One way to Adjust Status to permanent residence status in the United States is by marriage to a U.S. Citizen. Through adjustment of status, an undocumented person may achieve permanent residence status without returning to his/her native country to consular process. This has many benefits, such as not having to trigger the unlawful presence “bars” by leaving the country. But not everyone qualifies for this priviledge. The first qualification for adjustment of status is that you last entered the United States on some sort of legal visa and inspection by a U.S. Immigration Officer. This can be a visitors visa, student visa, guest worker, etc. Even if you overstayed your permitted length of stay, by entering with inspection and marrying a U.S. Citizen you become an immediate relative, and are thereby meet the first qualification. The second qualification is that you must be “admissible.” By “admissible”, that means you have no criminal history, among other things, that would fall under the enumerated grounds of “inadmissibility.” Previous negative immigration history such as prior orders of removal could bar you from adjusting status. If you do apply to adjust status through marriage, then you must be prepared to prove that your marriage was bona fide and not contracted solely for the purpose of obtaining an immigration benefit. If you have previously filed to adjust status through a previous marriage, and your application was denied because USCIS determined that marriage was fraud, then you likely will be prohibited from adjusting status through a subsequent marriage. Adjustment of Status can be complicated and there are many pitfalls in the process. Seek the counsel of an attorney experienced in family immigration to help you apply with the proper evidence for a successful application.
If you are undocumented and approached by Law Enforcement, the Department of Homeland Security, ICE or other Immigration Officials – you do have certain rights. If encountered at home, you do not have to open the door unless the officials have a search warrant. You have the right to remain silent, and the right to speak to a lawyer if you are detained or taken into custody. If you are approached in a Public area by immigration officers, you have the right to remain silent, you may refuse a search, and you have the right to speak to a lawyer if detained or taken into custody. You can refuse to sign any and all paperwork presented to you until you have spoken to a lawyer. Print out the attached Know Your Rights pages and keep them for your reference. Cut out the Know Your Rights Card and carry it with you. You may give it to immigration officers if you do not wish to speak to them.
On April 11, 2017, Attorney General Jeff Sessions issued a memorandum to all federal prosecutors titled “Renewed Commitment to Criminal Immigration Enforcement,” in which he directs federal prosecutors to enforce the criminal laws against unlawful entry into the United States. In the past, offenses such as unlawful entry, unlawful re-entry, document fraud or identity theft had noncriminal resolutions such as deportation or voluntary departure. The policies recently outlined by Sessions now encourage criminal prosecution of non-violent immigration violations as follows:
- Offenses related to unlawful transportation of harboring of undocumented aliens, with priority on those smuggling three or more individuals.
- Any case where the defendant has two or more prior misdemeanor improper entry convictions, or one or more improper entry convictions with aggravating circumstances, such as criminal history, gang membership or affiliation or multiple prior voluntary returns, prior removal or deportation orders, will be referred for criminal prosecution.
The latest Trump Executive Order on Border Security makes some significant changes on Expedited Removal and who will be subject to this Administrative Procedure. Expedited Removal is a procedure that allows Department of Homeland Security to summarily remove or deport an undocumented individual without a hearing before an Immigration Judge. This type of procedure can be applied to any person who is apprehended at a port of entry with no valid documents, or false documents; and also to any person who is apprehended somewhere other than a port of entry, who is inadmissible because of misrepresentations or has not been lawfully admitted, and cannot show he or she has been continuously present in the United States for two or more years. Under the Obama administration, the use of expedited removal was limited and only applied for individuals who arrive at a port of entry, or individuals apprehended within 14 days of their arrival and within 100 miles of an international border.
Trump’s latest Executive Order on Border Security expands those individuals who can be subject to expedited removal to any individual who entered the U.S. without legal documents, who cannot show continuous presence in the United States for two or more years. This Expansion has not taken effect yet, and Secretary of Homeland Security John Kelly stated he was going to publish a notice in the Federal Register to designate who would be subject to the Expedited Removal provision. If use of Expedited Removal is expanded to the fullest extent of the law- then it could be applied to anyone without proper documentation to enter, no matter where they were apprehended, and cannot show two years or more of continuous presence in the United States prior to the date of the Expedited Removal.
The number of people who will be effected by this expanded use of Expedited Removal will depend on how Secretary Kelly plans to implement the expansion. This raises a number of questions – how will individuals be able to prove their continuous presence for two years prior to apprehension? Do these individuals need to carry documentation with them? Can the determination of less than two years of continuous presence be challenged? Certainly persons taken into custody for Expedited Removal or should contact an experienced immigration lawyer as soon as possible. Expedited Removal Orders may be subject to Administrative review.
