STEM Act Approved by the House of Representatives

On Friday November 30, the House of Representatives approved the STEM Jobs Act, which would create 55,000 green cards annually for foreign students who receive graduate science, technology, engineering or math degrees in U.S. universities. This measure would aid the economy by keeping talented workers in the United States, and it would enable spouses and children of these graduates to obtain their green cards after one year. However, although most people support the concept, Congress remains divided on the issue because, in order to create these special visas for skilled workers, House members voted to eliminate the Diversity Visa Lottery Program and set up the STEM Act in its place.


The Diversity Visa Lottery Program set green cards aside for countries with low immigration to the United States, created in 1990 in response to immigration policies that were biased toward people with family already in the U.S. or toward those who filled specific immigration needs. Critics of the program claim that it is vulnerable to fraud because of the difficulty of conducting background checks in some countries. Supporters, however, claim that without it, the country would be dominated by immigrants from only a handful of countries, primarily India, China, Mexico, and the U.K. They argue that lawmakers should not have to choose between the two programs, pointing out that both are valuable.

The White House, in a statement opposing the bill, stated that while it was “ready to begin serious debate on the need to fix our broken immigration system,” the administration refused to support “narrowly-tailored proposals” that did not lead to comprehensive immigration reform.

The bill moves to the Senate for voting next.

http://www.huffingtonpost.com/2012/11/30/stem-act-passage-immigration_n_2219248.html?utm_hp_ref=politics

Republicans Introduce the ACHIEVE Act

On November 27, Senators Kay Bailey Hutchison and Jon Kyl introduced the Assisting Children and Helping them Improve their Educational Value for Employment Act (ACHIEVE Act) as an alternative to the DREAM Act. The proposal would establish a special visa system for immigrants who entered the United States as children without proper immigration procedures, granting those who wished to pursue a college or technical degree or serve in the U.S. military a W-1 Visa. DREAMers, however, do not support the bill as a viable solution for undocumented immigrants, preferring the DREAM Act instead.


There are several major differences between the DREAM Act and the ACHIEVE Act. The DREAM Act required beneficiaries to have been under 16-years-old when they entered the United States and currently under the age of 30. The ACHIEVE Act, on the other hand, requires applicants to have been younger than 14-years-old when they were brought to the U.S., and currently under 28 (or under 32, if they have obtained a bachelor’s degree). Both proposals require good moral characters, a high school diploma or GED, five years of continuous presence in the United States, and background checks, but the ACHIEVE Act would also require beneficiaries to check in with the Department of Homeland Security every six months. In addition, ACHIEVE Act applicants would have to demonstrate knowledge of the English language, U.S. history, and the principles of the U.S. government. The additional limitations make the proposition unappealing.

Essentially, opponents reject the ACHIEVE Act because it fails to provide a special pathway to citizenship, as the DREAM Act would have done. Instead, under the ACHIEVE Act beneficiaries are given three special visas for legal status, eventually allowing them to be on the regular path toward potential citizenship and permanent residency.



http://www.politico.com/news/stories/1112/84274.html

http://www.kyl.senate.gov/record.cfm?id=337961

http://www.usatoday.com/story/opinion/2012/11/30/immigration-achieve-dream-reform-kyl-hutchison/1735243/

Deferred Action/DACA Update!

According to statistics released by the U.S. Citizenship and Immigration Services (USCIS) on October 12, 4,591 deferred action requests have already been granted, a sharp increase from September’s 29 approvals. Since August 15, when the program launched, 179,794 applications have been accepted for processing and 158,408 biometric services appointments, where government officials take applicants’ fingerprints to conduct criminal background checks, have been scheduled. Currently, 6,416 applications are under review, and no request has yet been officially denied.


Janet Napolitano, Secretary of Homeland Security, announced on June 15, 2012 that certain people who entered the United States as children and met several qualifications would be able to request a consideration of deferred action (DACA) for a period of two years, halting deportation and allowing them to be eligible for work authorization. This announcement followed the decision by President Obama to give temporary status to certain individuals below the age of 31, who had entered the United States as children. The Migration Policy Institute estimates that nearly 1.7 million immigrants could be potentially eligible for a DACA grant.

Although many applications have been granted in the program’s first two months, USCIS predicts that the average length of time necessary to process an application will be between four and six months. Because the deferred action program is still fairly new, regular updates will be provided by USCIS on a monthly basis.

