I'm Not Dead Yet: How DAPA Has Survived the Supreme Court Decision

Yesterday, in a one sentence decision, the U.S. Supreme Court announced that they were deadlocked in the case of United States v. Texas, and therefore the Circuit Court decision stands. 

The media hailed the decision as a major defeat for President Obama's Deferred Action for Parents of Americans (DAPA) program. The President announced in November of 2014 that parents of U.S. citizens and permanent residents present in the United States could qualify for a promise that the government will not seek their deportation and a chance to apply for work authorization. The President took matters into his own hands when he believed Congress had become deadlocked on the issue of immigration reform. Critics immediately dubbed the move amnesty. 

Texas and other states filed suit over the measure, claiming the President had no authority to implement the program without congressional authorization. Before the District Court could hold a hearing on the main case, the states sought a preliminary injunction to prevent the Administration from implementing the program while the lawsuit was pending. The District Court granted the injunction. The Administration appealed. The Circuit Court upheld the injunction. The Administration sought review before the Supreme Court. 

Meanwhile, the main case continued before the District Court. 

The Supreme Court decision concerned only the preliminary injunction. Because the main case is still pending, this means that the issue could once again reach the Supreme Court. 

What this means is that the 2016 presidential election has now become a critical election for immigration reform. Justice Antonin Scalia died this year, leaving an open Supreme Court seat. With an even number of Supreme Court justices, any case where the vote is tied means that the lower court decision stands. The Republicans in the Senate have refused to hold hearings on President Obama's nominee to take Scalia's seat. 

This means that the new President will have the power to appoint a new justice, and thereby break the deadlock before the main case reaches the Supreme Court.  The fight over DAPA, therefore is not over; its fate rests in the hands of the voters. 

By: William J. Kovatch, Jr. 

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Want to Help a Brother or Sister Come to the U.S.? You May Need to Act Soon!

The so-called "Gang of Eight" unveiled its immigration reform proposal in the Senate today.  The proposal contained a lot of changes; too many to detail in a blog entry such as this.  It does appear that that in order to account for the undocumented aliens who may be permitted to stay in the United States, other visa categories may be restricted or eliminated altogether.  The full text of the 844 page immigration reform bill, titled the "Border Security, Economic Opportunity, and Immigration Modernization Act," can be found at this link.

One of the more surprising proposals is the elimination of permanent residency visas for brothers and sisters of U.S. citizens.  Currently, a U.S. citizen can petition for a visa for a foreign-born brother or sister.  A very limited number of such visas are available on an annual basis, meaning that there is currently a backlog of approved visa petitions waiting for a visa to become available.  Dubbed category F4, for most countries visas for brothers or sisters of U.S. citizens are just becoming available for petitions which were filed on or before May 1, 2001.  For brothers and sisters from the Philippines, visas are just becoming available where the visa petition was filed on or before October 1, 1989.

The bill will now be introduced in the Senate, and will go through debate and "mark-up."  Mark-up is where amendments to the bill can be considered.  Even if the bill passes the Senate, it must pass the House of Representatives as well.  This means that it is likely that the bill which was introduced today will undergo numerous changes should it become law.

Nonetheless, the proposal to eliminate the brothers and sisters of U.S citizens category should cause some degree of urgency for those who wish to assist their sibling in coming to the United States.  If a citizen wants to help a sibling, that citizen should not delay in filing the visa petition.  Waiting to file could mean that the citizen and the sibling have lost their opportunity to obtain a permanent residency visa.

If you want to consult with an immigration attorney about filing a sibling petition, or for any other immigration matter, call me at (703) 837-8832 for an appointment.

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

Is a Criminal Conviction Necessarily the Death Knell to a Naturalization Application?

Over the past few years, it has been my experience that USCIS has been very thorough in analyzing naturalization applications.  This has been confirmed to me by other experienced immigration lawyers.  USCIS sees the naturalization application as its last chance to uncover any fraud in the immigration process.  So, it will go back and examine the basis for the applicant's permanent residency.  USCIS will also be sure to look into the applicant's criminal history.  USCIS will want to make sure that the applicant meets all of the requirements of citizenship.

One such requirement is that the applicant have five years of good moral character.  By law, if a person has a criminal conviction for a crime involving moral turpitude (such as thefts, fraud and crimes of violence) in the five years preceding the naturalization application, then the applicant will not qualify for having five years of good moral character, and thus will not qualify for citizenship.

But, does that necessarily mean that every conviction for a crime involving moral turpitude in the past five years is the death knell for a citizenship application?  Not necessarily.  There is case law that says that when a person's conviction qualifies for the petty offense exception, then that person is not automatically disqualified for citizenship.

