Here’s full text of 2013 Senate proposal for comprehensive immigration reform – Border Security, Economic Opportunity & Immigration Modernization Act of 2013
In my prior legal job, I represented insurance companies. My job was to find the weaknesses in injured people’s cases and figure out ways to minimize the exposure to the insurance company. I did my job very well. The day that I decided to quit that area of the law was the day that I had to cross-examine a mother about the tragic death of her son, who had been runover in a speedboat collision. Not a fun task.
Practicing immigration law has allowed me to represent individuals and to stand up for their rights. No longer is my goal to minimize the amount of money that an insurance company has to let go. Now my goal is to protect my clients’ ability to live, work and remain in the U.S. In insurance cases, most cases settle. In immigration, it is much closer to a zero sum game – you either win or you lose. Your client receives the visa, or she does not. Your client gets to stay in the U.S., or he gets deported. Not a lot of gray area.
The other nice aspect of representing individuals in immigration is the great stories you get to hear about people’s exciting lives. Many people experience tremendous hardships in coming to the U.S. and work very hard to make a successful life here. In my humble opinion, the vast majority of immigrants – both those “legal” and “illegal” – want the same things as everyone else – safety, warmth, food, a nice life. Helping them get there is a great reward for me.
This morning, I spent some time with a mom and dad and their adopted son. The son came from Central America several years ago and had great difficulty in getting his naturalization certificate. He was eligible to become a citizen because his adopting mother was a U.S. citizen. But due to some bureaucratic snafus at USCIS, his application for a naturalization certificate had been denied. When we got involved, the application had been denied and the time to appeal had expired. We gathered additional documentation in support of the case and asked USCIS to reopen. Surprisingly, they agreed and, with very little fanfare, scheduled the boy for this morning’s ceremony.
Nothing beats standing next to the happy parents, the naturalizing boy and a bunch of new citizens, reciting the pledge of allegiance together. Knowing that I helped, in a very small way, to bring that about means a whole lot more than the fee that our office earned on the case.
The U.S. Citizenship and Immigration Service (“USCIS”) recently changed the rules regarding the filing of provisional unlawful presence waivers. USCIS now allows some immediate relatives of U.S. citizens (spouses, children under 21 years of age and parents of U.S. citizen children over 21 years) who entered the country without inspection, or who might otherwise be ineligible to adjust their status in the U.S. due to unlawful presence, to file for a waiver of inadmissiblity before leaving the U.S. to have their immigrant visa decided overseas at an embassy.
Under the prior rules, if an alien had accrued a certain number of days of unlawful presence, but they still had an approved I-130 family relative petition, they still had to leave the U.S. to apply for a green card overseas at a U.S. consulate or embassy. The departure triggered a three year ban if the unlawful status was more than 180 days and less than 1 year. If the period of unlawful status was for more than a year, the ban on re-entry to the U.S. was ten years.
As an example, let’s say that Pierre from Paris, France, had been in the U.S. for over one year in unlawful status because he entered the country without inspection. But Pierre had later married a U.S. citizen. Pierre’s wife could file and obtain a spouse visa; however, under the old rule, Pierre would have to return to Paris, file for the waiver and to adjust status at the U.S. embassy in Paris. He would also have to file a waiver and wait for the waiver to be adjudicated at the embassy and while he stayed in Paris. This would lead to long periods of separation while the waiver was ruled upon.
The new rule allows immediate relatives of U.S. citizens to seek a waiver of unlawful presence through USCIS while in the U.S. and to obtain approval of that waiver before leaving the U.S. and traveling abroad. The goal with this change is to lessen the length of separation between family members. The law does have limitations in that it only applies to eligible spouses and children of U.S. citizens, as well as parents of U.S. citizens under certain conditions. Foreign nationals with other grounds of inadmissiblity still must follow the regular waiver procedures. Waiver applicants are required to demonstrate that refusing to grant lawful status would cause “extreme hardship” to the U.S. citizen spouse or parent. For parents of U.S. citizens applying for the waiver, the parent needs to have another qualifying relative that can support the extreme hardship requirement.
I had an early morning flight from St. Louis to Chicago today. Got to the airport super early to make sure that I made it through security in plenty of time for my 6:00 am flight.
The purpose of my flight was to attend a deportation master calendar hearing at the Chicago immigration court, which is known more formally as the Executive Office for Immigration Review. The court is located downtown and with the quick 45 minute flight to Midway, a 20 minute ride on the orange line on the El and a short 1/4 mile walk to the court, it is actually extremely easy to get to court on time.
As I made my way through the airport, I noticed a family get delayed by a TSA official because they were bringing too many liquids on their flight and their bags were in gallon see through bags instead of quart see through bags. He was holding up and inspecting the liquids. The mom asked where she could get the right bags. The TSA officer looked at her blankly and said “at home?” Smartass.
