US Immigration News & Commentary

http://www.senate.gov/isvp/?comm=judiciary&type=live&filename=judiciary050913

Some good, some bad. All of it subject to change. It’s Washington of course.

Tons of wasted money on border security and “triggers” (they seem toothless though).

The bill would eliminate the diversity visa. The underlying intent here is likely to stem the flow of African immigrants to the US. Guessing many in DC want to preserve the racial status quo as long as possible and diversity isn’t well regarded on the right.

The elimination of the 4th preference category. So no USC petitions for siblings. It was a long path anyway and perhaps the new paths will be shorter in any event.

The bill would create the “Registered Provisional Immigrant Status”. This would benefit those here unlawfully but also people deported for being out of status if they have qualifying relatives.

An individual would be ineligible if they were convicted of various offenses (including 3 misdemeanors), as well as someone who voted unlawfully.

Derivative petitions will be allowed for spouses and children who are in the US.

Individuals with a removal order and those in proceedings will also be allowed to apply.

This status lasts for 10 years and then the individual may adjust to a permanent resident using the new “merit” based immigration process.

5 years after enactment the US will switch over to a merit based system that “awards points to individuals based on their education, employment, length of residence in the US and other considerations.”

There is more and we’ll have to wait for the details on a lot of this…

Find the full outline below.

Download (PDF, 268KB)

It’s not great but it’s a start. A group of 8 senators has cobbled together a mish-mosh of immigration plans. Think of a mashup of the Dream Act, the Achieve Act, a guestworker plan, and then everyone else and you’ll see where this is headed.

Probably the two dumbest parts of the proposal are:

1) A commission that must determine when the borders are “secure” before the green card process for those here unlawfully and not part of the Dream Act or “unskilled/temp” worker pool can begin. Before that point people are basically here with permission but no great status.

2) The “back of the line” provision: The “line” starts way back at 1989. So AFTER the commission determines that the border is secure everyone else waits behind 4th preference petitions from the Philippines.

These two things really create an unworkable plan. It’s clearly not well thought out and seems unlikely to pass anyway.

Here is the complete text of the framework of the proposal:

Bipartisan Framework for Comprehensive Immigration Reform
Senators Schumer, McCain, Durbin, Graham, Menendez, Rubio, Bennet, and Flake
Introduction
We recognize that our immigration system is broken. And while border security has improved
significantly over the last two Administrations, we still don’t have a functioning immigration
system. This has created a situation where up to 11 million undocumented immigrants are living
in the shadows. Our legislation acknowledges these realities by finally committing the resources
needed to secure the border, modernize and streamline our current legal immigration system,
while creating a tough but fair legalization program for individuals who are currently here. We
will ensure that this is a successful permanent reform to our immigration system that will not
need to be revisited.
Four Basic Legislative Pillars:
o Create a tough but fair path to citizenship for unauthorized immigrants currently
living in the United States that is contingent upon securing our borders and
tracking whether legal immigrants have left the country when required;
o Reform our legal immigration system to better recognize the importance of
characteristics that will help build the American economy and strengthen
American families;
o Create an effective employment verification system that will prevent identity theft
and end the hiring of future unauthorized workers; and,
I.

Establish an improved process for admitting future workers to serve our nation’s
workforce needs, while simultaneously protecting all workers.
Creating a Path to Citizenship for Unauthorized Immigrants Already Here
that is Contingent Upon Securing the Border and Combating Visa Overstays

Our legislation will provide a tough, fair, and practical roadmap to address the status of
unauthorized immigrants in the United States that is contingent upon our success in securing
our borders and addressing visa overstays.

To fulfill the basic governmental function of securing our borders, we will continue the
increased efforts of the Border Patrol by providing them with the latest technology,
infrastructure, and personnel needed to prevent, detect, and apprehend every unauthorized
entrant.

Additionally, our legislation will increase the number of unmanned aerial vehicles and
surveillance equipment, improve radio interoperability and increase the number of agents at
and between ports of entry. The purpose is to substantially lower the number of successful
illegal border crossings while continuing to facilitate commerce.

