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Despite Latest DAPA Setback Immigrants Remain Hopeful

President Obama’s Deferred Action for Parental Accountability (DAPA) program and Expanded Deferred Action for Childhood Arrivals (DACA) continue to be held up in the courts. With the recent unfavorable ruling of the U.S. Fifth Circuit Court of Appeals, the Obama administration has appealed to the United States Supreme Court on November 20, 2015.

For the immigrant community that has long been waiting to benefit from the programs, the decision is very disappointing.

Under the DAPA program, eligibility for deferred action is extended to certain parents of U.S. citizens and lawful permanent residents. Under the expanded DACA program, the age cap of 31 years under the original program is eliminated and the eligibility cut-off date for continuous residence in the U.S. is moved from June 15, 2007 to January 1, 2010. Some five million immigrants were expected to benefit from the programs.

This is the second time that the Fifth Circuit ruled against the administration. It can be recalled that after U.S. District Judge Hanen refused to lift the temporary injunction he issued on February 16, 2015, the government filed a motion for an “emergency stay” of the order. The Fifth Circuit, in a 2-1 decision, denied the government’s emergency request to lift Judge Hanen’s injunction.

The administration decided not to bring the emergency request to the U.S. Supreme Court. They focused instead on their appeal of U.S. District Judge Andrew Hanen’s decision. On November 9, 2015, the Fifth Circuit, once again, in a 2-1 decision, ruled against the government and upheld the lower court’s injunction. The Obama administration has formally requested the U.S. Supreme Court to review the Fifth Circuit decision by filing a petition for certiorari.

Meanwhile, the Texas Attorney General’s office has requested the U.S. Supreme Court for more time to respond to the administration’s appeal. If the U.S. Supreme Court denies his request, a decision is expected in June 2016.

The Texas Attorney General in his request for extension to file his response indicated that the U.S. Supreme Court has “numerous pressing deadlines in other cases” pending before the administration filed its appeal. If the request of the Texas Attorney General is granted, it would most likely delay the U.S. Supreme Court’s decision until the mid-2017.

With the presidential elections coming up, advocates are speculating whether the U.S. Supreme Court will immediately review the case or delay its decision until the next president is elected into office. With the Republican candidates vowing to cancel the program and the Democratic candidates promising to expand it, the decision will have far-reaching implications.

Despite the delays and hurdles, the immigrant community remains hopeful. As Elsa Caballero, president of SEIU Texas aptly stated, “We have faith that the Supreme Court will ultimately rule in favor of American principles—of inclusion.”

May a Derivative Beneficiary Adjust under Section 245(i)?

An alien who is out of status, worked without authorization, or who entered the U.S. without inspection or as a crewman, is generally ineligible to adjust status. However, the alien may still obtain approval of his I-485 adjustment of status application if he can benefit from Section 245(i) of the Immigration and Nationality Act (INA).

To be covered under Section 245(i), an alien must be the beneficiary of an immigrant visa petition or labor certification that was properly filed and approvable when filed on or before April 30, 2001. If the visa petition or labor certification was filed between January 14, 1998 and April 30, 2001, the alien must prove that he was in the U.S. on December 21, 2000. The alien is required to pay a penalty of $1,000.

An alien who is “grandfathered” under this section, is not limited to adjusting on the basis of the qualifying petition or application but may seek to adjust on any other basis for which the alien is eligible.

The principal grandfathered aliens are the principal beneficiaries of visa petitions or labor certifications filed on or before April 30, 2001.

Derivative grandfathered aliens, on the other hand, refer to the dependent spouse and children of principal grandfathered aliens. To qualify as a derivative grandfathered alien, the spouse or child relationship must have existed when the petition or labor certification was filed on or before the April 30, 2001 sunset date.

Spouse or child relationship created after that date or after-acquired spouses and children do not qualify as “grandfathered aliens.” They may not independently benefit from Section 245(i). However, they may apply as dependents of the principal grandfathered alien.

Subsequent changes in circumstance such as divorce from or death of the principal grandfather alien or the child turning 21 do not affect the status of derivative grandfathered aliens. Both the principal grandfathered alien and the derivative grandfathered alien may be the principal adjustment applicant under Section 245(i).

A recent case appealed to the Board of Immigration Appeals (BIA) involved a husband and wife who are citizens of the Philippines. The female respondent entered the U.S. on a B-2 visa on July 25, 1996 and the male respondent on October 31, 1999 also on a B-2 visa. They were married on October 29, 2007. Both overstayed their temporary visas.

The wife was the beneficiary of an employment-based petition filed on her behalf on April 9, 2001 which was withdrawn in February 2002. She was also the beneficiary of an approved employment-based petition filed on June 12, 2006.

The husband, on the other hand, was the beneficiary of an approved I-130 petition filed by his former wife on November 1, 2000.

They sought adjustment of status under Section 245(i) based on the wife’s second approved I-140 petition. They argued that the wife was a grandfathered alien based on the first visa petition filed in April 2000 and second, that they are both grandfathered based on the I-130 visa petition of the husband filed in November 2000.

The BIA held that the wife did not qualify as a “grandfathered alien” because the first I-140 petition filed on her behalf was not approvable when filed. To be “approvable when filed,” the petition must have been properly filed, meritorious in fact and non-frivolous.

