Deferred Action for Childhood Arrivals (DREAMers)

The procedures for Deferred Action for Childhood Arrivals (DREAMers) who were brought in before age 16 are here. The requirements are:

You may request consideration of deferred action for childhood arrivals if you:

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.

Applications are made on Form I-821D, I-765 and I-765WS. The filing fee is $465.

Any applicant should be aware that you are bringing yourself to USCIS's attention. If USCIS decides that you do no qualify, then it is entirely possible that you will be placed in removal proceedings. USCIS promises that only those with criminal issues will be referred to ICE. But, that is only a policy, and can be changed, especially if there is a new administration.

I am happy to assist in completing the application, to enter my appearance with USCIS and to do reasonable follow-up for a fee of $500. If an interview is requested, there would be an additional attorney's fee of $500. If there is a need to respond to a Request for Evidence or a Notice of Intent to Deny, or a desire to file a Motion for Reconsideration, then I would charge my hourly rate of $250.

The procedures can be found at this website:

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=f2ef2f19470f7310VgnVCM100000082ca60aRCRD&vgnextchannel=f2ef2f19470f7310VgnVCM100000082ca60aRCRD

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

Handling Consular Processing

When you are handling a consular processing case, it is often important to remember with whom you are dealing.  All people who join the US foreign service will do a rotation in the consular division.  That means that many of the people in the Consular Section are just "doing their time," until it is their turn to move into a policy position.  In many cases, the consular staff may not be as well trained as USCIS officers on the intricacies of immigration law.  Many of them will simply be looking to the Foreign Affairs Manual, and applying it as if it were law.

For an immigration attorney, that usually means being polite, and sometimes going with the flow.  For example, there may be complications in analyzing just how many co-sponsors are needed in a particular case.

All family-based immigrants need a sponsor.  That is, they need someone who will promise to be financially responsible for the immigrant to assure the US Government that the immigrant won't become a public charge (i.e. go on welfare).  The sponsor must make 125% of the poverty level for the size of the sponsor's family, plus the immigrant (100% poverty level if the petitioner/sponsor is in the military).  So, if the sponsor has a family of 4, and is sponsoring 1 immigrant, the sponsor's income must be above 125% of the poverty level for a family of 5.

The petitioner must always act as a sponsor.  But, if the petitioner's income is not enough to meet the requirement, the petitioner needs a co-sponsor.  The co-sponsor must also have a sufficient income to support his or her family, plus the immigrant at 125% of poverty level.

The complication for the Consular staff is analyzing the Affidavit of Support, which is the form the sponsor and co-sponsors use to show their willingness to be financially responsible.

When you have an immigrant who is coming in under the preference system, that immigrant may have derivative beneficiaries.  For example, if a permanent resident files a petition for a foreign spouse, and that foreign spouse has minor children, the minor children can immigrate as derivative beneficiaries of the foreign spouse.  In this situation, the sponsor files one form, and lists all of the derivative beneficiaries on the form.

When the immigrant is  the spouse of a US citizen, then the immigrant is considered an "immediate family member."  Immediate family members get their visas sooner, but cannot have derivative beneficiaries.  That means that if the foreign born spouse has minor children, the US citizen spouse has to file separate visa petitions for the foreign spouse and each of the minor children.  This also means that separate affidavits of support have to be filed for the foreign spouse and each minor child.

Consular staff do not always get this.  They see a family immigrating, and assume that the head of the family is the principal beneficiary, and each of the children are derivative beneficiaries.  So, they may expect one affidavit of support, with the children listed as derivative beneficiaries.

This is not the proper way of doing things.  With immediate relatives, each immigrant has a separate petition, and each should have a separate affidavit of support.

As an attorney, the first line of communication should be to try to explain this to the Consular staff.  But, you need to approach this with the understanding that the Consular staff may not be as well trained as you would like, and will likely stick to their guns, even if they are wrong.  Thus, you should have prepared the second line of communication.  Be ready to submit the forms the way the Consular staff is requesting, but with a polite explanation of why you think this is the wrong way to do it.  That way, you don't cause too much of  a delay in processing the visa, and getting the family members over to the United States as soon as possible.

This is another reason why it is important to have an attorney assist you in the Consular Processing stage.  Some of the rules are very esoteric, and having someone who understands immigration law and immigration law speak could help move things along much quicker.

