Special Immigrant Juvenile Status Findings Made by Virginia JDR Court

A judge in the Norfolk Juvenile and Domestic Relations General District Court granted an order making the findings necessary for a teenage girl to apply for Special Immigrant Juvenile Status (SIJS).  The order will now allow the girls to submit an application to U.S. Citizenship and Immigration Service to become a permanent resident.

Last year, thousand of unaccompanied minors fled Central America to brave the treacherous journey to cross the border into the United States.  This girl, whose father abandoned her before he was born and who was living with her grandmother, was among those unaccompanied children.  Her grandmother had become too ill to take care of her, and she wanted to be reunited with her mother.

Once across the border, she reported herself to the immigration authorities and was taken into detention. Eventually, the Office of Refugee Resettlement became involved and reunited the girl with her mother.

The girl was placed in removal proceedings in Immigration Court. Although she lived in Norfolk, there is only one Immigration Court with jurisdiction over aliens living in Virginia.  That is the Immigration Court located in Arlington.  This meant that the girl and her mother had to wake up early, and leave Norfolk by 4:00am in order to make a 9:00am Immigration Court hearing.

Initially, the case seemed hopeless.  However, more and more immigration practitioners have been using the SIJS provisions of the Immigration and Nationality Act (INA) to help children in similar situations.

The SIJS provisions permit a state court with jurisdiction over juveniles and custody matters to make findings that: (1) the child has legally been committed to, or placed under the custody of, an agency or deparment of a state, or an individual or entity appointed by a state or the court; (2) reunification with one or both of the parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law; and (3) it is not in the child's best interests to be returned to the child's or parents' home country or country of last residence.

Once the state court makes these findings, the child can then file an I-360 visa petition along with an I-485 application to adjust status to allow USCIS to make the child a permanent resident.

Because the language of the statute requires a finding that reunification with one or both of the child's parents is not viable, this has allowed a parent of a child who entered the United States unaccompanied to apply for custody through the state family courts and then apply for permanent residency for their child, so long as there is evidence that the other parent has been abusive, neglectful or has abandoned the child.  As was the case with the family who appeared before the court in Norfolk, the mother applied for custody and the court made findings that the father had abandoned the child.

This law has been used increasingly by single parents who are present in the United States without legal status to at least help give their foreign born children legal status.

The drawback to this law is that no parent of a child granted SIJS may then use that relationship with the child to apply for their own immigration benefits.  Thus, when a child granted SIJS status eventually becomes a citizen, that child cannot apply for a visa for his or her parents.

By:  William J. Kovatch, Jr.

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Immigration Reform Passes Senate; What Will Happen in the House?

On June 27, 2013, immigration reform passed the Senate by an overwhelming 68-32 vote.  The bill which passed the Senate was broad set of reforms, from asylum law changes to the creation of immigration benefits for a broad set of people currently present in the country without status.  The most controversial portion of the bill appears to be the creation of the Registered Provisional Immigrant status, which provides legal status to alien present in the country since on or before December 31, 2011.

Reform now faces a tough test in the House of Representatives, which is controlled by the Republicans.  The Chairman of the Republican National Committee, Reince Priebus, has stated that the country needs comprehensive immigration reform. Speaker of the House, John Boehner, however, has made it clear that the House will not simply take up the Senate bill and vote on it.  Instead, the House will craft its own bill, based on the leanings of Republican majority.  Some analysts believe the House will pass a series of smaller bills, each addressing a discrete topic of immigration reform.  Other believe that the House will pass a comprehensive bill, and will send the issue to a joint committee with the Senate to negotiate a compromise.

One of the biggest sticking points for House Republicans could be the Registered Provisional Immigrant status, which some view as amnesty for illegal actions.  Of course, Republicans may pressure to find a way to appeal to Latino voters, who voted for President Obama in the last election at a ratio of 3 to 1.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Deferred Action Recipients May Get Preferential Treatment in Immigration Reform

For those who waited to file an application for the President's Deferred Action for Childhood Arrivals (DACA) program, this may be the time to do it.  Under the current version of the Senate bill, those who received deferred action under the DACA program may automatically qualify for Registered Provisional Immigrant (RPI) status.  The bill gives the Secretary of Homeland Security the discretion to grant RPI status to DACA recipients who have not otherwise engaged in conduct that would render the DACA recipient ineligible for RPI status.  In fact, those who received DACA benefits may be immediately eligible for citizenship upon becoming a permanent resident.