First Deferred Action Application Approvals Granted

Since President Obama’s Deferred Action for Childhood Arrivals program took off on August 15, 2012, over 72,000 people have applied. Although officials predicted that it could take several months for USCIS to process any applications received, as of September 10, 2012 – three weeks since applications became available – he first deferrals have already been issued, and work permits should be issued in the coming weeks.


Despite the fact that the program has taken off, there have not been as many applications as officials first predicted. Advocates and lawyers claim that this is because significant time is needed to acquire documents that prove these young people’s continuous presence in the United States for the past five years. Other documents, such as passports, birth records, utility bills, and school records, are also needed to prove that the applicant entered the United States before he/she was sixteen-years-old, was 30 or under on June 15, 2012, was still in the U.S. on June 15, 2012, has no significant criminal record, and is currently enrolled in school or possesses a high school diploma or GED certificate. Other people are taking the time to consult their families, informing their parents and siblings of the benefits and risks of the program. “These applications are not something you would be ready to go with in one day. They take a fair amount of work. And we have to be sure people understand the risks they are taking,” Laura Lichter, president of the American Immigration Lawyers Association stated.

So far, the largest number of applications received has come from California, followed by Texas, New York, Florida, and New Jersey. As more eligible people hear about the program and the success of approved applicants, consult their lawyers, and prepare documentation, USCIS expects more applications will be submitted.


http://www.politico.com/news/stories/0912/81084.html?hp=r5

http://www.cbsnews.com/8301-250_162-57511038/first-immigrants-okd-for-deportation-deferral-program/

http://www.nytimes.com/2012/09/12/us/program-offering-immigrants-reprieve-is-off-to-quick-start.html?_r=1

Deferred Action FAQ's

DEFERRED ACTION-FREQUENTLY ASKED QUESTIONS

Q. Is it for real?

A. Yes. The President used his executive authority to approve the change in policy. It does not require approval from Congress.

Q. What does the program do?

A. Will Deferred Action make me legal in the United States?

No. Deferred Action does not confer lawful status upon you, although if your application is approved you will not be accruing unlawful presence in the United States during the period deferred action is in effect. This means that you cannot change your status from “Deferred Action to another nonimmigrant status. It also means that you may still be subject to the ten-year-bar if you leave the U.S.

The fact that you are not accruing unlawful presence does not change whether you are in lawful status while you remain in the United States. Because you lack lawful status at the time DHS defers action in your case you remain subject to all legal restrictions and prohibitions on individuals in unlawful status.
Q. Does deferred action provide me with a path to permanent residence status or citizenship?

A. No. Deferred action is a form of prosecutorial discretion that does not confer lawful permanent resident status or a path to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.


Q. When does it become effective?

A. The announced date is August 15, 2012. However, it may take some time to gather the required information and complete the forms, so we suggest you start soon.


Q Who is included?

A. Individuals who: (1) Were under the age of 31 as of June 15, 2012; (2) Came to the United States before reaching your 16th birthday; (3) Have continuously resided in the United States since June 15, 2007, up to the present time; (4) Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS; (5) Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012; (6) Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and (7) Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
Q. Does “currently in school” refer to the date on which the request for consideration of deferred action is filed?

A. To be considered “currently in school” under the guidelines, you must be enrolled in school on the date you submit a request for consideration of deferred action under this process. USCIS will allow you to apply for the profram in the future if you complete your GED. We anticipate they will provide a list of approved GED programs.
Q. If we come forward, how can we be sure that the government will not use the information to deport us or our family later?

A. When the government started similar programs in the past (such as TPS, LULAC, SAW and Amnesty) the records of those who came forward have never been used to deport people, even when their applications were denied. Regarding the current Deferred Action program, USCIS says: “Information provided in this request is protected from disclosure to U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to U.S. Immigration and Customs Enforcement under the criteria set forth in USCIS’s Notice to Appear guidance.” This means that the information you provide cannot be forwarded to ICE to start deportation proceedings unless you file a fraudulent claim, there are for national security concerns or for the investigation or prosecution of a serious criminal offense. If you file an honest application and you have no serious criminal record, you should not be concerned that your application will eventually result in your deportation.

However, USCIS also reports that, “This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.”
Q. What does that last part mean?

A. It means that the government is warning that they have no control over what a future president might do.
Q. What offenses constitute a significant misdemeanor?

A. For the purposes of this process, a significant misdemeanor is a misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria:

1. Regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or,

2. If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.

However, “the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion. DHS retains the discretion to determine that an individual does not warrant deferred action on the basis of a single criminal offense for which the individual was sentenced to time in custody of 90 days or less.”

