Homosexual Partners to be Considered "Relatives"

Janet Napolitano, Secretary of Homeland Security, announced that Immigration and Customs Enforcement (ICE) would consider same-sex partners from a homosexual relationship to be "relatives" when the Department of Homeland Security is considering whether to grant some form of discretionary relief from removal or deportation.

What this means is that if an undocumented alien has a same sex partner who is a U.S. citizen or permanent resident, DHS would consider that partner to be a U.S. relative form the purpose of granting prosecutorial discretion.

Prosecutorial discretion refers to the authority that ICE attorneys have in deciding which cases to bring to Immigration Court, and which cases to ignore or close before seeking an order of removal.  In June of 2011, ICE issued a memorandum stating its policy to concentrate its resources on aliens with criminal records or who pose a threat to U.S. security.  In deciding whether to exercise prosecutorial discretion, ICE is to consider a number of factors.  One is whether a person has ties to relatives in the United States.

In a letter responding to Jerrold Nadler of the U.S. House of Representatives, Napolitano states that ICE will be instructed to consider long-term same-sex partners as U.S. "relatives" for the purpose of determining whether to grant prosecutorial discretion.

The new policy may open the door for undocumented aliens who are in a long-term homosexual relationship with a U.S. citizen or lawful permanent resident to other forms of discretionary relief as well.  For example, based on this policy, it may be possible to argue that same-sex partners should be considered as U.S. "relatives" when applying for deferred action.

Deferred action is essentially a promise by the U.S. Government that it will not seek the removal of an alien who is otherwise removable.  When the Government grants deferred action, it has the authority to issue employment authorization as well.  Whether to grant deferred action is a matter of discretion.  Recently, the President announced that he would grant deferred action to certain young people who were brought to the United States before the age of 16.  This is the deferred action for childhood arrivals (DACA) program.

But, the DACA program is not the only basis for granting deferred action.  The Government can decide that there are enough mitigating factors present to permit a person who does not have a valid immigration status to stay in the United States.  One factor that the Government takes into consideration is whether a person has any U.S. relatives, such as a spouse or children.

Napolitano's directive does not go so far as to say that U.S. citizens can file a visa petition to obtain permanent residency, or a green card, for a same sex partner who is also an alien.  The Defense of Marriage Act prohibits the U.S. Government from considering a same sex partner to be a spouse, even if the homosexual couple has married in a state or country where same sex marriage is legal.  To change this policy would take an act of Congress.

The text of the letter can be found at this link:

http://www.kovatchimmigrationlaw.com/12-3384-Nadler-S1-Signed-Response-09.27.12.pdf

Much of what is written in the press on this is confusing.  Here are some links to the best of the articles I've seen so far:

http://www.nytimes.com/2012/09/29/us/homeland-security-puts-it-in-writing-on-immigration-policy-and-gay-couples.html?_r=0

http://latino.foxnews.com/latino/news/2012/09/28/dhs-to-ease-immigration-rules-for-gay-couples/http://latino.foxnews.com/latino/news/2012/09/28/dhs-to-ease-immigration-rules-for-gay-couples/

By:  William J. Kovatch, Jr.
(703) 837-8832

Deferred Action Scams Are All Too Common

Here's an article from the Modesto Bee, making the same point I made below.  Beware of scams.  Be conscious of price and of what you are getting for your money.  There was another angle I saw out there.  Apparently, some unscrupulous people are having applicants pay them to help fill out the forms and compile the documents, but then using the information for identity theft.

The article also affirms my pricing schedule on deferred action applications.  $500 to help you fill out the form, compile the documents, and engage in reasonable follow-up is about what you should be willing to pay.

If you have any more questions about the deferred action program, or would like to hire me to assist you in the process, then give me a call at (703) 837-8832.

http://www.modbee.com/2012/09/01/2354703/applicants-advised-of-scams-legal.html

By:  William J. Kovatch, Jr.
(703) 837-8832

DREAMers Beware of Scams When Applying for Deferred Action

DREAMers, thinking of applying for deferred action for childhood arrivals?  Be careful not to be taken.  I am hearing of a number of scams driven more by greed than a desire to help.

The other night, I spoke with a Latina woman who told me that her son had an appointment for an "orientation" on the deferred action program.  He was going to be charged $700 for it.  An "orientation?"  Was that going to include help with filling out the forms, compiling the documents and following up in case something goes wrong?  "No," she told me.  Only an orientation.

I was outraged.  First, this deferred action program is not difficult to understand.  The requirements are out there.  There has been plenty of press on it.  Sure, I think much of the press might be a little misinformed.  But, in my view, that's one reason you talk to a knowledgeable lawyer about it.