We will strengthen prohibitions against racial profiling and inappropriate use of force,
enhance the training of border patrol agents, increase oversight, and create a mechanism to
ensure a meaningful opportunity for border communities to share input, including critiques.

Our legislation will require the completion of an entry-exit system that tracks whether all
persons entering the United States on temporary visas via airports and seaports have left the
country as required by law.

We recognize that Americans living along the Southwest border are key to recognizing and
understanding when the border is truly secure. Our legislation will create a commission
comprised of governors, attorneys general, and community leaders living along the
Southwest border to monitor the progress of securing our border and to make a
recommendation regarding when the bill’s security measures outlined in the legislation are
completed.

While these security measures are being put into place, we will simultaneously require those
who came or remained in the United States without our permission to register with the
government. This will include passing a background check and settling their debt to society
by paying a fine and back taxes, in order to earn probationary legal status, which will allow
them to live and work legally in the United States. Individuals with a serious criminal
background or others who pose a threat to our national security will be ineligible for legal
status and subject to deportation. Illegal immigrants who have committed serious crimes
face immediate deportation.

We will demonstrate our commitment to securing our borders and combating visa overstays
by requiring our proposed enforcement measures be complete before any immigrant on
probationary status can earn a green card

Current restrictions preventing non-immigrants from accessing federal public benefits will
also apply to lawful probationary immigrants.

?

Once the enforcement measures have been completed, individuals with probationary legal
status will be required to go to the back of the line of prospective immigrants, pass an
additional background check, pay taxes, learn English and civics, demonstrate a history of
work in the United States, and current employment, among other requirements, in order to
earn the opportunity to apply for lawful permanent residency. Those individuals who
successfully complete these requirements can eventually earn a green card.

Individuals who are present without lawful status – not including people within the two
categories identified below – will only receive a green card after every individual who is
already waiting in line for a green card, at the time this legislation is enacted, has received
their green card. Our purpose is to ensure that no one who has violated America’s
immigration laws will receive preferential treatment as they relate to those individuals who
have complied with the law.

Our legislation also recognizes that the circumstances and the conduct of people without
lawful status are not the same, and cannot be addressed identically.
o For instance, individuals who entered the United States as minor children did not
knowingly choose to violate any immigration laws. Consequently, under our
proposal these individuals will not face the same requirements as other
individuals in order to earn a path to citizenship.
o Similarly, individuals who have been working without legal status in the United
States agricultural industry have been performing very important and difficult
work to maintain America’s food supply while earning subsistence wages. Due
to the utmost importance in our nation maintaining the safety of its food supply,
agricultural workers who commit to the long term stability of our nation’s
agricultural industries will be treated differently than the rest of the
undocumented population because of the role they play in ensuring that
Americans have safe and secure agricultural products to sell and consume. These
individuals will earn a path to citizenship through a different process under our
new agricultural worker program.
II.

Improving our Legal Immigration System and Attracting the World’s Best
and Brightest

The development of a rational legal immigration system is essential to ensuring America’s
future economic prosperity. Our failure to act is perpetuating a broken system which sadly
discourages the world’s best and brightest citizens from coming to the United States and
remaining in our country to contribute to our economy. This failure makes a legal path to
entry in the United States insurmountably difficult for well-meaning immigrants. This
unarguably discourages innovation and economic growth. It has also created substantial visa
backlogs which force families to live apart, which incentivizes illegal immigration.

Our new immigration system must be more focused on recognizing the important
characteristics which will help build the American economy and strengthen American
families. Additionally, we must reduce backlogs in the family and employment visa
categories so that future immigrants view our future legal immigration system as the
exclusive means for entry into the United States.

The United States must do a better job of attracting and keeping the world’s best and
brightest. As such, our immigration proposal will award a green card to immigrants who
have received a PhD or Master’s degree in science, technology, engineering, or math from an
American university. It makes no sense to educate the world’s future innovators and
entrepreneurs only to ultimately force them to leave our country at the moment they are most
able to contribute to our economy.

III.