It means that USCIS is reserving the right to deny Deferred Action to people who have significant arrest and conviction records even if they do not necessarily lead to convictions for “significant misdemeanors.” This might include multiple driving while impaired convictions or a history of gang violence.
Q. Will Driving While Impaired be considered a significant misdemeanor?

A. Probably not since it is not a misdemeanor under New York State law, however, even this is not certain since USCIS says it will use a federal standard. We will have to wait and see. But multiple convictions could be used as the basis to deny Deferred Action.

Q. Will DHS consider my expunged or juvenile conviction as an offense making me unable to receive an exercise of prosecutorial discretion?

A. “Expunged convictions and juvenile convictions will not automatically disqualify you,” according to USCIS. This means that it might disqualify you according to the facts in a particular case.

Q. Is there a minimum age to apply?

A. Yes. If you have never been in removal proceedings, or your proceedings have been terminated before your request for consideration of deferred action for childhood arrivals, you must be at least 15 years of age or older at the time of filing and meet the other guidelines.

If you are in removal proceedings, have a final removal order, or have a voluntary departure order, and are not in immigration detention, you can request consideration of deferred action for childhood arrivals even if you are under the age of 15 at the time of filing and meet the other guidelines.

In all instances, you cannot be the age of 31 or older as of June 15, 2012 to be considered for deferred action for childhood arrivals

Q. If I am granted Deferred Action, will I automatically be granted employment authorization?

No. Pursuant to existing regulations, if your case is deferred, you may obtain employment authorization from USCIS provided you can demonstrate an economic necessity for employment.

Q. How does a 15 year-old high school student prove economic necessity?

A. USCIS had not provided detailed guidance on this issue. Clearly if you need to work to support your family or further your education, economic necessity should be easy to show, in other cases it may be difficult or impossible

Q. What documentation may be sufficient to prove I qualify for Deferred Action?

A. Documentation sufficient for you to show that you came to the United States before the age of 16 and that you have lived here for at least five years may include, but is not limited to: financial records, medical records, school records, employment records, and military records. Additional information about what documentation you can submit will be provided on the USCIS website on August 15, 2012.

Q. What documentation may be sufficient to demonstrate that I am currently in school, have graduated from high school, or have obtained a general education development certificate (GED)?

A. Documentation sufficient for you to demonstrate that you are currently in school, have graduated from high school, or have obtained a GED certificate may include, but is not limited to: diplomas, GED certificates, report cards, and school transcripts. Additional information about what documentation you can submit will be provided on the USCIS website on August 15, 2012.

Q. May I file affidavits as proof that I meet the guidelines for consideration of deferred action for childhood arrivals?

A. Affidavits generally will not be sufficient on their own to demonstrate that you meet the guidelines for Deferred Action. However, USCIS will accept affidavits to fill in gaps in your documentation to show that you have lived in the U.S for at least five years or that you were absent from the U.S. for a brief period after your initial entry.

Q. Do I need to show that I have been in the United States continuously since I entered? Do brief departures from the United States interrupt the continuous residence requirement?

A. A brief, casual, and innocent absence from the United States will not interrupt your continuous residence. If you were absent from the United States for any period of time, your absence will be considered brief, casual, and innocent, if it was before August 15, 2012, and:

1. The absence was short and reasonably calculated to accomplish the purpose for the absence;

2. The absence was not because of an order of exclusion, deportation, or removal;

3. The absence was not because of an order of voluntary departure, or an administrative grant of voluntary departure before you were placed in exclusion, deportation, or removal proceedings; and

4. The purpose of the absence and/or your actions while outside the United States were not contrary to law.

Q. What if a qualified person already has a deportation order?

A. The government will halt the deportation of qualified persons and reopen the cases of those previously ordered removed (but still in the U.S.). Individuals who believe they can demonstrate that they qualify for Deferred Action and are about to be removed should contact us immediately at (631) 588-4040 or by email at mczwaik@zwaik.com.

Q. Does it matter if I used fake papers to get a job?

A. It should not matter if you have used fake papers, papers that didn’t belong to you, or a made up number to get a job, as long as you have not been charged with or convicted of fraud. Do not submit any documents with false information on your application.

Q. If I am granted Deferred Action, will I be able to travel outside of the United States?

A. Not automatically. If USCIS has decided to defer action in your case and you want to travel outside the United States, you must apply for advance parole by filing a form I-131 and paying the applicable fee ($360). Generally, USCIS will only grant advance parole if you are traveling for humanitarian purposes, educational purposes, or employment purposes. You may not apply for advance parole unless and until USCIS defers action in your case pursuant to the consideration of deferred action for childhood arrivals process. You cannot apply for advance parole at the same time as you submit your request for consideration of deferred action for childhood arrivals. All advance parole requests will be considered on a case-by-case basis.

