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Contentious Issues Emerge in Immigration Proposals

Efforts towards coming up with a comprehensive immigration reform bill are rapidly gaining momentum. Bipartisan groups in both the Senate and House of Representatives are now working on their own versions of a draft bill to fix the broken immigration system.

Although the bipartisan group in the Senate earlier announced that they are aiming to complete their version of the bill by the end of March, Senate Majority Leader Harry Reid recently announced that they want the draft bill to go through the “normal traditional process” even if it takes more time. This is to build the support from its Republican members. The Senate is seen to complete a draft bill by June of this year at the latest.

A number of House members from both parties are also aiming to come up with a draft bill in the month of February. The draft of the House bill largely reflects the framework initially presented by the Senate. Similar to the proposed framework of the bipartisan group of senators, the draft House bill provides a “path to citizenship” to undocumented immigrants, intensified enforcement and border security measures and an effective employment verification system.

The draft House bill also conditions granting permanent residence to undocumented immigrants on the government’s success in securing the borders. However, unlike the Senate framework, it does not provide for the creation of a commission tasked to make a determination whether the borders are already secure.

For the Republican senators who came up with the proposed immigration reform framework, hinging the issuance of green cards to undocumented immigrants on border security is essential.

The proposition draws major concern because there is always the issue of whether the border is secure enough and it remains uncertain how long this process would take. President Obama, for his part, stands by his proposal to provide a clear and direct path to citizenship and not just create “some vague prospect in the future that it will happen.”

Although the proposals are generally in tune with the President’s immigration plan, this is one of the key differences between the President’s plan from the Senate’s immigration reform framework and the draft House bill. This is a critical issue which will without doubt spark long and heated debates. Another major difference is the President’s plan to provide same-sex families the same immigration benefits enjoyed by heterosexual families.

Aside from the two contentious issues, the proposals, including the President’s, put emphasis on eliminating long waits for family-based petitions, adding visa numbers to reduce backlogs and wait time for employment visas, and expediting the process for DREAMers to obtain citizenship, among others. The President’s plan particularly creates a “start-up” visa for investors and expands their opportunities in the U.S. He also recognizes the need to invest in the country’s immigration courts and provide wider discretion for judges to keep families intact.

Also, the proposals stress the need to provide advanced degree graduates of U.S. universities in the fields of science, technology, engineering and math with green cards. In fact, a group of bipartisan senators just proposed a bill called the I-Squared Act of 2013 to address the matter.

Fleshing out the details and coming up with a complete bill will be a challenge. The President is looking to having a comprehensive immigration reform bill passed in six months. Hopefully, our legislators won’t let us down.

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.

No Need to File for Deferred Action in Haste

The USCIS began accepting applications for deferred action on August 15 after making the forms available on its website the day before. Meanwhile, DREAMers are turning out in large numbers, participating in community workshops and seeking legal assistance, in anticipation of submitting their requests for consideration of deferred action.

Since the USCIS is expected to be deluged with these requests in the coming weeks and months, some individuals may think that it is better to get ahead of the pack by filing their applications early.

But perhaps it is more important to get one’s application right than to just simply get it filed. Making sure that an application is complete will help prevent unnecessary delays. A carefully prepared application will also prevent denials in cases that would otherwise merit a grant of deferred action.

Another reason why an applicant should not hastily submit a request is the fact that the new process would not allow him to appeal a denial or to file a motion to reopen or reconsider the denial.

The deferred action applicant must make sure to submit evidence that he meets the key guidelines under the new process. Examples of documents to demonstrate eligibility were provided in the guidelines issued by the DHS a few weeks ago.

To prove identity, the applicant may submit a passport, birth certificate with photo identification, a school ID with photo, or a U.S. government immigration or other document with the applicant’s name and photo. To show that he came to the U.S. before age 16, the applicant can submit a passport with an admission stamp, Form I-94, an INS or DHS document stating the date of entry, U.S. school records, travel records and hospital records.

To prove physical presence as of June 15, 2012 and continuous residence since June 15, 2007, applicants may submit rent receipts, utility bills, pay stubs, school records, religious records, money order receipts, passport entries, birth certificate for children born in the U.S., dated bank transactions, Social Security cards, car license receipts or registration, rental agreement contracts, tax receipts and insurance policies.

