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bridge-1526248-640x480-300x225Senators 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.

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statue_of_libertyAs 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.

 

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we_are_all_immigrantsIn 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
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handcuffs-308899_640Documented and Undocumented immigrants are understandably worried about what will happen in January when President-Elect Trump takes the Oath of Office.  Although his campaign began with a pledge to build a wall and immediately deport 11 million undocumented immigrants and their families, Trump seems to continue to walk back that promise.  In recent interviews Trump limited his threat of immediate deportation to those immigrants with criminal history.  As I discussed in a previous blog posts, that sounds sounds very much like Obama’s Enforcement Priorities for the Apprehension and Removal of Undocumented Immigrants.  It remains to be seen whether Trump can expedite removals without due process and a hearing before an immigration judge, protections that found in the current law.  Although most convictions for crimes trigger removability or inadmissibility, defenses are available to remain in the United States, and in some cases receive or maintain legal permanent residence status.    Some of these defenses come in the form of waivers.  There are many different types of waivers in the immigration law, but generally a 212(h) waiver can waive some criminal grounds of inadmissibility.   At 212h waiver can waive an admission for conviction for crimes of moral turpitude, engaging in prostitution, and conviction of two or more offenses of any kind with an aggregate sentence imposed of a least five years.  It cannot waive drug offenses for anything other than possession of under 30 grams of marijuana.  Also – it may not available to certain Legal Permanent Residents who have not held Legal Permanent Residence Status for 7 years prior to being put into removal proceedings.  In most 212h cases, the waivers require a finding of extreme hardship to a lawful permanent resident or United States Citizen spouse, child or parent. The law is very complicated in the area and one would be wise to seek counsel from an experienced attorney if you are placed in removal proceedings for a criminal conviction.  More about waivers – including provisional waivers for unlawful presence bars next week.

 

 

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USCISLogoEnglishOn December 23, 2017, USCIS fees for most applications will increase by an average 21%.  Any applications filed on or after December 23, 2016 will require the new fee.  Be advised that there are significant increases for some applications.  There is a new 3-level fee structure for Naturalization applications.  The N-400 application fee will increase from $680 (including the biometrics fee) to $725 (including the biometrics fee).  A reduced fee of $405 (with biometrics fee) will apply to applicants with household income greater than 150% but not more than 200% of federal poverty guidelines.  No fee will be charged to certain applicants with military service or those with approved fee waivers.  The fee for an Application for Certificate of Citizenship (N-600) for those applicants who derived citizenship through biological parents will increase by over $570- from $600 to $1,170 (without the biometrics fee.)   Temporary Employment Authorization fees will increase from $360 to $575 (plus $85 biometrics fee).  K-1 Fiance petitions will increase from $340 to $535 and I-130 immigrant petitions will increase from $420 to $535.  The new fees are located on the USCIS.gov website.

If you have been putting off filing your application – the new President taking the oath of office on January 20, 2017, and the upcoming fee increases should give you incentive to file immediately for any immigration benefit you might qualify for.  You should consult with an experienced immigration attorney to see if you qualify for legal status by means of immigrant visas through family members – even if you entered this country without documentation or overstayed a visa.  These things can sometimes be cured by a waiver for qualified applicants.

 

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The results of yesterday’s presidential election are weighing heavily on many immigrants in this country.  From the  start of the primary season, Donald Donald_Trump_August_19,_2015_(cropped)Trump made the removal of undocumented immigrants the cornerstone of his campaign.  Fear and uncertainty resonate throughout immigrant communities.  But Trump’s policy has gone through so many evolutions, it is hard to say what his policy will be by the time he takes office in January 2017.   Early on in his campaign, Trump was promising  to immediately deport 11 million undocumented people and their spouses and children.  Trump argued that children born in the United States to undocumented parents should be denied automatic citizenship and deported with their parents; a plan that  disregards the Citizenship Clause of the Fourteenth Amendment, conferring citizenship on all persons born within the United States.  Trump said that after removing all of the undocumented immigrants, he will immediately “bring the good ones back,” showing an astounding lack of understanding of current Immigration Law and bars to re-entry.   Trump has since backed away from those positions, stating his deportation priority will be undocumented aliens who have committed crimes; which, coincidently, has been Obama’s Policy for the removal of aliens in this country.  Under the Obama administration, the first priority for apprehension and removal includes public safety or terrorism risks, aliens convicted of criminal gang activity and aliens convicted of felonies and aggravated felonies.  The second enforcement priorities are those with misdemeanor convictions and new immigration violators, and the lowest enforcement priority are those aliens with other immigration violations.  So it would seem that Trump’s most recent policy announcement of prioritizing removal of the criminal undocumented maintains the status quo of the Obama administration.