The TSA official huffed and puffed but then let them through because one family member had no liquids and in his mind, this balanced things back out.
Now I have brought plenty of liquids in gallon bags through TSA screening in the years since 9/11 and I’ve never had a problem. I’m sure this particular officer had let people go through before and will probably let them go through in the future.
But in thinking about this brief exchange and as I was making my way to immigration court, I thought it demonstrated some points that I try to emphasize to my immigration clients regarding what they can expect from the immigration officials that they may encounter.
- Don’t give the government a reason to tell you “NO.” Our job as immigration attorneys is to eliminate – to the extent possible – all the reasons that USCIS or an immigration judge might decline to approve a case. Obviously, this is a small point when you are talking about moving through airport security. But the principle is the same. Small things can slow down or tarnish a case. To the extent that you can minimize these things, that is a good idea.
- Just because another officer let you or someone else through does not mean the same thing will happen in your case. Many people – me included – have gone through security with liquids in a similar condition. But on this particular day with this particular agent with this particular family, it didn’t fly (no pun intended). We frequently have clients who tell us “oh, I heard about this guy on the internet in Philly who had the same situation and he got approved?” Aside from the fact that you can’t believe all of the immigration stories that you read on the internet, its important to keep in mind that you never know all of the circumstances that go into another decision made by an immigration officer. No two cases are the same and just because a case got approved one time does not mean that similar cases will be approved.
- Different officers have different things that they look for. With this particular St. Louis TSA agent, he was on the lookout for bulky liquid containers. It is important to keep in mind that other officers probably do not have similar hangups or concerns. They might have different things they look for – like metal in a briefcase or laptops that have not been fully removed from their cases. We see this in immigration as well. Different immigration officers have different things that seem to always come up in their interviews. For instance, in St. Louis, there is one immigration officer who always wants to know about driver’s licenses and he really wants the addresses to be correct on the license. Another officer likes to look at wedding and engagement photos. This is one reason why it might be a good idea to work with an experienced immigration attorney as we know the kinds of things that these officers look for.
- Sometimes, the officer is just having a bad day. Like the family in front of me, the lesson here is to just keep your cool. Sometimes, they just want to vent but then give you the answer that you want. This is true in both immigration and with the TSA.
We talk to our clients a lot about the phrase “arbitrary and capricious.” This is a phrase used to describe certain government decisions – that they sometimes are made without clear basis in fact or because of a particular agent’s concerns. One case might get approved with one officer but if you took the exact same case to another officer, the case would be denied. So when it comes to immigration, feel free to contact us to discuss ways that you can help eliminate the reasons for the government to say no. As for the TSA, we really can’t help you with that !
Months ago at the start of the debate over immigration, lawmakers told the media that the difficult part of passing the immigration bill will be the inclusion of a path to citizenship. Today both parties have hit a deadlock as Democrats refuse a bill without citizenship and Republicans refuse a bill with a path to citizenship.
Lawmakers taking their positions
Most recently, House Minority Leader Nancy Pelosi sent a letter to Speaker of the House John Boehner warning him that Democrats will not accept any sort of piecemeal approach with an omitted path to citizenship. Sen. Chuck Schumer stated “Without a path to citizenship, there is not going to be a bill.” Some Republicans who still want the bill to pass believe there is a way to include a path to citizenship as long as it has strict requirements that may be time consuming and difficult for immigrants to reach. But despite the struggle for political power that both parties are having, for most immigrants, they just want some way to attain legal status and not have to worry about being deported.
A disconnect in communication
The argument about a path to citizenship is a sticking point for lawmakers, but for unauthorized immigrants, they simply want legal status. The ability to live and work in the U.S. could conceivably be attained without being a citizen. Although the younger generation of immigrants are more active and want to be a part of elections, most immigrants are not too concerned about their voting rights when they have to live in the shadows and hope they do not get deported. If they have the ability to work legally and gather money to support their families, most will not want to pay expensive fees and jump through hoops for years to attain citizenship. The solution to the immigration problem may be solved quicker if Congress focused less on a path to citizenship and more on a way to attain legal status. A new immigration bill may end up failing over a path to citizenship that many immigrants could do without.
This is not to say that eliminating the opportunity of becoming a citizen is the best option for lawmakers, but more progress could be made with the bill if both parties could move past arguing which version of the legislation they should pass and focus more on the needs of 11 million undocumented immigrants waiting for any sort of permit that will allow them to work in the U.S.
If you have questions regarding the new immigration reform, applying for a visa or the changing immigration laws, contact us at 314-961-8200 or visit our contact page.
USCIS recently informed members of AILA (American Immigration Lawyers Association) that the agency had issued approximately 2,500 conditional lawful permanent resident cards. The agency is requesting that people who received the erroneous cards to return them to USCIS for a new card with the correct expiration date.