The petty offense exception holds that where the maximum possible sentence for a crime is one year in jail, and where the actual sentence is less than six months, then even if the conviction is for a crime involving moral turpitude, the applicant can still be considered for citizenship.

First, that means that if a permanent resident is charged with a crime involving moral turpitude, one of the goals of the criminal representation should be to reduce the charge to a misdemeanor, and seek an actual jail sentence of less than six months.  For example, if a person were charged with larceny in Virginia, which is a felony, a possible strategy for the criminal defense attorney could be to negotiate a plea for petty larceny, which is a misdemeanor with a maximum possible sentence of one year, and seek less than six months in jail time.  The defense attorney would need to keep in mind that the whole sentence is considered, even if most of it is suspended.  Thus, if a person receives a sentence of 360 days, with 330 suspended, he would not qualify for the petty offense exception.  But, if that same person receives a sentence of 175 days, with 145 suspended, then, even though the actual time spent in jail is the same, he would qualify for the petty offense exception.

Nonetheless, the conventional wisdom among immigration attorneys has been that even if the conviction qualifies for the petty offense exception, and thus does not automatically disqualify a person from having good moral character, the conviction can still be used by an adjudicator in weighing discretionary factors.  Our advice has typically been to wait until five years after the conviction to apply for citizenship.

While past cases cannot predict future results, I have had some success in naturalization applications even when there has been a criminal conviction in the past five years.  When faced with a client who has gone forward with a naturalization application despite the criminal conviction, the first step is to make sure that the conviction qualifies for the petty offense exception.  Under the Supreme Court case of Padilla v. Kentucky, there is some avenue for an applicant to correct mistakes made by well-intentioned criminal defense attorneys who just did not understand immigration law.  If the applicant is in a situation where the full jail sentence was for greater than six months, but most of it was suspended, it could be possible to go back and re-open the case to ask the court to reduce the full jail sentence to less than six months.  To do this, first the conviction must be less than two years old.  Then you have to work hard to convince the Commonwealth's Attorney and the Judge to go ahead with the plan.  This is not always an easy task.

Once you are sure that the conviction qualifies for the petty offense exception, the next step is to build a record of good moral character.  The applicant will need to show that the sentence was served, that all court costs were paid, that any restitution was paid, that any probation time was served, and that any required community service took place.  To be safe, the applicant should do more than this.  Affidavits and letters from friends, family, pastors, employers and community leaders, attesting to the applicant's good moral character will go a long way to convince the adjudicator that despite the mistake that led to the conviction, this is a person deserving of citizenship.

It must be emphasized that this course of action does not guarantee success.  If you have an adjudicator who believes that the conviction itself, even though it is a petty offense, is sufficient in weighing the discretionary factors to deny citizenship, then you will be out of luck.  There is an appeals process.  But, it is extremely difficult, if not next to impossible, to overturn a discretionary call like that.

Citizenship applications should not be treated as simple, run of the mill proceedings.  An applicant would be well-advised to consider how USCIS will analyze the application.  It will likely make sense to consult an attorney first, and go over everything, from conviction records to how the applicant became a permanent resident in the first place, to make sure that the application will go smoothly.

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

President to Press for Immigration Reform Early in the Next Congress

According to the Los Angeles Times, President Obama is preparing to press for comprehensive immigration early in the next Congress.  The plan calls for an all-out blitz as soon as talks over the country's fiscal problems dies down.  Reportedly, the campaign to press for immigration reform will focus on convincing Americans that reform will provide benefits in such areas as education, health care, business and safety.

The exact details of the President's proposal are still evolving.  Reportedly, the proposal will include a pathway to citizenship for those undocumented aliens already present in the United States, increased border security, increased penalties for employers who hire aliens unauthorized to work in the United States, and increased opportunities to hire foreign workers.

According to the Times, some Democrats believe that there is a narrow window to press for reform.  The closer it gets to the next congressional elections, the more likely members of Congress will be reluctant to vote in favor of a bill that has political risks.

Republicans, however, appear to be in favor of slower approach, tackling one issue at a time before addressing whether there should be a pathway to citizenship.  Florida Senator Marco Rubio has stated, "Portions of immigration reform can be dealt with quicker than others."  Congress, for example, could first approach expanding opportunities for science and technology workers and addressing undocumented aliens who were brought here as children before the more controversial subjects.