A final order of exclusion, deportation or removal and an I-94 with an expired date of authorized stay may be used to demonstrate that the applicant lacked lawful status as of June 15, 2012. School transcripts, report cards, high school diploma or GED certificate will prove the applicant’s student status as of the time of the request.

It is still unknown how long USCIS will take to process each application. If an applicant’s submitted documentation is insufficient, the USCIS may send him a request for evidence or ask him to appear at a USCIS office. The adjudication process also involves biographic and biometric background checks as well as supervisory review.

After deferred action is granted, the applicant may apply for advance parole if he wants to travel outside the U. S. He must file Form I-131 Application for Travel Document and pay the $360 filing fee. Generally, advance parole will be granted if the travel is for humanitarian, educational or employment purposes. Form I-131 cannot be filed concurrently with the deferred action request.

Those whose cases have been deferred under this process but already have a final order of removal may also request advance parole. However, if advance parole is granted the applicant must first reopen the case and obtain an administrative closure or termination before traveling outside the U.S.

The guidelines provide that it will be possible to apply for the extension of the period of deferred action. The applicant would also have to request an extension of his employment authorization. Even individuals who have turned 31 years old can request an extension as long as they were not above age 30 on June 15, 2012.

Pointers for DREAMers as they Get Ready for Deferred Action

As the Department of Homeland Security is set begin implementation of the deferred action application process, undocumented individuals who came to the U.S. at a young age, commonly referred to as the DREAMers, should complete collecting documents to support their application. At the same time, however, they must be wary of immigration scams.

These DREAMers must document their history in the United States – their date of entry, physical presence, continuous residence, and educational history – in order to present as complete and strong a case as possible. Financial records, medical records, school records, employment records and military records may be used to prove one or several criteria.

Documents that may be useful include immigration records, I-94 cards, driver’s licenses, birth certificates of the applicant and any children born to him/her in the United States, marriage certificates, utility bills, tax returns, lease agreements and rent receipts, dated photographs, bank statements, cancelled checks, diplomas and transcripts.

Individuals who have a criminal history might be found ineligible and be subjected to deportation proceedings so if an applicant has a criminal conviction, he/she should obtain a certificate of disposition from the court and seek legal advice before applying for deferred action.

Prospective applicants should watch out for notarios and unscrupulous consultants who promise that they can already start the application upon payment of a fee. Until the details of the application process are made public, a request for payment of application or filing fees may be fraudulent. The new policy is not an amnesty and promises of a green card or path to U.S. citizenship are false.

Only qualified lawyers can give legal advice and not notarios or notary publics, so make sure that your lawyer is a member of the state bar association before using his/her services.

In the days leading up to the announcement of the application procedure, more and more stories of immigration fraud become exposed. For example, there have been reports that a scam artist had been calling immigrants and identifying himself as a USCIS officer. He/she would ask for certain data such as the I-94 number and the “A” number and, supposedly in order to rectify a discrepancy with their records, ask for money to be wired via Western Union.

To avoid being the victim of immigration fraud, everyone must be alert and proactive.
Many references are available online to help prevent immigration fraud, such as the U.S. Federal Trade Commission (FTC) which has a dedicated site at www.ftc.gov/immigration, and the American Immigration Lawyers Association-sponsored website www.stopnotariofraud.org. Those who believe that they were the victim of immigration fraud must report it to the FTC.

The new policy announced by President Obama last June is expected to spare some 800,000 individuals from deportation. Under the June 15, 2012 Memorandum, certain immigrants will be eligible for administrative relief in the form of deferred action for two years, subject to renewal, and eligibility for employment authorization.

Deferred action refers to the discretionary determination to defer removal action against an individual as an act of prosecutorial discretion. It does not grant legal immigration status. The memorandum stated that the federal government would create a process for the application in sixty days.

To be eligible for deferred action, the following criteria must be met: (1) applicant came to the United States under the age of 16; (2) continuous residence in the U.S. for at least 5 years prior to June 15, 2012; (3) currently in school, graduated from high school or obtained general education development(GED) certificate, or honorably discharged from the Armed Forces; (4) not convicted of a felony offense, significant misdemeanor offense, or multiple misdemeanor offenses, and not otherwise a threat to national security or public safety; and (5) age 30 or below.

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