It is not known how Trump will handle the recipients of work authorization permits under the Deferred Action for Childhood Arrivals (DACA) program, which was created by Obama’s executive order.  Trump has promised to immediately withdraw the executive order that creates the DACA work authorizations.  How he will treat those who currently have DACA status is another question.  One would hope that if Trump’s true priority is to remove criminal aliens from this country, he will leave those work authorizations in place for those who were brought to the U.S. as children, educated here and now are productive and working residents of our communities.

Keep following this blog as I will continue to update Trump’s immigration policy as it evolves.  I will also begin discussing some of the legal means to obtain status under the current immigration law for qualified individuals.

 

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In May of this year, USCIS proposed fee increases for a multitude of immigration services. The fee increases did not go into effect immediately as the public has to be allowed 60 days to comment on the proposed changes. Those 60 days have come and gone and it appears the fee increases are here to stay. While still not in effect, the fee increases will likely go into effect over the next couple of months. The Department of Homeland Security is required to review its fee structure every so often under federal law. According to the Department, the last time fees were increases was in 2010. USCIS is a fee based agency and says that if fees are not raised, the agency will face a $560 million budget shortfall next fiscal year. A list of the most popular immigration services along with their current fee and proposed fee is listed below:

Fee Increase

Some good news is that the $85 biometric fee for fingerprints will remain the same. Additionally, if you file before the fee increase goes into effect, you can file under the lower fee rate. As of this writing, there is no official date that these fees are expected to go into effect. For a the full list of fee changes, click here: Full List Fee Increase

If you have any questions about immigration fees or have an immigration issue you’d like to discuss, you should be sure to contact an experienced immigration attorney.

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USCISLogoEnglishThe Department of Homeland Security rule to expand provisional waivers goes into effect on August 29, 2016. Currently, DHS only allows immediate relatives of a United States citizen to apply for the I-601A waiver of the 3 or 10-year bars for remittance to the United States. DHS limited the waiver to this subset of individuals to prioritize family members impacted by the bars. In an effort to expand the provisional waiver to all statutorily eligible individuals, the Department has now introduced a rule to make the expansion a reality.

Under the rule, all statutorily eligible immigrants can apply for an I-601A waiver if they are eligible for an immigrant visa and for a waiver of inadmissibility based on unlawful presence. This includes family based immigrants, employment immigrants, and a limited number of Diversity Visa program selectees. The new rule allows any immigrant that is eligible to apply for an I-601 waiver after they leave the country to now apply for the I-601A waiver prior to departing the United States for their immigrant visa interview. Additionally, the rule also would expand who may be considered a qualifying relative for purposes of the extreme hardship determination to include lawful permanent resident spouses and parents.

DHS Secretary Johnson said the expansion of the program is inline with the Department’s efforts to promote “family unity” and that the new rule seeks to encourage “eligible aliens to complete the visa process abroad, promot[e] family unity, and improv[e] administrative efficiency.” The new applications will be available on August 29 at USCIS’s website.

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Backlog Chart

Data from TRAC Immigration

The Immigration Court system in the United States is notorious for its backlog of cases. This story gets attention every not and again from the national press. A little under a year ago, in order to help the chronic backlog facing the Immigration Courts, Congress provided funding for 55 new immigration judges. To put this is perspective, an immigrant rights group estimates that over 200 new immigration judges would be necessary to even make a dent in the chronic backlog of cases before the court. Fortunately, it appears there are plans to boost the number of immigration judges even more, but still short of the number necessary to reduce the persistent backlog of cases.

But despite these new judges, the backlog persists. According to the Hill, over 500,000 cases currently sit waiting to be heard by an immigration judge across the United States, the largest backlog in our nation’s history. In Illinois alone, there are over 20,000 cases waiting to be heard by an immigration judge. The average number of days cases have been pending in the United States is 672 days. Human Rights First also notes that the average number of days between when an immigrant files a case before the court and that case is actually heard is over 1,000 and just under 3 years. While these cases sit, the lives of the immigrants impacted by the case remain in immigration limbo.

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According to a recent article from the Chicago Reporter, several groups are calling on Mayor Rahm Emanuel to enact Chicago_Police_Logoreforms in the way Chicago Police are allowed to interact with the undocumented population in Chicago. Right now it is estimated that nearly 7% of the Chicago population is undocumented. That equates to over 180,000 individuals that these reforms would protect.

Under current city ordinances and executive orders, it is against city policy for city employees to deny benefits based on the immigration status of an individual. Additionally, city employees are prohibited from inquiring about the immigration status of an individual. Mayor Emanuel also limited how Chicago Police can cooperate with federal immigration officials in order to deport individuals detained by Chicago Police. But Reform groups say those protections aren’t enough and would like to strengthen those prohibitions. According to the Chicago Reporter, under a proposal suggested by a collection of immigration reform groups, several more projections would be enacted, such as:

  • “Eliminate exemptions that allow police to work with federal authorities when dealing with undocumented immigrants who are either wanted on a criminal warrant, convicted felons, charged with a felony, or identified gang members,