Supreme Court Strikes Down Key Provisions of Arizona's Law

On June 25, 2012, the U.S. Supreme Court struck down three key provisions of Arizona's controversial immigration law.  Specifically, the Supreme Court struck down provisions that: (1) made failing to comply with federal alien registration requirements a state misdemeanor; (2) made it a state misdemeanor in Arizona for an alien without work authorization to seek employment; and (3) authorized state and local police to arrest a person when there was probable cause that the person has committed a public offense that made the person removable.  The Court upheld one provision, which required state and local police to verify a person's immigration status when stopped, detained or arrested.

The Supreme Court's ruling was based on the Supremacy Clause of the US Constitution, which provides that the US Constitution and the laws of Congress in pursuance thereof are the supreme law of the land.  Article I of the Constitution specifically gives Congress the power to regulate immigration.  Because the US Government has a comprehensive scheme for enforcing US immigration laws, the states cannot adopt their own immigration enforcement laws.

To put it in simple terms, the US Government has its own priorities in how it expends its resources in enforcing immigration law.  It's priorities include violent criminals, drug trafficking and repeat offenders.  State Governments cannot trump those priorities by making it a state crime to fail to comply with US immigration law.

On this point, I think it is important to note that being present in the United States without immigration status may be a violation of civil immigration law.  However, it is not a criminal violation.  The Supreme Court essentially said that the states cannot make it a criminal violation.  That is the Federal Government's job.

Indeed, state action to criminalize illegal presence, illegal work, and failing to register with the Federal Government may actually conflict with Federal policies.  Specifically, it would conflict with the policies recently announced by the Obama Administration concerning young people who were brought to this country at an early age.  It would also conflict with Federal law, which essentially forgives illegal work when a person who is out of status is married to a US citizen, and applies to adjust to permanent residency.

All in all, the Supreme Court's decision appears to have gotten the law correct.  A copy of the decision can be found at http://www.supremecourt.gov/opinions/11pdf/11-182.pdf.

Applying for Deferred Action Under the President’s New Policy

On June 15, 2012, President Obama and Homeland Security Secretary Napolitano announced a new policy to permit certain undocumented young people to remain in the United States and apply for work authorization.  No specific procedures have been adopted yet.  However, if you qualify, there are certain things you can do to prepare.

Do I Qualify?

To qualify, you must meet five criteria:

(1) Been brought to the United States while under the age of 16;

(2) Have continuously resided in the United States since June 15, 2007 or before;

(3) Currently be in school, have graduated from a high school, have earned a general equivalency diploma, or be honorably discharged from the Armed Forces or Coast Guard of the United States;

(4) Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or does otherwise poses a threat to national security or public safety; and

(5) Is 30 or younger.

What Benefits Can I Get?

Postponement of removal (deportation)

Employment authorization

Can I Become a US Citizen?

No.  This policy does not lead either to permanent residency or citizenship.  It is only temporary protection from being removed (deported) from the United States.

How Do I Apply?

Since I first published this blog entry, new procedures were adopted.  See my later blog entries for a discussion on the procedures.

I am in Removal (Deportation) Proceedings Now.  What Do I Do?

As long as you are not in detention, you can still apply.

I am Not in Removal (Deportation) Proceedings, But I Think I Qualify.  What Should I Do?

If you are not in removal or deportation proceedings, applications should be made to the U.S. Citizenship and Immigration Service (“USCIS”).  There is already a process for applying for deferred action in general.  That is to apply to the District Director of the USCIS District where you live.  You should put together a letter explaining why you qualify for deferred action, and include supporting documentation.  It is expected that USCIS will adopt similar proceedings for this particular policy.

How Long Will the Benefit Last

Under this policy, you can receive deferred action and work authorization for two years.  Then, you can apply for an extension every two years after that.

Note, however, that this is an exercise of discretion of the Obama Administration.  There is no guarantee that this policy will continue.  Plus, it is an election year.  If a new president is elected, there is no guarantee that he will continue with this policy.