A few notes:
- Returning the card does not affect or cancel the alien’s lawful status;
- While the alien awaits the replacement lawful permanent resident card, the agency will provide a temporary I-551 stamp in the person’s passport;
- There is no fee for the replacement green card; and,
- The alien does NOT have to file a Form I-90, Application to Replace Permanent Resident Card in order to receive the replacement card.
The agency allowed aliens to return their green card either by mail or at an application support center (ASC) in their area.
This month, hear the amazing tale of my Adventure to the Center of the Earth.
We also discuss how the Supreme Court’s recent decision striking down the Defense of Marriage Act has changed the game for same sex couples seeking spouse visas.
We highlight a new report from the ACLU which suggests that the FBI has been granted secret authority to delay or thwart immigration applications from Muslims (we’ve been suspecting this for years).
We also profile our very own Adela Muheljic, firm administrator and Immigrant Hero.
Finally, we take a detour from immigration land to ask – do you have enough underinsured motorist coverage? (HINT: you probably don’t).
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A non-U.S. citizen facing the possible conviction of a domestic-related criminal charge needs to consider the fact that domestic violence convictions can trigger the start of “removal” or deportation proceedings. In removal proceedings, the U.S. government argues that a non-citizen needs to be ordered to leave the U.S. This can happen even if you are a lawful permanent resident or have a “green card.”
What is considered by the U.S. government a conviction for domestic violence?
- A “crime of violence” charged against a person:
- where the victim is a current or former spouse,
- where victim and accused share a child in common,
- where the accused and the victim were cohabitated or cohabitated as spouses,
- where the victim is similarly situated to a spouse,
- Under family violence laws of the jurisdiction where the offense occurs, or
- or any other person who is protected under domestic or family violence laws of the U.S. or any State, Indian tribal government, or unit of local government.
- Violation of a protective order (including temporary or final orders)
- Crime of stalking;
- Crime of Child abuse, neglect or abandonment
A “crime of violence” is one in which the crime involves the use, attempted use, or threatened use of physical force against a person or property. The second type of “crime of violence” is a felony that by its nature involves the risk of physical force.
For purposes of immigration law, it does not matter if your conviction was only a misdemeanor or that that you received a particular minimum sentence. The definition of what is a conviction for immigration law is different than what is a conviction for criminal purposes. It does matter if your conviction is from before September 30, 1996 because that it was when the law changed.
There are certain defenses in immigration court if you have been convicted of a domestic violence related charge and there are certain pleas that can mitigate any damage done to your immigration status.
Section 203(c) of the Immigration & Nationality Act provides for immigrants from historically underrepresented countries to apply for a green card through a system known as the diversity visa lottery. The DV lottery was put in place to increase diversity in the number of people allowed to come to the U.S. as immigrants each year.
Each year, people seeking the opportunity to come to the U.S. apply through the State Department in the hopes of obtaining the coveted visa. For 2015, nationals from the following countries are ineligible for the DV lottery:
Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.
Diversity visas are distributed among 6 geographic regions. No one country can receive more than 7 percent of the diversity visas each year. DV applicants have to have a high school education or its equivalent OR two years of work in a job that requires two years of training.
Applications for 2015 were due by Nov. 2, 2013. Applications for the following year will be accepted starting early October of 2014. Applications are filed electronically here:
One last note, there are many DV lottery scams so you should be careful when navigating the DV lottery process.
On February 5, 2014, new Secretary of Homeland Security Jeh Johnson issued a revised determination on how DHS would interpret the material bar statute. For years, DHS has taken the position that any association with any group on the terrorist list was a permanent bar from any immigration benefit. This prevented many otherwise qualified individuals who came to the U.S. as refugees or asylum seekers or in some other immigration category from every obtaining lawful permanent resident status.
Our office handled several cases for people who should have received a green card. But because they simply had been a member of a group that their home country required them to be in or a group that had formerly been an ally of the U.S., they were barred from any immigration benefit.
Under yesterday’s change in the regulations, if an alien seeks an immigration benefit, has undergone and passed allrelevant background and security checks and has fully disclosed the nature of any “material support” to the organization in question, they may now be eligible for the immigration benefit requested.
The regulation calls on the investigating officer to determine whether (1) the support was “insignificant”?, (2) the alien was attempting to further the terrorist activities of the organization, (3) the alien has provided material support that he/she knew or should have known would have furthered terrorist or violent activity; and (4) the support was given to someone the alien knew would advance terrorist gains. If the alien meets this standard and can show “in the totality of the circumstances” that they deserve a waiver of the inadmissiblity standard, then they may be able to adjust status.
This is a big deal for people who have been waiting for a long time for lawful permanent resident status. It will be interesting to see how the regulations are implemented.