Strong Employment Verification

We recognize that undocumented immigrants come to the United States almost exclusively
for jobs. As such, dramatically reducing future illegal immigration can only be achieved by
developing a tough, fair, effective and mandatory employment verification system. An
employment verification system must hold employers accountable for knowingly hiring
undocumented workers and make it more difficult for unauthorized immigrants to falsify
documents to obtain employment. Employers who knowingly hire unauthorized workers
must face stiff fines and criminal penalties for egregious offenses.

We believe the federal government must provide U.S. employers with a fast and reliable
method to confirm whether new hires are legally authorized to work in the United States.
This is essential to ensure the effective enforcement of immigration laws.

Our proposal will create an effective employment verification system which prevents identity
theft and ends the hiring of future unauthorized workers. We believe requiring prospective
workers to demonstrate both legal status and identity, through non-forgeable electronic
means prior to obtaining employment, is essential to an employee verification system; and,

The employee verification system in our proposal will be crafted with procedural safeguards
to protect American workers, prevent identity theft, and provide due process protections.

IV.

Admitting New Workers and Protecting Workers’ Rights

The overwhelming majority of the 327,000 illegal entrants apprehended by CBP in FY2011
were seeking employment in the United States. We recognize that to prevent future waves of
illegal immigration a humane and effective system needs to be created for these immigrant
workers to enter the country and find employment without seeking the aid of human
traffickers or drug cartels.

Our proposal will provide businesses with the ability to hire lower-skilled workers in a timely
manner when Americans are unavailable or unwilling to fill those jobs.

Our legislation would:
o Allow employers to hire immigrants if it can be demonstrated that they were
unsuccessful in recruiting an American to fill an open position and the hiring of
an immigrant will not displace American workers;
o Create a workable program to meet the needs of America’s agricultural industry,
including dairy to find agricultural workers when American workers are not
available to fill open positions;
o Allow more lower-skilled immigrants to come here when our economy is creating
jobs, and fewer when our economy is not creating jobs;

o Protect workers by ensuring strong labor protections; and,

Permit workers who have succeeded in the workplace and contributed to their
communities over many years to earn green cards.

The USCIS has updated their DACA FAQ:

Here are the new ones –

New – Q1: What is deferred action?
A1: Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. For purposes of future inadmissibility based upon unlawful presence, an individual whose case has been deferred is not considered to be unlawfully present during the period in which deferred action is in effect. An individual who has received deferred action is authorized by the Department of Homeland Security (DHS) to be present in the United States, and is therefore considered by DHS to be lawfully present during the period deferred action is in effect. However, deferred action does not confer lawful status upon an individual, nor does it excuse any previous or subsequent periods of unlawful presence.

Under existing regulations, an individual whose case has been deferred is eligible to receive employment authorization for the period of deferred action, provided he or she can demonstrate “an economic necessity for employment.” DHS can terminate or renew deferred action at any time, at the agency’s discretion.

New – Q5: Do I accrue unlawful presence if I have a pending request for consideration of deferred action for childhood arrivals?
A5: You will continue to accrue unlawful presence while the request for consideration of deferred action for childhood arrivals is pending, unless you are under 18 years of age at the time of the request. If you are under 18 years of age at the time you submit your request, you will not accrue unlawful presence while the request is pending, even if you turn 18 while your request is pending with USCIS. If action on your case is deferred, you will not accrue unlawful presence during the period of deferred action. However, having action deferred on your case will not excuse previously accrued unlawful presence.

New – Q6: If my case is deferred, am I in lawful status for the period of deferral?
A6: No. Although action on your case has been deferred and you do not accrue unlawful presence (for admissibility purposes) during the period of deferred action, deferred action does not confer any lawful status.

The fact that you are not accruing unlawful presence does not change whether you are in lawful status while you remain in the United States. However, although deferred action does not confer a lawful immigration status, your period of stay is authorized by the Department of Homeland Security while your deferred action is in effect and, for admissibility purposes, you are considered to be lawfully present in the United States during that time.

Apart from the immigration laws, “lawful presence”, “lawful status” and similar terms are used in various other federal and state laws. For information on how those laws affect individuals who receive a favorable exercise of prosecutorial discretion under DACA, please contact the appropriate federal, state or local authorities.