Q. What if the visa or passport I used to enter the United States had another person’s name on it?

A. Unless you have been charged with or convicted of fraud, this should not matter.


Q. Will I be able to get a driver’s license?

A. Yes. If you are approved for Deferred Action, you will receive an Employment Authorization Document (EAD) and a Social Security number. You can call your state’s Department of Motor Vehicles or visit its website to see which documents they require.

Q. Will I be able to get a green card?

A. Deferred Action does not, in and of itself, lead to the granting of a green card. If an applicant is otherwise eligible for a green card, there may be a possibility of being granted advance parole status, which could allow a green card to be received via consular processing. But whether advance parole will be available is not yet known.

Q. Will I be able to join the U.S. military?

A. No.
Q. Will I be able to pay in-state tuition for college?

A. If you live in a state that offers in-state tuition rates for undocumented immigrants attending public colleges, you should still be able to get those tuition rates with Deferred Action. These states include New York, Maryland, Texas, New Mexico, California, Utah, Oklahoma, Kansas, Washington, Nebraska, Illinois, Rhode Island, and Connecticut. Colorado just passed a law allowing undocumented residents to pay 150% of in-state tuition.
For other states, it is less clear if immigrants with Deferred Action will get in-state tuition rates. It could also vary between schools. We will be looking into this in the coming weeks.
Q. Can I apply for Deferred Action if I am currently in legal nonimmigrant status in the U.S. or have Temporary Protected Status (TPS)?

A. No. You can only request consideration of Deferred Action if you have no immigration status and were not in any lawful status on June 15, 2012.

Q. How do I file an application for Deferred Action?

A. Beginning August 15, 2012, you will be required to submit your application to USCIS through a form, along with a form requesting an employment authorization document. The total fees will be $465. USCIS is still developing the forms which will be available on August 15, 2012. If you submit an application before that date it will be rejected.
Q. Is the process different if I am currently detained, or are currently in deportation proceedings or already have an order of deportation?

A. Individuals who qualify for Deferred Action including those in removal proceedings, with a final removal order, or with a voluntary departure order (and not in immigration detention), will affirmatively request consideration of deferred action from USCIS through this process. Individuals who are currently detained and believe they meet the guidelines should not request deferred action from USCIS but should identify themselves to their detention officer.


Q. Will USCIS conduct a background check when reviewing my request for consideration of deferred action for childhood arrivals?

A. Yes. You must undergo biographic and biometric background checks before USCIS will consider whether to grant Deferred Action.
Q. Can I obtain a fee waiver or fee exemption for this process?

A. There are no fee waivers available for employment authorization applications connected to the Deferred Action for childhood arrivals process. There are very limited fee Your request for an exemption must be submitted and decided before you submit a request for consideration of deferred action for childhood arrivals without a fee. In order to be considered for a fee exemption, you must provide documentary evidence to demonstrate that you meet any of the above conditions at the time that you make the request. For evidence USCIS will:

• Accept affidavits from community-based or religious organizations to establish a requestor’s homelessness or lack of parental or other familial financial support.

• Accept copies of tax returns, banks statement, pay stubs, or other reliable evidence of income level. Evidence can also include an affidavit from the applicant or a responsible third party attesting that the applicant does not file tax returns, has no bank accounts, and/or has no income to prove income level.

• Accept copies of medical records, insurance records, bank statements, or other reliable evidence of unreimbursed medical expenses of at least $25,000.

• Address factual questions through requests for evidence (RFEs).
Q. Can I appeal USCIS’s determination?

A. No, but USCIS promises that denials will receive a supervisory review within the agency.

Q. Can I extend the period of deferred action in my case?

Yes, under current USCIS policy. Obviously that policy is subject to change, depending upon the results of the upcoming presidential elections.
Q. If my period of deferred action is extended, will I need to re-apply for an extension of my employment authorization?

A. Yes. If USCIS decides to defer action for additional periods beyond the initial two years, you must also have requested an extension of your employment authorization.
Q. Can I qualify for Deferred Action if I had an application for asylum or cancellation of removal pending before either USCIS or the immigration courts on June 15, 2012?