Mind you, I am not against making a living.  I know I have to.  But, there's a big difference between making a living and fleecing someone.  Yes, I charge a $100 consultation fee.  But, it is my policy that I credit you for that fee against my total legal fee if you hire me.  The consultation fee is just an understanding that my time is valuable, and if you don't hire me I ought to get some compensation for sharing my knowledge.

But when it comes to "orientations," I am more than happy to come to a group, prayer session, ESL class or the like, and give a talk on the deferred action program (or any other immigration topic for that matter) free of charge.  The idea being that if you are impressed with my knowledge, you will hire me to give you a service to guide you through the process.

In sum, be careful of scams.  And if you want me to come to your group, just call, and we'll arrange a time.  (703) 837-8832.

DREAMers Asking Schools for Transcripts

Schools across the country are experiencing an increase in transcript request.  In this article, one Minnesota school district has even waived the $15 transcript fee so it an help undocumented aliens get the evidence they need to apply for deferred action for childhood arrivals (DREAMers).

http://minnesota.publicradio.org/display/web/2012/09/25/social-issue/deferred-action-young-immigrants-request-school-records/

By: William J. Kovatch, Jr.
(703) 837-8832

Deferred Action for Childhood Arrivals (DREAMers) Intake Form

Deferred Action for Childhood Arrivals (DREAMers) Intake Form, Click Here

For an appointment, call William J. Kovatch, Jr. at (703) 837-8832.

Diversty Visa Program to be Replaced?

 Apparently, there is a proposal to end the diversity visa program (also known as the lottery), and replace it with more immigrant visas for those who earn advanced degrees in science and technology.

The diversity visa program is essentially a lottery.  The visas are available by country, based on how many people come to the United States from those countries.  Countries like Mexico, the Philippines, India and China, where there are a lot of immigrants coming to the United States, wind up with none of the visas, while immigrants from countries like Nepal and Morocco have a better shot.

A person who wants to immigrate enters a lottery.  If they win, they get a chance to apply for that visa.  But, the visa is only available to people who have certain degrees or skills.  Cooks, for example, would not qualify for a diversity visa.

The program is confusing, since the requirements are not well publicized.  This means that at times the winners of the lottery only find out later that they do not actually qualify for the visa.

In my opinion, the program needs reform.  But, I am not sure I would scrap it altogether.

http://www.washingtontimes.com/news/2012/sep/18/high-tech-science-grads-favored-in-visa-proposals-/

Update (9/25/2012):  The Republican bill failed.  It seems that there is a sharp difference between the parties on whether it is necessary to cut the diversity visa program in order to add new visas for science, technology, engineering and math graduates.  Personally, I don't get why immigration needs to be a zero-sum game.  I think the diversity visa program needs some sort of reform.  But without it, there are a large number of people in small countries who may never get a chance to experience the American dream.

http://www.computerworld.com/s/article/9231522/Republican_STEM_visa_bill_fails

DREAMers Not Entitled to Health Insurance Subsidies

According to the New York Times, those who received deferred action for childhood arrivals (DREAMers) will not be eligible for federal subsidies to buy health insurance.

http://www.nytimes.com/2012/09/18/health/policy/limits-placed-on-immigrants-in-health-care-law.html?pagewanted=all&_moc.semityn.www

Updated Information for DREAMers (Deferred Action for Childhood Arrivals)

USCIS recently updated its Frequently Asked Questions on the deferred action for Childhood Arrivals (DREAMers) program.

The highlights:

You cannot travel outside of the United States after August 15, 2012 and still be considered for deferred action.  Once deferred action is granted, travel abroad is not automatic.  You will need to apply for advance parole before leaving.

You do not need to document each and every day of continued presence.  Affidavits can be used to explain any gaps in formal documentation of your presence.  But, you must submit two or more affidavits from people who have direct, personal knowledge of your presence in the United States.

You may need to provide evidence from your employer.  USCIS promises:  "This information will not be shared with ICE for civil immigration enforcement purposes pursuant to INA section 274A unless there is evidence of egregious violations of criminal statutes or widespread abuses."  Two things to note on this one.  First, this is just a promise, and not law.  Second, USCIS says it will share information with ICE in cases showing that the employer engaged in eggregious violations of the law.

Here is the website:

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=3a4dbc4b04499310VgnVCM100000082ca60aRCRD&vgnextchannel=3a4dbc4b04499310VgnVCM100000082ca60aRCRD

Can Facebook Entries Help Applicants for Deferred Action for Childhood Arrivals (DREAMers)?

This Washington Post article hints at a possible creative solution for those who apply for deferred action for childhood arrivals (DREAMers), and who need proof of physical presence: Facebook pages.