The first I-140 petition sought to classify her as an “alien of extraordinary ability.” The evidence did not show that she would have qualified for the visa classification had the petition been adjudicated.

Also, even if it appears that her husband was a principal grandfathered alien based on the I-130 petition filed in April 2000, she is not considered a derivative grandfathered alien based on that petition because they were not married at that time. They were only married in October 2007.

The BIA ruled that since the wife is not covered by Section 245(i), she is ineligible to adjust status. Because she is barred to adjust status, it follows that her husband is also ineligible to adjust status as her dependent.

Nonimmigrant Visa Processing in Canada and Mexico

Many individuals in the United States choose to apply for or renew a nonimmigrant visa in a country other than their home country to save on time and expense. Because of their proximity, Canada or Mexico are popular choices for this type of consular processing.

This is what’s called Third Country National (TCN) visa processing because the applicant is neither a citizen nor a national of the third country. Applicants will have to pay their visa application processing fee before scheduling their appointment.

TCN processing usually means less time away from work or family than if the individual were to obtain a visa in his/her home country. It could also be considerably cheaper. As an example, for most Filipinos the drive or flight to Canada or Mexico costs less than a plane ticket to the Philippines.

However, TCN processing also carries with it potential risks which visa applicants must be aware of.

For one, the issuance of a visa may be delayed for some reason, in the security checks for instance, which means that until the applicant obtains a valid visa stamp, he/she cannot return to the U.S. The applicant may have to make arrangements for an extended stay in the third country which could be a problem, for example, in some posts in Mexico when local violence erupts and causes a suspension of consular operations.

If the application is denied and the consular official cancels the individual’s prior visa, the applicant would have to wait for visa issuance at the third country or go directly to his/her home country.

Moreover, not all types of nonimmigrant visa applicants may apply in Mexico or Canada. Applications for E visas from third country national applicants who are not residents in their consular district are not accepted.

Applications from nonresident TCNs who are nationals of countries designated as sponsors of terrorism are also not accepted.

Applicants who have been out of status in the U.S. for violating the terms of their visa or those who overstayed their I-94 validity may not consular process as a TCN. Aliens who overstay their visa, even by one day, who are subject to Section 222(g) of the Immigration and Nationality Act are generally not allowed to apply for a nonimmigrant visa via TCN processing.

TCN applicants must therefore be reminded to be ready for potential delays at the third country. They have to be mindful of timing issues and the logistics of the trip (such as biometrics schedules and pick-up of passport after visa issuance). Additionally, in some cases they may have to first get a visa in order to enter Canada or Mexico

Second, they must research the policies of a specific consular post where they intend to apply and check if it has jurisdiction over the application.

Finally, they need to carefully review their immigration history and status. Processing in Canada or Mexico is reserved for “clearly approvable” TCN cases. Individuals who have fallen out of status under Sec. 222(g) must apply for a visa from their home country, and those with potential admissibility issues are better off consular processing back home.

Residence and Physical Presence Requirements for Naturalization

Basic residence and physical presence requirements must be met in order to qualify for naturalization. The noncitizen applicant must be a lawful permanent resident (LPR). However, certain non-residents who served in the U.S. military are an exception and may qualify for U.S. citizenship.

As a general rule, the noncitizen must have continuously resided in the U.S. as a lawful permanent resident five years immediately prior to applying for U.S. citizenship.

The application is made on form N-400 and may be filed 90 days early or 3 months before the end of the required continuous residence period.

Only three years of continuous residence is required for spouses of U.S. citizens. The U.S. citizen spouse through whom the noncitizen obtained his lawful permanent resident status must have been a U.S. citizen during those three years and they must also have been living together as husband and wife. The noncitizen will have to complete the five year continuous residence requirement if the marriage ends in less than three years.

The three year continuous residence requirement also applies to spouses and children who obtained lawful permanent resident status through the Violence Against Women Act (VAWA).

Continuous residence is not the same as physical presence. To meet the continuous residence requirement, the noncitizen does not have to be physically present in the U.S. throughout the entire five or three year period.

Absences of six months or less from the U.S. are acceptable and will not disrupt continuous residence. However, absence from the U.S. for six months but less than one year raises a rebuttable presumption that U.S. residence has been abandoned.

A finding of abandonment of residence will disrupt continuous residence and may result in a denial unless the applicant demonstrates lack of intent to abandon residence. Evidence which may establish continuity of residence include not terminating employment in the U.S., presence of immediate family in U.S., retention of full access to U.S. home and not obtaining employment abroad.

Absence from the U.S. for one year or more will interrupt the continuity of residence. Counting the relevant period will begin again when the noncitizen returns to the U.S. Applicants do not have to wait for the full period to file the N400 application. Spouses of U.S. citizens can file after two years and one day while other LPRs can file after four years and one day.

There are instances when an absence from the U.S. for one year or more may be excused. These include employees abroad working for certain U.S. government agencies and U.S. companies. They must however seek permission to preserve their residency for naturalization purposes by filing Form N-470.

The applicant for naturalization must also meet the physical presence requirement. The noncitizen must have been physically present in the U.S. for one half of the required residence period.

Applicant must be in the U.S. for an aggregate period of not less than 30 months for the five-year period, and 18 months for the three-year period. Employees abroad working for the U.S. government and firms must also satisfy this requirement.

The applicant must reside within the state or within the USCIS district where the application is filed for three months immediately prior to the filing of the application.

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