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Obama Urged to Stop Deportations

Immigration advocates are appealing to President Obama to exercise his executive power and stop the deportation of thousands of undocumented immigrants in the country while Congress is at a standstill on immigration reform. At present, over 1,000 undocumented immigrants are being deported per day. Last year, more than 400,000 were deported.

President Obama changed his policy on deportation last year and deferred the deportation of thousands of young people who were illegally brought into the country as children. Over 455,000 undocumented young people have so far been granted deferred action.

This time, however, President Obama, in an interview, indicated that he cannot change his policy on enforcement nor expand the coverage of the deferment program. He also told progressive and labor leaders in a meeting that he cannot ease enforcement because his priority is to push for the passage of the immigration reform bill. According to an advocate, the goal is “getting the immigration reform passed, and that solves the problem – not starting a whole controversy as to whether he is easing up.”

Meantime, the President instructed the U.S. Immigration and Customs Enforcement (ICE) division to focus on the deportation of felons and multiple offenders. Advocates say that the ICE and the Department of Homeland Security continue to deport undocumented workers who are without any criminal record and are separated from their families. Last month, however, ICE issued a directive advising agents “to keep enforcement actions from unnecessarily impacting parents and primary caregivers.”

The President’s refusal to stop mass deportations has prompted immigration advocates to launch campaigns to demonstrate their frustration and disappointment. Seven undocumented workers affiliated with the National Day Laborer Organizing Network recently held a protest, handcuffing themselves at the gates of the White House and carrying signs with the words, “Mr. President Stop Deportations.”

Chris Newman, legal director of the same organization behind the protest expressed his concern saying, “There’s a clear contradiction in the president’s position right now. He’s saying either the House Republican’s will come around on the path to citizenship, or I’ll be forced to keep deporting people. And that’s an untenable position.” Advocates maintain that the president has the power to stop deportations and are determined to keep challenging him.

Meanwhile, advocates are also intensifying their campaigns to pressure Congress to pass the immigration reform bill. Thousands of people are expected to join a rally and a concert at the doorsteps of Congress on October 8.

The House Republicans’ refusal to bring the immigration reform bill to the floor has increased the frustration of the immigrant community. Although many are “losing heart” with the bill being sidelined for many reasons, immigration advocates will not stop pushing for the overhaul of nation’s immigration system. As Jaime Contreras of the Service Employees International Union pointed out, “It’s time for Republican leaders to start standing up to the extremists and let them know that inaction is not an option for us. We will not stop until we win this fight.”

Driver’s License for the Undocumented

A bill allowing undocumented immigrants to receive a driver’s license will soon become a law in California. Both houses of the California legislature recently passed the bill, AB 60, and it is now on its way to Governor Jerry Brown’s desk for his signature. The Governor indicated that he will sign the bill because it will “enable millions of people to get to work safely and legally.”

The Governor wanted to make sure that the bill complied with federal law and have the license clearly indicate that it is only for driving and not for work or for obtaining public benefits. The author of the bill, Assemblyman Luis Alejo, almost withdrew the bill because he preferred the words to be discreet and written on the back of the license. He later on accepted the amendments to make the distinction clear.

Once signed into law, California will be the eleventh state to provide driver’s license to the undocumented. For a number of years, Washington state, New Mexico and Utah have allowed undocumented immigrants to obtain driver’s license. Illinois passed a similar law January of this year. It was followed by Nevada, Maryland, Oregon, Vermont, Connecticut and Colorado.

Meanwhile, the debate as to whether the undocumented should be issued driver’s license continues. Some people look at this measure as a form of “quasi amnesty”. According to Mark Krikorian of the Center of Immigration Studies, “What it means is the government formally incorporating illegal aliens into the institutions of our society.”

Another concern is whether the bill undermines federal immigration laws. Under the bill, the Department of Motor Vehicles (DMV) will issue driver’s license to people who satisfy the requirements for a license but whose presence in the country is not authorized by federal law. Judicial Watch President Tom Fitton predicts that the U.S. Department of Justice will review it once it is signed into law.

Public safety, on the other hand, remains to be the principal argument why more states are enacting similar laws. The Economist reports that unlicensed drivers are almost five times more likely to be in a fatal crash and they are also less likely to stay in accident scenes. If the undocumented immigrant is granted driver’s license, he would not run from accidents for fear of deportation and will be more willing to cooperate with law enforcement.

Los Angeles Police Chief Charlie Beck said that the law would make the roads safer. Allowing the undocumented to apply for driver’s license would require him to undergo various tests which will determine if he is fit and capable of driving. Also, this would allow them to carry insurance and avoid hit-and-run accidents.

The law will also address the problem of undocumented immigrants who are stopped at routine checkpoints and whose cars are impounded because they don’t have valid licenses. Also, it will help decriminalize the daily activities of the undocumented such as driving his kids to school or driving to work to earn a living.

To ensure that the driver’s license issued is not used to avail of federal benefits, the license issued is distinct from that of U.S. citizens or residents. The license cannot be used for identification when boarding airplanes. It is merely issued for the privilege of driving. The license, however, cannot be used as a basis to discriminate against the holder.

It is hoped that with the passing of this bill in California, Congress will finally see the urgent need to address the problems of the undocumented in the country and pass the immigration reform bill.

Visas for Crime Victims Reach Annual Cap for Four Straight Years

Each year, 10,000 U nonimmigrant visas are available to victims of crime who suffered substantial mental or physical abuse and are willing to help law enforcement in the investigation and prosecution of the crime. For the past four years, including fiscal year 2013, the statutory limit was reached.

Since the U-visa program started in 2008, over 76,000 U visas have been issued to victims and their families. Congress created the program to “strengthen the law enforcement community’s ability to investigate and prosecute cases of domestic violence, sexual assault, human trafficking, and other crimes, while also offering protection to victims.”

