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.