On January 25th, President Trump signed and executive order “Enhancing Pubic Safety in the Interior of the United States.” Early this week, Department of Homeland Security Director John Kelly issued a memo further defining removal priorities of the undocumented. Although the new policy memo expands the deportation priorities to almost all undocumented immigrants, the DACA program (Deferred Action for Childhood Arrivals) remains in tact for now. Kelly states “the Department shall faithfully execute the Immigration Laws of the United States against all removable aliens.” Regarding prosecutorial discretion, DHS is directed to initiate removal proceedings against “any alien subject to removal under any provision of the INA.” Clearly every undocumented person is at risk for deportation (with the exception of those who have DACA approval)
With limited resources, it is unlikely that the current number of CPB, ICE, and USCIS officers and officials will allow for mass scale deportation. The priorities are meant to define individuals that the Department should seek out for deportation. Individuals who have been convicted of any criminal offense, charged with any criminal offense that has not been resolved, or have committed acts that constitute a criminal offense are priorities for removal. Criminal offenses are not defined and can presumably be anything from driving without a license to aggravated felonies. Other priorities for deportation are those who engaged in fraud or willful misrepresentation in connected with any official matter before a government agency, anyone who has abused any program related to receipt of public benefits, subject to a final order of removal but failed to leave, or those who pose a risk to public safety or national security. Within these categories, DHS is directed to fast-track removal of Criminal Aliens, bypassing the Immigration Court for any noncitizen convicted of an aggravated felony. To quote Trump “Were getting really bad dudes out of this country and at a rate that nobody’s ever seen before. . . And they’re the bad ones. And its a military operation.”
Enforcing the Immigration Laws of the country also includes the due process afforded to legal permanent residents and undocumented persons that meet certain criteria. In many most cases, undocumented persons are allowed a hearing before an immigration judge. There are certain defenses and waivers are available for some (not all) grounds of . Make sure you talk to an immigration lawyer experienced in removal hearings if you come to the attention of any ICE, CBP, or USCIS official and are eligible for deportation.
The New York Times, CNN, Chicago Tribune and other news outlets are reporting an apparent “ramping up” of ICE enforcement actions. Federal officials confirmed more than 600 people across 11 states were detained in the past week. ICE announced that more than 200 people had been arrested in the midwest states that are overseen by the Chicago office. ICE Tweets daily to announce when criminal aliens are removed, such as a Dominican national wanted for murder, and a convicted felon deported to Mexico. Some of the Tweets by ICE over the past 3 days emphasize the Services broad powers: “ICE immigration enforcement actions target specific individuals according to the laws passed by Congress” and “ICE targets convicted criminals and others who are illegally present in the United States” and “ICE enforces our nations immigration laws in a professional manner.” ICE claims this week’s aggressive enforcement is “business as usual” and denies conduction sweeps and indiscriminate roundups. But the immigrant community remains fearful. ICE officials denied that they were carrying out Trump’s enforcement priorities at this time, insisting these operations are executed two or three times a year. Yesterday, Trump tweeted “The crackdown on illegal criminals is merely the keeping of my campaign promise. Gang members, drug dealers & others are being removed!” But this did little to calm the fear in immigrant communities. Immigration advocates are concerned that those arrested in the Midwest sweep will face criminal prosecutions by the U.S. Attorneys office for illegal entry and illegal re-entry after deportation, as they become enforcement priorities under the January 25, 2017 Executive Order “Enhancing Public Safety in the Interior of the United States. Any undocumented person who is questioned by ICE should consult an attorney, if possible, before signing anything.
A headline story in this week’s Sunday Chicago Tribune announced that up to 8 million people could be deported as a result of Trump’s Executive Order “Enhancing Public Safety in the Interior of the United States.” Although the Trump administration insists that their intent is to find and deport “bad people”, the Executive Order allows immigration agents and local and state police to detain nearly anyone they come in contact with who has crossed the border illegally. The consequences could be dire, for immigrants and their families, and for the United States. While the enforcement priorities under Obama targeted 1.4 million people for deportation, under the new enforcement policies, nearly everyone who is in the country without proper documentation is at risk. The Tribune (citing a Pew Research Center study) said as many as 5.5 million people in the country crossed the border without proper documentation. The remaining 6 million estimated undocumented people came to the U.S. on some type of legal visa, and overstayed the time they were permitted in he United States.
The new Enforcement Policy includes anyone convicted of a crime, and also anyone charged with a crime, or anyone who committed a crime but was not arrested or charged. This would include anyone who entered without a visa because illegal entry is a crime under 8 U.S.C. Sect 1325. The order directs Department of Homeland Security to hire an additional 10,000 ICE officers for its deportation force, more than doubling ICE staffing. Of course this expansion would require Congressional appropriations.