A. Yes. If you had an application for asylum or cancellation of removal, or similar relief, pending before either USCIS or the immigration courts as of June 15, 2012, but had no lawful status, you may request consideration of deferred action for childhood arrivals.
Q. Can I request consideration of deferred action from USCIS if I am in immigration detention by ICE or about to be removed by ICE from the U.S.?

A. No. If you are currently in immigration detention or about to be removed, you may not request consideration of deferred action from USCIS. Instead, you should identify yourself to your detention officer or contact the ICE Office of the Public Advocate so that ICE may review your case.
Q. If I accepted an offer of administrative closure under Prosecutorial Discretion, can I be considered for deferred action under this process?

A. Yes. If you can demonstrate that you meet the guidelines, you will be able to request consideration of deferred action if you have accepted an offer of administrative closure or termination or, for that matter, even if you were considered for administrative closure and either denied their offer under the case-by-case review process. If you are in removal proceedings and have already been identified as meeting the guidelines and warranting discretion as part of ICE’s case-by-case review, ICE already has offered you deferred action for a period of two years, subject to renewal.
Q. What should I do right now?

A. We are now collecting information and opening files, so we can file for the program on August 14th. At this point, there are three things we suggest you do:
1. Gather the necessary documents to prove the date you entered into the United States and that you remained here between June 15, 2007 and June 15, 2012. These include:
• Financial records (lease agreements, mortgage agreements, bank statements, bills)

• Medical records (immunization records, a medical history report from your doctor)

• School records (report cards, progress reports, diplomas, transcripts, GED certificates). You will also need to submit proof of current school enrollment, a high school diploma, or a GED certificate to qualify.

• Employment records (pay stubs, employment contracts, direct deposit slips). Do not use employment records if they have fake information on them.

• Military records

• Any other document or record that will help your case from a church, union, or other organization.


2. Do a background check on your criminal history. Many states have systems for you to collect this information. In many cases, you can find it on your local county website or state government websites. Make sure you get them from all of the states where you believe you may have been arrested or convicted. You should not apply for Deferred Action without doing a background check, even if there is a small chance that you have any sort of criminal record.

3. Stay informed. We are providing regular updates at www.zwaik.com and on Facebook at www.facebook.com/zwaik5014.

Supreme Court Ruling on Arizona's Imigration Laws

The Supreme Court today struck down several portions of the Arizona immigration law, holding them unconstitutional. The Court held that Arizona’s controversial immigration law intruded on the federal government’s power’s to regulate immigration. And that Arizona cannot: 1) make it a misdemeanor for immigrations to fail to carry identification; 2) make it a crime for undocumented immigrants to apply for a job; 3) arrest someone based solely on the suspicion that a person is in the country illegally. In making this decision, the court held that the authority to enforce immigration laws rests with the federal government, and the states cannot enact their own immigration enforcement laws.


The ruling did however uphold the part of the law which required local police to investigate the legal status of anyone they stop or arrest if there is reason to suspect that the individual might be an illegal immigrant. However they did hold that this ruling does not prevent constitutional challenges to how this part of the law is being enforced.

There are several states including Alabama, Georgia, Indiana, South Carolina and Utah who have their own controversial immigration policies. These states must now bring their laws in line with the Supreme Court’s ruling.

President Barack Obama effectively passed the Dream Act today without Congressional approval

President Barack Obama effectively passed the Dream Act today without Congressional approval, announcing that the administration would halt the deportation of eligible individuals and issue them work cards for two years.


To be eligible, individuals must show the following:

1. Came to the United States under the age of sixteen;

2. Have continuously resided in the United States for a least five years preceding the date of this memorandum and are present in the United States on the date of this memorandum;

3. Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;

4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;

5. Are not above the age of thirty.

The announcement further indicated qualified applicants who are already in deportation proceedings will have their deportation halted and be eligible for the relief.

While this guidance takes effect immediately, USCIS and ICE expect to begin implementation of the application processes within sixty days.

http://www.dhs.gov/ynews/releases/20120612-napolitano-announces-deferred-action-process-for-young-people.shtm 