DACA is the program announced by the President last year where certain young people who entered the United States before the age of 16 could be granted a reprieve from deportation and work authorization.  The requirements for DACA eligibility can be found here.

Current estimates are predicting passage of the bill in the Senate with as many as 70 votes.  How the bill will fare in the House, which is controlled by Republicans, remains to be seen.

By:  William J. Kovatch, Jr.

(703) 837-8832

info@kovatchimigrationlaw.com

What is Registered Provisional Immigrant Status?

With a vote coming up in the Senate, one of the hot topics in Washington is immigration reform.  While passage of immigration reform is by no means guaranteed, even critics of current reform bill, such as Rush Limbaugh, believe that passage in the Senate is likely.  It is prudent, therefore, to prepare for the passage of immigration reform, and in particular the creation of a new immigration benefit, Registered Provisional Immigrant.

Under the current bill (click here for the text of the Senate bill, S. 744), Registered Provisional Immigrant, or RPI, status can be granted to those who are already present in the country illegally.   

The current qualificationsfor RPI status are that the applicant:

• have been present on or before December 31, 2011;
• have continuous physical presence in the United States since December 31, 2011;
• pay a $500 fine along with the filing fee for the application;
• pay all taxes due;
• not have been convicted of an aggravated felon as defined by U.S. immigration law, any other felony, three of more misdemeanors, an offense in a foreign country that would otherwise render the applicant inadmissible under U.S. immigration law, or unlawful voting;
• is not a threat to national security;
• does not have a communicable disease such as tuberculosis;
• is of good moral character.

Dependent spouses and children of the applicant may also be eligible.

While the bill has not passed, potential applicants would be prudent to start collecting documentation necessary to prove eligibility.  This is of particular importance because the bill contains a deadline of one year from the date of the publication of the application procedures in the Federal Register in order to make the application.

What documents are you likely to need?  At this time, there is no definitive list.  However, using other programs as a guide, certain requirements can be expected:

•  Proof of identity:  birth certificates, passports, documento unico de indentidad (DUI)
• Proof of physical presence:  official mail such as utility bills, tax records, school records, church records, leases, marriage certificates (if married in the United States), birth certificates of children born in the United States
• Proof of taxes paid: tax returns, W-2 forms, 1099 forms, employment records
• Criminal issues: criminal background reports from your local police, criminal background reports from the FBI, criminal background reports from your home country, certified copies of all judgments and proof of completion of sentence (including any proof of payment of fines, fees or restitution)
• Good moral character:  letters from friends, relatives, employers, religious leaders

Those who qualify for RPI status will be eligible to apply for full permanent residency after 10 years.

By:  William J. Kovatch, Jr.

info@kovatchimmigrationlaw.com

(703) 837-8832

Details of the Proposed Immigration Reform

The Gang of Eight introduced its proposal for immigration reform in the Senate today.  The bill is 844 pages long, and will take time to read, digest and analyze.  However, one organization, the Migration Policy Institute, has published a detailed comparison of the proposals introduced in this bill, and the proposals made in 2006 and 2007.

The heart of the proposal appears to be to require the Department of Homeland Security to create strategies to provide greater border security, and to implement those strategies, in exchange for permitting those who are present in the United States without legal status to be given provisional status, which could eventually lead to citizenship.

First, Homeland Security must submit strategies for protecting the southern border within six months of the passage of the bill.  Once the strategies have been submitted to Congress, then a new status, Registered Provisional Immigrant ("RPI"), is created.  The Secretary of Homeland Security must then certify to Congress and the President that the plans have been submitted, implemented and substantially operational or complete.  A mandatory employer verification system (E-Verify) and an electronic exit system at air and sea ports must also be implemented.  Once all of these conditions have been met, then those with RPI status may apply for permanent residency.

RPI status must be renewed every six months.  Eligible aliens must have been continually present in the United States from December 31, 2011.  Those with RPI status must learn English, and pay all taxess before they can adjust to permanent residency.  However, certain deportees who were present before December 31, 2011 may apply for re-entry under RPI status, if they were not deported for criminal reasons and other criteria are met.

To received RPI status, there will be a $500 fee at filing, and a $500 fee upon renewal.  To adjust to permanent residency, there will be a $1,000 fine, plus a processing fee ($400 fine for agricultural workers). 

It should be stressed that this is just a proposal.  It is subject to mark-up and amendment in the Senate.  It must also pass the House of Representatives and be signed by the President before it becomes law.  Thus, changes should be expected.  More details on the proposal shall follow.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com