In additional to undocumented persons who were convicted of, arrested for, or committed but not arrested for crimes, the order targets those who have engaged in fraud or willful misrepresentation in connection with any official matter or application before a government agency, anyone having abused any program related to receipt of public benefits, any anyone who is subject to a final order of removal and failed to leave. Note there is no ranking of these deportation priorities, making them equal in importance.
Senators Dick Durban (Dem.- Illinois) and Lindsey Graham (Rep.- South Carolina) have introduced legislation titled “The Bridge Act” to allow people who have received work authorization through Deferred Action for Childhood Arrivals (DACA) an extension of their status for a three-year period. DACA is a program initiated by President Obama in 2012 creating work authorization for certain undocumented persons who came to the United States as children. DACA was created by Executive Action and President -Elect Trump has promised to repeal all of President Obama’s Executive Action programs on the day he takes office, eliminating DACA and leaving DACA recipients in a vicarious position. DACA provided more than 730,000 undocumented aliens with temporary work authorization and deferred action from deportation and was renewable every two years. The Bridge Act would make it possible for DACA recipients and others that qualify under DACA eligibility “provisional protected presence” and work authorization for three years. The Bridge Act also imposes restrictions on the sharing of information from DACA applicants with USCIS Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CPB). The bill has bi-partisan support in the senate, however we don’t know yet whether it will pass both houses and become law.
The Bridge Act will have the same criteria as the DACA program. Like the DACA program, The Bridge Act does not grant legal status or a path to a green card. It merely provisionally protects qualified applicants from deportation and allows them temporary work status. Since the new administration’s immigration policies are uncertain, be sure to consult a qualified immigration lawyer before you file a DACA application.
As discussed in our last blog post about provisional waivers, a requirement for obtaining the waiver for unlawful presence is a finding of “Extreme Hardship” to a US Citizen or LPR spouse or parent. This person is known as the Qualifying Relative and must be a US citizen or LPR spouse or parent – not a US citizen or LPR child or children. Recently, USCIS published new policy guidelines that define the term Extreme Hardship and guide USCIS adjudicators on the types of evidence that qualifies as Extreme Hardship. In general, two types of Extreme Hardship are addressed: 1) Separation- when the qualifying relative remains in the United States and is separated from the applicant who is residing abroad, and 2) Relocation- when the qualifying relative suffers by having to relocate abroad to join the applicant.
Extreme hardship must be more that the common consequences of family separation and relocation. Common consequences of being removed from the United States or denied admission to this country are difficulties to the Qualifying Relative in adjusting to a new country, quality and availability of education opportunities abroad, inferior quality of medical care and services and the ability to pursue a chosen career abroad. To establish extreme hardship, it is not necessary to prove that a single hardship alone rises to the level of extreme, but rather all of the relevant hardship factors are considered in the aggregate. Further, extreme hardship determinations made are based on the “totality of circumstances,” which may be the hardship factors themselves, arguments made in the application and the types of evidence submitted. The USCIS will consider as evidence of relocation hardship published documents such as Department of State travel advisories to particular countries, Department of State published Country Conditions and Human Rights Reports.
One of the most important documents in an application for a Provisional Waiver is the statement of the Qualifying Relative. This credibility of this statement is paramount in getting a provisional waiver application approved. Putting together a good application for a provisional waiver requires well-organized documents and evidence to support the QR’s statement. You should seek the counsel of a qualified attorney experienced in waivers of inadmissibility, who can guide you in determining the best arguments for your particular circumstances and based on the evidence you are able to provide for a successful waiver application.
In this posting, lets briefly take a look at Provisional Waivers. Waivers for Unlawful Presence in the U.S. have been historically used by persons filing outside of the United States and undergoing Consular Processing to receive an immigrant visa to enter the United States. Under this scenario, the applicant must remain outside of the United States while his/her I-601 waiver is being adjudicated. In the past, families often had no choice but to be separated for periods of time of one year or more. The Provisional Waiver was initiated in 2013 by the administrative rules process and is now a codified Federal Rule. With an approved Provisional Waiver for Unlawful Presence, the applicant will eventually leave the United States to consular process, but will be permitted to file the I-601 Application for waiver from the United States and can remain in the U.S. while the application is pending. If everything else is satisfactory and there are other inadmissibility issues, the applicant will likely be out of the country for a just few days to complete visa processing at the consulate, and re-enter the United States with permanent residence status.
Provisional Waivers can waive unlawful presence 3 and 10 year bars if a person meets the following criteria:
- You are physically present in the United States