Summer 2012 Immigration News Update

The last few months have brought about some important changes in the processing of immigration applications. These changes could affect you directly! Call us immediately if you think these changes affect you or if you have any questions. Si a usted le gustaría recibir éste boletín de noticias en español por favor contactarse con nuestra oficina. También queremos darle la bienvenida a Brenda, la nueva abogada de nuestra firma que habla español. Issues For this Newsletter: 1. BIA Rules That Travel on Advance Parole does NOT raise Ten Year Bar! 2. New Government Policy To Administratively Close Some Deportation Cases 3. Government Willingness To Reopen Cases Where The Immigrant Has Already Been Ordered Deported 4. New Policy to Allow Immediate Relatives to File Waiver Application Before Going Home New Rules by the Obama Administration and an important decision by the Board of Immigration Appeals have combined to create new opportunities for certain undocumented immigrants in the United States. The changes are NOT an amnesty and do not apply to everyone! This newsletter will try to explain these policy changes and help you understand if these changes apply to you or people you know. BIA Rules That Travel on Advance Parole does NOT raise Ten Year Bar! An important decision issued by the Board of Immigration Appeals, the country’s highest immigration court, will make it possible for many thousands of immigrants to travel while their green card applications are pending and to apply for green cards in the U.S. even if they have previously traveled on advance parole/travel permission. This decision reverses prior USCIS policy that said that individuals who travel on advanced parole after having been illegally in the U.S. for more than a year will be subject to the 10 year bar on their return. If you currently have Temporary Protected Status (TPS), this ruling will allow you to leave the U.S. and return legally without facing the ten year bar. You may then be able to adjust status in the U.S. because you have re-entered legally!!! Some Frequently Asked Questions: Q. Who will benefit from this new decision? A. Anyone who has a pending application for adjustment of status or will be eligible for adjustment of status in the future. Q. If I have TPS how will this help me? A. Most people with TPS entered the U.S. illegally and thus cannot get their green cards without returning home. This new ruling will allow you to return home and re-enter legally. If your illegal entry is the only thing stopping you from getting your green card in the U.S., you will then be able to adjust status here. Q. What if I previously applied for adjustment of status and it was denied? Can the new ruling help? A. It will help if the reason for your denial is that you previously traveled outside the U.S. on advance parole. New Government Policy to Administratively Close Some Deportation Cases; Greater Flexibility in Re-opening Deportation Orders The government is in the process of reviewing all 300,000 cases now in deportation or removal proceedings to determine whether to continue with the case or halt the process and “administratively close” the case. The announced purpose of the program is to allow the government to concentrate on deporting those with serious criminal records and immigration violations. In addition, the government has shown greater flexibility in re-opening prior deportation orders. Along with the new policy that allows the government to administratively close pending deportation cases, is a greater willingness on the part of the government to reopen old deportation orders. In order to get the government to agree to reopen a case you must have a basis for relief if the motion is granted. This usually means you are married to a U.S. citizen, or have some other basis for getting a green card.

Some Frequently Asked Questions
Q. What does it mean to “administratively close” a case?
A. In practical terms, the government simply suspends the case, “putting back in the file cabinet” and ignoring it for the time being.
Q. Can I travel outside the U.S. or get work authorization if I am granted administrative closure?
A. You CANNOT travel outside the U.S. since you are still in deportation proceedings! If you already have a work card, you should be able to keep it however.
Q. Can the government bring the case back up again?
A. Yes. But you can also bring the case back is you choose.
Q. Should you accept administrative closure if it is offered?
A. The answer will depend on your particular case. Call us if you have questions.
Q. What criteria will the government use to determine who gets to have their case administratively closed?
 A. Several DHS policy statements have outlined the “positive” factors the government will use to determine if they offer administrative closure. These include: the length of time you have lived in the U.S., whether you committed fraud in coming to the U.S., your family ties in the U.S., your heath and the health of close family members, your ties to the community, payment of taxes, your age with particular consideration given to minors and the elderly, Whether you are the primary caregiver or primary means of support for U.S. residents or citizens. Obvious negative factors will include: serious criminal records, prior immigration fraud, and gang membership.
Q. If I have a deportation order, how do I know if the government will reopen my case?
A. There is NO certainty. However, generally two things must be present: (1) you must have a reasonable basis for getting a green card if the deportation order is re-opened (otherwise the judge will just order you deported all over again!) and (2) you must have some of the positive factors we set out above for administratively closing case.
Q. Will immigration pick me up and deport me if my attempt to re-open my case and that is denied?
A. Generally no, not unless you have a serious criminal record. You should check with an immigration lawyer before making the decision to file a Motion to Reopen!