New Policy Promises to Help Young Undocumented Aliens

On June 15, 2012, the Secretary of Homeland Security, Janet Napolitano, issued instructions to US Customs and Border Patrol (“CBP”), US Citizenship and Immigration Services (“USCIS”) and US Immigration and Customs Enforcement (“ICE”), concerning the exercise of prosecutorial discretion and the granting of deferred action in case involving undocumented aliens who came to the United States before the age of sixteen. Through these instructions, Napolitano aimed to implement a new policy of focusing enforcement resources on high priority cases, and not on lower priority cases of law abiding young people who have been brought to the United States. The text of Napolitano's memorandum can be found here. To qualify for the exercise of prosecutorial discretion under the new policy, an alien has to meet the following criteria: (1) the alien came to the United States before the age of sixteen; (2) the alien continuously resided in the United States for five years before June 16, 2012; (3) the alien is currently in school, has earned a high school diploma, has earned a general equivalency diploma, or was honorably discharged from the Coast Guard or Armed Forces of the United States; (4) the alien has not been convicted of a felony, a significant misdemeanor offense or multiple misdemeanor offenses, or is not a threat to national security or public safety, and (5) is thirty years of age or less. If CBP, USCIS or ICE encounter such a person, Napolitano instructed that the agencies should exercise their discretion, on a case by case basis, not to place that person in removal proceedings. Indeed, the agencies were instructed to develop a process for granting deferred action to such persons who are at least fifteen years old for two years. Deferred action occurs when the immigration authorities choose not to place a person in removal proceedings, despite the violation of immigration law. A person who has been granted deferred action may apply for work authorization in the United States. After the two years, the deferred action would be subject to renewal. If the person is already in removal proceedings, Napolitano instructed that ICE should determine whether to exercise its prosecutorial discretion, on a case by case basis, to terminate the removal proceedings, and grant the person deferred action for two years, subject to renewal. Pursuant to the Immigration and Nationality Act, US immigration authorities already possess the discretion to decide whether to place a person in violation of US immigration laws in removal proceedings, or whether to grant deferred action to such a person. Last year, the President instructed ICE to concentrate its resources on high priority cases, which would include violent criminals and threats to US national security and public safety. President Obama instructed ICE to consider, on a case by case basis, whether ICE should exercise its prosecutorial discretion in low priority cases not to continue with removal proceedings. Napolitano’s instructions represented more specific guidelines in how immigration authorities should exercise its discretion under the law. This specific policy is aimed to help a small class of undocumented individuals. Namely, it is meant to assist those who were brought to this country before the age of sixteen, and thus did not possess the intent to violate immigration law themselves. While this announcement of official Homeland Security policy is focused on a narrow class of people, it does not mean that some form of relief will not be made available to other undocumented aliens. Immigration authorities still possess the discretion under the law not to pursue removal proceedings for people who are technically in violation of immigration law. Indeed, immigration authorities have the discretion to grant deferred action and consider whether to grant a person otherwise in technical violation of immigration law work authorization. ICE has already been instructed to concentrate its resources on high priority cases. Those cases include aliens who: (1) have engaged in, or are suspected to have engaged in, terrorism and/or espionage; (2) have been convicted of violent crimes, or are repeat offenders; (3) have participated in organized criminal gangs; (4) have outstanding criminal warrants; and/or (5) otherwise pose a serious risk to the public safety. An undocumented alien who does not fall into one of these categories may still petition immigration authorities to exercise prosecutorial discretion, and potentially granted deferred action. The new policy does not create a path to permanent residency or citizenship. Indeed, it would only grant a weak form of relief, and that is a promise not to enforce US immigration law. Deferred action can be revoked at any time, for any reason. The instructions created no constitutional right to the exercise of prosecutorial discretion or deferred action. A person granted deferred action can still be removed (or deported) from the United States should the Administration change its policy, or a new Administration disagree with this policy. The new policy does not grant amnesty. That is, it does not forgive the violation of immigration law. It only gives an undocumented alien a promise that for a limited period of time the US Government will not enforce immigration law requirements on an individual. If you believe that you may meet the criteria set forth in Napolitano’s instructions, you should consult with a knowledgeable immigration lawyer to discuss your options.

Why Consult a Lawyer?

Immigration law is form-driven. And since you are answering questions about yourself, it may appear deceptively simple. But, even for an apparently simple case, it is a good idea to consult with a lawyer first. Recent example - as I was sitting waiting with my clients for their interview, I couldn't help overhear a USCIS Officer speak to a woman who applied for citizenship. She just passed her English and Civics tests, but the adjudicator was trying to explain to her that since her parents became citizens when she was under 18, she already was a citizen. Now, she needed to file another form, pay another filing fee, and get a passport. While this was generally good news, it meant that she spent $680 on a filing fee, and attended an interview that was completely unnecessary. If she had consulted with a knowledgeable immigration lawyer before filing the application, she could have saved herself time and money.

Admitted to the Eastern District of Virginia

Now admitted to practice in the U.S. District Court for the Eastern District of Virginia. Do you have a delayed immigration petition? A citizenship application that has been pending for years? I can help you file a suit in the Eastern District to try to force the Government to make a decision on your case.