Applicants must show five years of physical presence before June 15, 2012, as well as physical presence on June 15, 2012 and at the date of filing.  For some undocumented aliens, there may not be any official records or even mail to prove your physical presence.

Facebook, however, has a function that allows you to "check-in" at certain places.  If you use a mobile device with a GPS locator, Facebook finds where you are, and posts it for you when you check-in.  If you had a habit of "checking-in" over a course of time, and the places where you check-in are in the United States, then perhaps your Facebook account can be proof of physical presence in the United States.

There is no guarantee that the Government will accept such proof. There is an argument that this creates the potential for fraud.  Sure, you could give your cell phone to a friend and have that friend "check-in" for you.  Of course, for this to have been fraud, you would have had to have planned for the Administration to come up with this program years ago, and made a conscious effort to have others "check-in" just to show your physical presence. 

On the other hand, using Facebook as evidence can be a double-edge sword.  First, if you happened to have left the United States and checked in the last five years, the Government will see that.  Also, if you have posted things that you are not proud of, like an urging to violently overthrow some government, or admitting to the elements of some crime even if you were never convicted, then the Government will know that too.  If you are going to use Facebook as evidence, be careful to look through your posts carefully.

Nonetheless, I have been warning people for years that the Government does look at your Facebook accounts.  In marriage visa petitions, for example, if the Government were to see that the intending immigrant actually lists their status as "single," well, that can be a problem.


In the absence of other evidence, though, I have learned that at times you have to be creative.  I have seen Facebook posts used in criminal cases successfully (for example, showing that an injury that is the subject of a criminal charge was actually present in a photo posted on Facebook before the alleged assault happened).  Perhaps it could be used successfully in immigration cases as well.

http://www.washingtonpost.com/local/documentation-for-deferred-action-leads-to-confusion-among-illegal-immigrants/2012/09/13/25faa7ce-fb71-11e1-b153-218509a954e1_story.html

Informational Video on Deferred Action for Childhood Arrivals (DREAMers)

Work Permits to DREAMERS Being Distributed

According to the Los Angeles Times, the first of the work permits to those young persons who applied for deferred action under the President's new program (called deferred action for DREAMERS or deferred action for childhood arrivals) are being mailed to those applicants who filed last month.  This turn around time is less than a month so far.

http://www.latimes.com/news/nation/nationnow/la-na-nn-illegal-immigrants-reprieve-20120912,0,4043540.story

Young DREAMERS Skeptical about Deferred Action

Here's another article, this one from the Wall Street Journal, noting that those who would benefit from the deferred action for DREAMERS program are suspicious. They have concerns about the information they are asked to disclose, and about what will happen after the elections. All are valid concerns I believe. As a result, the number of people applying is much lower than expected.

I do believe that people who are currently in removal proceedings have nothing to lose from applying. After all, the worst has already happened -- they are already in removal/deportation proceedings.

http://online.wsj.com/article/SB10000872396390444100404577641961971678728.html

Deferred Action for DREAMERS: No Guarantees Past November

This article from the Huffington Post makes a good point, and one I've been making since June.  Deferred Action for young people, or DREAMERS, is not law.  It is an exercise of discretion.  As such, there is no guarantee that it would continue if a new administration is elected.  In fact, those who are applying now should be aware that if there is a new administration, there is always the possibility that the program will be immediately terminated along with any employment authorizations issued under the program.

http://www.huffingtonpost.com/2012/08/16/deferred-action-romney-continuation_n_1790997.html

Investor Visas Being Investigated

As this article points out, the Federal Government is investigating investor visas, or EB-5 visas.  The whole idea is that a person can invest $1 million and employ 10 people, or $500,000 in a high unemployment or rural area and employ 5 people, and get permanent residency.  I recognize that this tool exists, and would be happy to assist anyone who legitimately has that kind of money to invest in the United States.

Nonetheless, the visa does seem open to fraud.  I know I had been approached by some who had an idea to create a scheme to allow people to apply for this visa.  Smelling something rotten in Denmark, I told them that they could consult with another immigration lawyer. 

So beware.  Know that if you are applying for this kind of visa, that your application will be closely scrutinized.

As an aside, the article gets some of the legal facts wrong.  To be clear, if the visa is granted, the person gets 2 years of conditional permanent residency.  All that means is that the immigrant has to apply to lift conditions before the end of the two years, or the visa expires.  This is much like the marriage visa when you have a very young marriage.

http://www.thedaily.com/article/2012/09/10/091012-news-investor-visa/

Deferred Action: What About the Parents?