New Policy to Allow Immediate Relatives to File Waiver Application before Going Home The U.S. immigration service provides that immigrants who entered the U.S. illegally must return home to finish processing of their green cards. Since 1996, individuals who have lived illegally in the U.S. for more than a year will be barred from returning to the U.S. for ten years once they leave. Certain individuals who are subject to the ten year bar may nevertheless apply for a waiver (or pardon) that will allow them to return to the US sooner if they can prove that the bar would cause extreme hardship to their spouse or parent who is a US Citizen or green card holder. Until now, the government required all those returning home for final processing to apply for the waiver before the U.S. consulate in their home country. This often required the applicant to stay there- away from their family- for 18 months or longer. It also meant that if the waiver was denied, there was no legal way to return to the U.S. The new rule will allow Immediate Relatives who need to return home to finish processing their applications for a green card to apply for the waiver in the US and remain in the US until the waiver is decided. If the waiver is approved, the applicant can return home, probably for several weeks to finish the processing.

Some Frequently Asked Questions
Q. Who can benefit from the new rule?
A. Only Immediate Relatives. These are people who are married to U.S. citizens or have a citizen child at least 21 years old, or have a citizen parent if you are currently less than 21 years old. All other applicants who need to return home will have to apply for the waiver at the consulate.
Q. Will the new rule require Congressional approval?
A. No. This is a change in policy not in the laws and so does not require Congressional approval.
Q. When will this go into effect?
A. The administration hopes to have it in effect by the end of this year.
Q. Will it be extended to others in addition to Immediate Relatives?
A. No. There are no plans to extend the rule change to include others.
Q. What should we do now?
A. Our suggestion is to apply immediately for the first stage of the process- the filing of an I-130 petition that will classify you as the Immidiate Relative of a US citizen. DHS is currently running up to 6 months behind in approving these petitions. By the time you receive the approval, you should be able to start on the waiver application.

BIA Rules That Travel on Advance Parole does NOT raise Ten Year Bar!

An important decision issued by the Board of Immigration Appeals, the country’s highest immigration court, will make it possible for many thousands of immigrants to apply for permanent residency in the U.S. even if they have previously traveled on advance parole. This decision reverses the policy of the immigration service that previously said that individuals who travel on advanced parole after having been illegally in the U.S. for more than a year will be subject to the 10 year bar on their return. Those who traveled and later applied for permanent residency in the U.S. have needed to apply for a waiver of their unlawful presence. But only certain people were eligible for the waiver. To be eligible, the applicant needed to have a spouse or parent who was a permanent resident or US citizen. Individuals with employment based applications often found it impossible to apply for residency if they have traveled home. That has now changed. In addition, those who have applications for permanent residency that are currently pending, can now apply for travel permission and travel home without facing the need to file a waiver before obtaining their green cards!

The January 6, 2012, DHS Announcement about Planned Changes to Processing for Unlawful Presence Waivers