Recently, however, a bill to expand the number of visas available to science, technology, engineering and math (STEM) workers stalled in the Senate after being passed by the House.  The fight over the bill highlighted a key difference of opinions between Republicans and Democrats over the shape of reform.  Specifically, Republicans appear to believe that in order for there to be more visas available for STEM workers, over visa categories have to be eliminated.  Democrats, by contrast, do not view reform as a zero-sum game, seeing no need to eliminate some visas in order to expand the availability of others.

One key concern for Republicans is whether they would be sacrificing their political future by supporting immigration reform now.  Specifically, conservatives, such as Rush Limbaugh, have argued that if Republicans support a pathway to citizenship, they would simply be expanding the number of Democratic voters in the future.  This is a fear that can be seen by careful analysis of the Achieve Act currently pending  in the Senate.

The Achieve Act, sponsored by Republicans Kaye Bailey Hutchison, John Kyl and John McCain, is the Republicans' response to the DREAM Act.  It would create a way for some undocumented aliens brought to this country as children to have legal status.  However, the bill would create a non-immigrant visa for such aliens, which would not itself lead to citizenship.  Thus, beneficiaries under the Achieve Act would not automatically be on the path to obtain the right to vote.

While this appears to be the most positive atmosphere for immigration reform since President Bush attempted to press for a guest worker program, the battle will not be easy.  Competing interests will need to be addressed, and in some instances overcome, if the press for immigration reform is to be successful.

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

Do I Need a Lawyer to Apply for Citizenship?

While attending a class with other immigration lawyers, I heard a presenter express her experience that USCIS is reviewing the basis of a person's permanent residency in many more cases when that person has applied for citizenship.  Indeed, I have personally come across a number of people who found themselves in trouble after submitting a naturalization application because USCIS had uncovered some problem with their permanent residency.  Indeed, other immigration lawyers stated that the situation had gotten to a point that when a person comes to them for assistance in filing a naturalization application, the lawyers are now going in depth in questioning the potential client on how they became a permanent resident.

When a person submits a naturalization petition, USCIS does not simply adjudicate whether that person should become a citizen.  Quite the contrary, USCIS sees this a its last opportunity to look into the background of the applicant, and be sure that everything in the applicant's background is in order.  This means that the adjudicator routinely reviews the applicant's basis for applying for permanent residency in the first place, to ensure that the applicant was granted permanent residency properly.

While it may no seem fair, if, during the naturalization application process, the adjudicator finds something was wrong with the way that the green card was issued, he or she can recommend that the green card be revoked.

For example, if an adult child of a permanent resident was granted an immigrant visa, he or she must remain unmarried until being admitted to the United States as a permanent resident.  If that person were to get married at some point after the U.S. consulate issued the visa, but before actually entering the United States, then that person would have been unqualified to have been admitted as a permanent resident.  When applying for naturalization, that person will be required to disclose the details of all marriages.  A thorough adjudicator could notice that the date of marriage preceded the date of admission, conclude that at the point of admission the person did not qualify for the green card, and then recommend that the green card be revoked.

Similarly, there is a requirement that an applicant for citizenship show five years of good moral character.  Applicants should be aware that the FBI will be conducting a background check on them.  That means that any convictions will likely be brought to the Government's attention if a naturalization application is filed.

The bottom line is that sometimes it may be the better course simply not to apply for citizenship.  But, in order to know that, a person would likely need to consult with a knowledgeable immigration lawyer.  Thus, while the application process would appear simple, consulting with a lawyer beforehand can avoid some disastrous consequences.

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

Video Blog: USCIS Field Office in Fairfax for a Marriage Visa Interview

I was at the Fairfax Field Office of USCIS this morning to attend a marriage visa interview.

Immigration Law Provides Opportunities to Bring Foreign-Born Relatives to the United States

U.S. citizens and lawful permanent residents can petition for visas to bring certain foreign-born relatives to live in the United States.  How fast the process works depends on whether the petitioner is a citizen and which relative is involved.

Spouses, minor children, and in some cases parents of U.S. citizens are defined as "immediate relatives."  The process for immediate relatives tends to be much quicker than other relatives.  Immediate relatives, for example, do not have to wait for a visa number to become available to immigrate.  Immediate relatives also have more liberal rules to allow them to adjust to status if they are present in the Untied States after being inspected and admitted.

Adult children and siblings of U.S. citizens, and spouses and children of permanent residents can also immigrate. But, the numbers are limited by Congress to 400,000 per year.  This is called the preference system.  Visas become available based on the date that the visa petition is filed.  For some countries, it is not unusual to have to wait years for a visa to become available.  In most cases, these relatives must process their visa applications at their local U.S. Consulate before being admitted as a permanent resident.

For more information on the availability of family-based visas, and the process, please click here to see my article.

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