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
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Wednesday, September 12, 2012
Monday, September 10, 2012
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
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
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/
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/
Friday, September 7, 2012
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.
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.
Monday, September 3, 2012
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.
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.
Saturday, September 1, 2012
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.
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.
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