

Q: How old must the requestor be in order to be considered for deferred action?
A: The alien must be at least 15 years old at the time of filing, unless he is in removal proceedings or has a final removal order or voluntary departure order, in which case the request may be filed even if he is under the age of 15.

Q: If an individual is currently in a nonimmigrant status (e.g., F-1 or H-4), can he request consideration?
A: No. Only those who currently have no immigration status and were not in any lawful status on June 15, 2012 are eligible to request consideration.

Q: Is expedited processing available?
A: No. There is no expedited processing for deferred action, so promises by unscrupulous practitioners or consultants for faster service upon payment of a fee may be fraudulent.

Q: If a case is deferred, does the individual obtain lawful status?
A: No. The guidelines reiterate the grant of deferred action will not confer any lawful status or provide a path to permanent residence or citizenship.

Q: Does the individual incur unlawful presence during the period of deferral?
A: No. If one’s case is deferred, the requestor will not accrue unlawful presence during the period of deferred action. However, it will not excuse previously accrued unlawful presence and, unless the requestor is under 18 years of age at the time of the request, unlawful presence will continue to accrue while the request is pending.

Q: If the request is denied, can the decision be appealed?
A: No. A motion to reopen or reconsider or an appeal is not available if the USCIS denies the request. USCIS will not review its determination except in two circumstances: if the denial was due to abandonment but the requestor responded timely to a request for evidence, or if the USCIS has a record of the requestor’s new address but it sent the RFE to the wrong address.

Work Authorization and Temporary Relief for Undocumented Children

Children of undocumented aliens come to the United States, usually at a tender age, without any intent to violate the law. They attend elementary and high school, some even graduating at the top of their class, and many become active members of the community. However, since they often do not have lawful immigration status themselves, they are unable to work legally in this country and they live in constant fear of being deported to a land they never considered home.

In a dramatic but long awaited move, President Obama announced recently that his administration would grant these individuals a form of immigration relief.

The new policy would grant deferred action to young undocumented immigrants who came to the United States as children. For a period of two years, these individuals would be allowed to remain in the United States without fear of being removed and, if they demonstrate economic necessity, would be given employment authorization.

An estimated 800,000 immigrants would be affected by this new policy, which achieves some of the goals of the DREAM Act (Development, Relief and Education for Alien Minors Act) that was defeated in Congress last year.

The policy is not an amnesty and does not offer a pathway to permanent residency or citizenship, which only Congress has the power to do. Deferred action is an act of prosecutorial discretion whereby the government agrees to defer removal action against an individual. It does not give positive legal status but is only a temporary reprieve from removal.

The June 15, 2012 Memorandum from the Department of Homeland Security listed the criteria to be met to be considered for the relief. To be eligible, the individual must have come to the United States under the age of sixteen (16) years; must be present in the United States prior to June 15, 2012 and must have continually resided in the U.S. for at least five (5) years prior to June 15, 2012; is currently in school, graduated from high school, obtained a general education development (GED) certificate, or honorably discharged from Coast Guard or the Armed Forces of the United States; not have been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise be a threat to national security or public safety; and not be above thirty (30) years old.

If granted, deferred action is valid for a period of two years and may be renewed. Guidance outlining the procedures has yet to be released, but the USCIS has stated that the policy will allow individuals to submit a request for a review of their eligibility and supporting documents. Deferred action will also be available to those already in removal proceedings.

Documentation to prove some of the eligibility criteria (coming into the U.S. before age 16, 5 years of residence, and physical presence as of June 15, 2012) includes financial, medical, school, employment and military records.

Individuals with certain types of criminal conviction will not only be denied deferred action because of ineligibility but in fact also be considered priorities for removal. Those who commit fraud in their deferred action request will also be referred to enforcement authorities.

Executive authority to grant administrative relief lies in Section 103(a) of the Immigration and Nationality Act which places the enforcement of immigration laws with the Secretary of Homeland Security. The executive branch has granted deferred action since the 1970s and federal courts have recognized such power.

An example of deferred action was the deferred departure granted to nurses, mostly from the Philippines, in December 1977. Hundreds, if not thousands, of nurses faced the threat of deportation. Through the efforts of the NAFL-FNG, a Filipino nursing group, which I represented as attorney, nurses were given a temporary relief of up to 3 years. Most of the nurses eventually obtained their green card.

Republican lawmakers, who are quick to cry backdoor amnesty every time President Obama wields his executive power in matters of immigration law, have predictably criticized the new policy as evidence of the president’s refusal to deal with Congress. Actually, in 2010, the DREAM Act was passed by the Democrat-controlled House of Representatives but rejected by the mostly Republican Senate. The bill was first introduced in Congress in 2001 and has been reintroduced every year since.

It will be recalled that more than one year ago after the DREAM Act’s demise, twenty-two Democratic Senators wrote a letter to the president urging him to grant deferred action to DREAM Act-eligible students.

The future of the policy is not guaranteed given that the United States may have a new executive by year-end. GOP candidate Mitt Romney has refused to say whether he would repeal the policy, apparently careful not to alienate the growing immigrant population.

Not all undocumented immigrants who were brought to the U.S. at a young age will be able to, or should, request the relief. If possible, one must seek legal advice before doing so since there are risks associated with the act of presenting oneself to the immigration authorities.

Be that as it may, the option of finally being allowed to contribute productively to society, albeit in a limited measure, should be favorably considered by anyone who meets the requirements. After all, regardless of who occupies the White House, one can always hope that our government will do the right thing.

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