The President's new program promises deferred action and possibly work authorization for certain young people who are in the United States without legal immigration status.  But, the program raises a question.  What about the parents of the young people?

The deferred action program, also known as deferred action for Dreamers, applies to people brought into this country before age 16, who are under 31, and who have been in the United States for five years as of June 15, 2012.  Certainly, among those who qualify will be minor children.  If that is the case, can the Government ignore their parents?

To answer this, it is necessary too understand exactly what this program is.  The deferred action program is not law.  The DREAM Act has not been passed.  The President has no power to grant legal status to the young people who qualify for this program.  This is an exercise of discretion.

One way to think of it is to think of the police officer who observes illegal behavior on his beat.  The police have the authority to arrest anyone they see who commits a crime.  But, quite frankly, if the police were to do that, we would quickly run out of jail space.  Well-trained police also know that sometimes, people break the law for stupid reasons, and they may not be dangerous criminals.  So, the police exercise discretion.  They do not always arrest every single law breaker they come across.

The same concept applies to the immigration system.  Even though there are millions of people who are in violation of immigration law, the Government is not under a duty to enforce the law with respect to everyone.  Quite frankly, if ever undocumented alien were detained and placed in removal/deportation proceedings, we would quickly run of resources.  There are simply not enough immigration judges, ICE attorneys or detention facilities to enforce the immigration laws on every undocumented alien.

So, the Government has to choose against whom it will enforce the law.  That is, it exercises discretion.  Some cases are easy.  Violent criminals, drug dealers and gang bangers are all top priorities for ICE, and well they should be.  But, what about those people who came here simply to try for a better life, and to send money home to their families.  Yes, technically they are breaking the law.  But, if these are peaceful people, who do not break criminal laws, then ICE considers them low priorities.

There are also humanitarian reasons why the Government may not enforce the law.  Think of the mother of a new born baby.  If the baby was born in the United States, the baby is a U.S. citizen.  In my experience, I have found ICE reluctant to institute removal proceedings against the mothers of newborn U.S. citizens.

These concepts all tie back to the current deferred action program.  The President has established a set of criteria to identify people to whom he wants to exercise his discretion not to deport.  But, this does not mean that this is the only set of people who will ever qualify for deferred action.  The Government has the authority to grant deferred action to any person who is in the country without a valid legal status.  Just because you don't meet all of the criteria in this particular program, does not mean that there is no hope.

And that is where the humanitarian reasons come to play.  Let's say you have a child who came to the United States at age three.  Now the child is nine.  That child is enrolled in school, and presently in the United States.  That child can qualify for deferred action.  But, how is that child to be supported?  Who is going to pay for the child's food, housing and medical bills?  The most obvious answer is the child's parents.  It is for this reason, that I believe that the undocumented parents of such children may still qualify for deferred action, but in their own right and not under this particular program.  Quite frankly, if the child is going to apply, the Government will already have the address of the family on file.  Unless we are talking about criminal issues or security problems, I don't see much more of a risk for the parents to request deferred action too.

But how do you apply?  The old guidelines for applying for deferred action held that you applied to the District Director.  And perhaps that is still the right answer.  However, I have made one application for a person ho did not meet all of the qualifications, arguing that the general policy should still protect my client.  I made the application before the new policy procedures were announced.  I got a phone call from USCIS on August 16, telling me that now that the new procedures have been issued, that I should re-apply, but this time using those procedures.  Using that as my guide, I would make the application for the parents through the same procedures, but make sure it is clear that we are not applying under the President's specific guideline.  Rather, we are applying based on the President's inherent authority to grant deferred action to any undocumented alien.  Check in later, and I'll let you know how it works out.

Should I Apply for Deferred Action?

Sure, the President has announced a program to grant deferred action to young people who were brought to the United States before they were 16, are under 30, and have been in the United States for 5 years.  Yes, you can receive work authorization if approved.  But, should you apply?

The big concern is that everyone who affirmatively applies for deferred action will be calling attention to themselves from the Government.  Deferred action is a discretionary program.  That means that the Government is not required to grant it to anyone.  So, if you are denied, there is a chance that the Government will come after you and place you in removal/deportation proceedings.  Is it worth the risk?

First, if you are already in removal/deportation proceedings, or if you have been ordered removed or granted deferred action, then you have nothing to lose.  The worst possible scenario has already happened to you.  You might as well give it a shot and apply.  Just be careful of your time frames, so your time for voluntary departure does not run our before USCIS makes a decision on your case.

There are people who should absolutely not apply.  Do you have any kind of criminal record?  Then do not apply.  You will find that USCIS will deny your application.  Then, on some random morning within a week of the denial, at about 3:30 am, you will find ICE officers, heavily armed, banging on your door to take you into custody.