The visa is available to crime victims who are in the United States or abroad. Filipino teachers and domestic workers who have been victims of trafficking have applied for this visa.

To request U nonimmigrant status, the crime victim must file with the Vermont Service Center Form I-918 and Form I-918 Supplement B which is a certification from a U.S. law enforcement agency.

The principal applicant for U visa may petition a qualifying family member for a nonimmigrant derivative visa. If the principal applicant is under 21, he may petition his spouse, children, parents and unmarried siblings under 18. If the principal applicant is 21 years old or older, only the spouse and children under 21 may be included. The principal applicant will have to file Form I-918 Supplement A for the qualifying family member.

USCIS continues to accept U-visa petitions for fiscal year 2014 and will process them in the order they are received. It will start issuing U visas on October 1, 2013, the first day of fiscal year 2014. Petition for U visa requires a certification of assistance from law enforcement on Form I-918B.

Holders of U nonimmigrant visas may apply for permanent residence. To be eligible, the applicant must have been physically present in the U.S. for a continuous period of at least three years since the first date of admission as a U nonimmigrant and must continue to hold that status at the time of the application for adjustment of status.

Also, the applicant must not have unreasonably refused to provide assistance to the investigation and prosecution of the crime, is not inadmissible under section 212(a)(3)(E) of the Immigration and Nationality Act, and must establish that his presence in the U.S. is justified on humanitarian grounds, to ensure family unity or in the public’s best interest. To adjust status, the applicant must file Form I-485 and concurrently file Form I-693 Report of Medical Examination and Vaccination Record.

Family members of a U nonimmigrant may also apply for a green card; however, the benefit only extends to spouse, children and parents of the U nonimmigrant but not to siblings. If the family member already holds a derivative U nonimmigrant status and meets the basic requirements for eligibility, the qualifying family member must file Form I-485 to adjust status. Qualifying family members who never held a derivative U nonimmigrant status may also apply for a green card. To be eligible, the qualifying family member must not have been admitted to the U.S. on a U nonimmigrant status and that either the family member of the U principal applicant would suffer extreme hardship if the family member is not allowed to remain or enter the U.S.

The U principal applicant must file an immigrant petition on Form I-929 for the qualifying family member. He may file petition concurrently with or after he files his adjustment of status application. The I-485 application of the U principal applicant must be approved first before Form I-929 petition can be approved.

Once Form I-929 is approved, the qualifying family member who is already in the U.S. may file Form I-485. Form I-485 application of family member cannot be filed concurrently with Form I-929. If living abroad, qualifying family member may apply for visa through consular processing.

Adjustment of Status Granted Despite Gap In Lawful Status

A foreign national with an approved employment-based immigrant petition whose priority date is current may apply for an immigrant visa through consular processing abroad or apply for adjustment of status if applicant is already in the U.S. Adjustment of status is the more preferred route because the applicant is eligible for work authorization and permission to travel while the application is pending.

To be eligible to adjust status, the applicant must meet the basic requirements, namely, physical presence in the U.S. at the time of filing, having lawfully entered the U.S. through inspection by a U.S. immigration officer or paroled into the U.S., and not being subject to any of the inadmissibility grounds.

Foreign nationals who have incurred “unlawful status” are generally not eligible to adjust status. However, certain employment-based adjustment applicants may still obtain approval of their I-485 adjustment of status applications despite gaps in lawful status. Under Section 245(k), they may adjust status if the total period of their unlawful status is not more than 180 days.

A recent case appealed to the Board of Immigration Appeals (BIA) involved Lorna Maynigo, a Filipino citizen, who entered the United States on June 24, 2001. She changed her status to H-1B which was valid until August 29, 2006. She timely filed a request for extension of her H-1B status on August 28, 2006.

The Citizenship and Immigration Services (CIS) denied Maynigo’s request for extension on March 7, 2007. She subsequently filed an application for adjustment of status on June 29, 2007 based on an approved I-140 employment-based visa petition. The priority date for the visa petition was current. The CIS denied her adjustment of status application and she was placed in removal proceedings before an immigration judge.

The immigration judge (IJ) disagreed with the CIS and found Maynigo to be eligible for adjustment of status under Section 245(k). The IJ clarified that under Section 245(k), an employment-based immigrant may adjust status if (1) the applicant is in the U.S. pursuant to a lawful admission and (2) after being admitted pursuant to a lawful admission, the applicant cannot have exceeded more than 180 days in the aggregate of any of these violations: (a) “failed to maintain continuously” a lawful status; (b) engaged in unauthorized employment; or (c) otherwise violated the terms and conditions of admission.

According to the CIS, Maynigo was “out of status” since the expiration of her H-1B on June 29, 2006. The IJ disagreed, saying that because Maynigo filed a timely application for extension of her H-1B status, she maintained lawful status under the terms of Section 245(k) while that extension application was pending. The IJ further stressed that the only period that Maynigo “failed to maintain” her status was the period between March 2007 when CIS denied the request for extension of her H-1B and June 2007, when she filed for adjustment of status. The period was approximately three-and-a-half months which was less than the 180 days allowed under Section 245(k).

The IJ also noted that if the court denies Maynigo’s adjustment application, she would be forced to apply for immigrant visa through consulate process. She would then be subject to the three or possibly ten-year bar for unlawful presence and would not qualify for waiver of that ground for inadmissibility.

The IJ found the consequences of a denial too harsh for an individual who has done everything in her power to maintain lawful status since coming to the U.S. and would unduly penalize her for the brief period she failed to maintain lawful status. For this reason, the IJ found that she deserved the court’s favorable exercise of discretion and granted her application for adjustment of status.

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