Frequently Asked Questions
What was announced on January 6?
DHS announced on January 61 that it will be issuing new regulations for how unlawful
presence waivers will be processed for certain immediate relatives of U.S. citizens who
are filing immigrant visa applications abroad. Specifically, the new procedure will allow
these individuals to file for a provisional unlawful presence waiver in the U.S. If
approved, they will still have to depart the U.S. to undergo visa processing and an
interview at a U.S. consulate abroad. To receive a provisional waiver, they will still need
to show that a lengthy bar from the U.S. would cause their U.S. citizen spouse or parent
“extreme hardship.”
What is the current process and why is the change necessary?
Currently, many relatives of U.S. citizens and lawful permanent residents face
unnecessary and dangerous bureaucratic hurdles when they apply for lawful permanent
residence (“green card”). In order to be granted permanent residence, these applicants
are required to travel to a U.S. consulate in their home country to be interviewed and wait
for the visa to be processed. But departure from the U.S. triggers a 3- or 10-year bar to
re-entry for many applicants—specifically those who have been unlawfully present in the
U.S. for more than 180 days.
Individuals subject to this re-entry bar may apply for a waiver (using DHS Form I-601;
see 8 U.S.C. 1182(a)(9)(B)(v)) so that they do not have to face years of separation from
their family. To qualify, they must demonstrate that their U.S citizen or permanent
resident spouse or parent would experience “extreme hardship” if the waiver is not
granted. But under the current process, individuals can only apply for the waiver in the
home country, after having had an initial interview at the consulate. The decision on the
waiver often takes weeks, months or even years to be completed. Meanwhile, families
are separated, and the spouses and children of U.S. citizens and lawful permanent
residents are forced to endure potentially dangerous situations in the home country until
the waiver is granted and they can return to the U.S.
Immigration law provides that U.S. citizens and lawful permanent residents can apply for
“green cards” for their foreign-born spouses and children. But the lengthy delays and
risks in the current waiver procedure discourage many family members from completing
1 Notice will be published in the Federal Register on January 9.
AILA InfoNet Doc. No. 12010620. (Posted 1/6/12)
AILA FAQs Page 2 of 3
January 6, 2012 DHS Waiver Procedure Announcement
the process of legal immigration. Family members have been assaulted or killed while
waiting for waivers to be reviewed.
What will the new process be?
The new procedure will allow certain immediate relatives of U.S. citizens apply for
waivers of the unlawful presence bars while remaining in the U.S. If the individual is
found eligible, USCIS will grant a provisional waiver. He or she will still have to depart
the U.S. and visit a U.S. consulate abroad to apply for an immigrant visa. During the
immigrant visa interview, the consular officer will make the finding of inadmissibility
based on unlawful presence and apply the provisional waiver. If other grounds of
inadmissibility are found, the individual would need to submit another waiver
application, if eligible, while abroad. In many cases, the provisional waiver will reduce
the wait period abroad and the separation from the applicant’s family by several months
or years.
Individuals will still need to meet the extreme hardship standard established in existing
law to obtain a waiver. The January 6 notice states that USCIS does not intend to modify
the standard.
Who will be able to use the new process?
As announced in the January 6 notice, the new regulation will change the application
process only for immediate relatives whose U.S. citizen spouse or parent would suffer
extreme hardship if the bar is not waived.
Who is left out of the new process?
According to the January 6 notice, the new process will not apply to family members of
lawful permanent resident petitioners. It will also not include immediate relatives if their
qualifying relative for the hardship waiver is not a U.S. citizen spouse or parent. These
individuals will still need to apply under the existing procedure (departing the country
first and applying for the waiver while abroad). There is no valid reason not to apply the
same procedure to these individuals whose spouses and children face the same
bureaucratic delays, obstacles and dangers when required to wait abroad for their waiver
adjudications.
The new procedure will apply only to individuals who are subject to the 3- and 10-year
bars for unlawful presence. Individuals who are subject to other grounds of
inadmissibility are not affected under the new process and will still have to depart the
U.S. before applying for any waiver.
When will the new regulations and process be implemented?
The new provisional waiver procedure has not yet taken effect. The notice issued on
January 6 announces the government’s intent to issue a proposed regulation at a future
date. Next, DHS will issue a Notice of Proposed Rulemaking (NPRM) that will include a
proposed regulation governing the waiver process and will invite public comment. The
notice states that the new waiver process will not be implemented until a final rule is
issued and the change becomes effective.
AILA InfoNet Doc. No. 12010620. (Posted 1/6/12)
AILA FAQs Page 3 of 3
January 6, 2012 DHS Waiver Procedure Announcement
What should current and prospective waiver applicants do at this time?
The January 6 announcement has not changed anything in the current waiver procedure.
The notice discourages the filing of applications for provisional waivers and states that
such requests will be rejected. The new procedure will not take effect until a final
regulation is issued.
Once the new procedure takes effect, individuals with pending applications for unlawful
presence waivers will not qualify under the new procedure.
Individuals with a waiver application in process, or contemplating an application, may
wish to consult with an attorney before filing, paying a fee or leaving the country, in
order to explore the best alternative at this time.
What is the cost for applying for a waiver under the new procedure?
The January 6 announcement does not mention a change in the application fee for filing a
waiver application (Form I-601). The current fee is $585.
How will the new procedure improve government efficiency? Under the current
procedure, waiver applications are filed by individuals who have departed the U.S. and
are applying at U.S. consulates abroad. However, those waiver applications are not
adjudicated by the U.S. consulate. Instead, they are forwarded to USCIS. Wait times for
processing waivers can be months or years. Processing these applications in the U.S. will
save government resources at the consulates and reduce the costs of shifting cases back
and forth between government agencies.
AILA InfoNet Doc. No. 12010620. (Posted 1/6/12)

New Regulations Will Allow Immediate Relatives to Apply For Unlawful Presence Waiver in the US, Before Returning Home

USCIS announced that it was amending its regulations to permit Immediate Relatives who are not eligible for adjustment of status to apply for an unlawful presence waiver in the US before returning home for final visa processing at the US consulate. The new regulation, not yet in effect, will only apply to spouses of US citizens, children under 21 of US citizens, and parents of US citizen sons and daughters who are 21 or older.

The new regulation will eliminate the long separation period- often more than a year- that usually occurs when an immigrant who has lived illegally in the US for more than 6 months must return home for final visa processing. Immigrants who enter the US without inspection cannot generally adjust status to permanent residency without returning home, even if they are married to a US citizen.