Do you have an outstanding order of removal or deportation?  Perhaps you crossed the Rio Grande years ago, were placed in proceedings, and released on your own recognizance.  Then, you never made it back to court.  If you have an old order of removal or deportation, then there is a chance that your application will be denied, and like the person with the criminal record, ICE will come banging on your door at 3:30 am to take you in and send you back to your home country.

So, who should apply?  As long as you remember that you are taking a risk, then you might find it beneficial to apply for deferred action.  If it is very important to you that you receive work authorization, then applying for deferred action may make sense.

Also, there is a chance that Congress will eventually pass the DREAM Act, or some other type of immigration reform.  Maybe, just maybe, Congress will give those who applied for deferred action for young people a better place in line if they pass reform.  Of course, this is pure speculation on my part.  But, it is based on some history.  When amnesty last passed, people who had a place in line were given priority over new applicants.  It makes sense to some degree.  When you apply for deferred action, the FBI will do a background check.  If the person passes the background check, then the Government will know already that the person is not a security risk.

But, everyone who applies for deferred action should keep in mind that the program is only as good as the promises of the Administration in power.  If Barrack Obama loses in November, then it is almost a certain thing that the Romney Administration will not renew the program after two years.  In fact, there is no promise that a new administration won't use the information gathered through the deferred action program to round people up and immediately place them in removal proceedings.  Realistically, the chances of that are probably low, as the strain on the Government's resources will be phenomenal.

In sum, if you apply for deferred action, and you are not currently in removal/deportation proceedings, remember that you are taking a risk and that there are no guarantees.

Deferred Action: Do I Need a Lawyer?

I had a consultation last week with a young woman interested in the new deferred action for young people program.  She admitted that at first, she thought that since the forms all looked straight forward, and since she could find all of the documents USCIS wanted, she thought she could do it all on her own.

But then, she saw one of the questions in the Form I-765WS, or the worksheet for the application for employment authorization.  Specifically, the worksheet asks for her to list her current annual income.  She paused when she got to this question, because by admitting that she has a current annual income, she is admitting that she is working illegally.

I think this is a very savvy point, and one that a lot of immigration lawyers who are writing on this topic are missing.  The grant of deferred action is discretionary.  That means, the Government is by no means obligated to grant it to anyone.  By filling out these forms and sending them to the Government, you are calling attention to yourself.  If the Government denies the application, there is always a possibility that the applicant will be placed in removal/deportation proceedings.

If you put an income down, you are admitting to working illegally.  This is itself a reason for the Government to remove you from the United States.  On the other hand, if you put down zero, when you were in fact working illegally, you have just lied in an attempt to gain an immigration benefit.  Lying on an immigration form can earn you a lifetime ban from ever receiving a visa.  And remember, the FBI is doing a background check on you.

Personally, I would find it hard to believe that any person who was brought here under the age 16, and is currently over 18 has not worked "under the table."  If people are being honest, then the Government will receive thousands of applications with people admitting to illegal work.  Now this is just my opinion, but I would not expect illegal work in and of itself would lead to a denial of deferred action.  But I cannot guarantee that.

The real concern is whether USCIS will ask follow-up questions.  If you admit to an income, then USCIS could follow-up with a Request for Evidence.  That is, the Government may ask how you earn your income.  For one thing, the Government could be looking for people who have used another person's green card, or have claimed to be a U.S. citizen, in order to get work.  So, it is entirely possible that the Government will ask you how you got your job, where you worked, and whether you used a false ID card.  It may also spark the Government to ask whether you have been paying taxes on your income.

This is where things could get treacherous.  Using a false ID to get work is a crime.  Using an ID that you know belongs to someone else is identity theft, which is an aggravated felony and can earn you a lifetime ban from receiving immigration benefits.  Claiming to be a U.S. citizen is also a kiss of death for any future immigration benefits.

But, you would not be the only person to be put at risk by responding to these types of questions.  USCIS can ask for details of your job, including your employer.  If your employer has hired you knowing your immigration status, then the employer has violated the law and can face civil and criminal penalties.  Sure, if your job has been with a local fast food restaurant, you may not care too much for your employer's liability.  But, what if you worked for your uncle in his construction business?  Do you really want to risk having your uncle found to be in violation of U.S. employment law?

So you see, even answering a simple question on an immigration form can have real, adverse consequences.  If you are going to apply for deferred action, you need to know the full risk you are taking.  The best person to explain the risks is an experienced immigration lawyer.  Even then, many experienced immigration lawyers are missing some of the possible pitfalls present in this Government program.