New – Q7: Is there any difference between “deferred action” and “deferred action for childhood arrivals” under this process?
A7: Deferred action for childhood arrivals is one form of deferred action. The relief an individual receives pursuant to the deferred action for childhood arrivals process is identical for immigration purposes to the relief obtained by any person who receives deferred action as an act of prosecutorial discretion.

New – Q1: Do brief departures from the United States interrupt the continuous residence requirement?
A1: A brief, casual and innocent absence from the United States will not interrupt your continuous residence. If you were absent from the United States, your absence will be considered brief, casual and innocent if it was on or after June 15, 2007, and before Aug. 15, 2012, and:

The absence was short and reasonably calculated to accomplish the purpose for the absence;
The absence was not because of an order of exclusion, deportation or removal;
The absence was not because of an order of voluntary departure, or an administrative grant of voluntary departure before you were placed in exclusion, deportation or removal proceedings; and
The purpose of the absence and/or your actions while outside the United States were not contrary to law.
New – Q2: May I travel outside of the United States before USCIS has determined whether to defer action in my case?
A2: No. After Aug. 15, 2012, if you travel outside of the United States before USCIS has determined whether to defer action in your case, you will not be considered for deferred action under this process. If USCIS defers action in your case, you will be permitted to travel outside of the United States only if you apply for and receive advance parole from USCIS.

Any travel outside of the United States that occurred on or after June 15, 2007, but before Aug. 15, 2012, will be assessed by USCIS to determine whether the travel qualifies as brief, casual and innocent. (See below.)

You should be aware that if you have been ordered deported or removed, and you then leave the United States, your departure will likely result in your being considered deported or removed, with potentially serious future immigration consequences.

Home > Humanitarian > Consideration of Deferred Action for Childhood Arrivals Process > Frequently Asked Questions
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Frequently Asked Questions

FAQs updated January 18, 2013

Over the past three years, this Administration has undertaken an unprecedented effort to transform the immigration enforcement system into one that focuses on public safety, border security and the integrity of the immigration system. As the Department of Homeland Security (DHS) continues to focus its enforcement resources on the removal of individuals who pose a danger to national security or a risk to public safety, including individuals convicted of crimes with particular emphasis on violent criminals, felons, and repeat offenders, DHS will exercise prosecutorial discretion as appropriate to ensure that enforcement resources are not expended on low priority cases, such as individuals who came to the United States as children and meet other key guidelines. Individuals who demonstrate that they meet the guidelines below may request consideration of deferred action for childhood arrivals for a period of two years, subject to renewal, and may be eligible for employment authorization.

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

Were under the age of 31 as of June 15, 2012;
Came to the United States before reaching your 16th birthday;
Have continuously resided in the United States since June 15, 2007, up to the present time;
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;
Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
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
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.
Individuals can call USCIS at 1-800-375-5283 with questions or to request more information on the deferred action for childhood arrivals process or visit www.uscis.gov.
View the Consideration of Deferred Action for Childhood Arrivals Process Video

About Deferred Action for Childhood Arrivals
Guidelines for Requesting Consideration of Deferred Action For Childhood Arrivals
* Education
* Travel
* National Security and Public Safety
Miscellaneous
Filing Process
Evidence
Decisions and Renewals
Cases in Other Immigration Processes
Avoiding Scams and Preventing Fraud

About Deferred Action for Childhood Arrivals
New – Q1: What is deferred action?
A1: Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. For purposes of future inadmissibility based upon unlawful presence, an individual whose case has been deferred is not considered to be unlawfully present during the period in which deferred action is in effect. An individual who has received deferred action is authorized by the Department of Homeland Security (DHS) to be present in the United States, and is therefore considered by DHS to be lawfully present during the period deferred action is in effect. However, deferred action does not confer lawful status upon an individual, nor does it excuse any previous or subsequent periods of unlawful presence.

Under existing regulations, an individual whose case has been deferred is eligible to receive employment authorization for the period of deferred action, provided he or she can demonstrate “an economic necessity for employment.” DHS can terminate or renew deferred action at any time, at the agency’s discretion.

Q2: What is deferred action for childhood arrivals (DACA)?
A2: On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several key guidelines may request consideration of deferred action for a period of two years, subject to renewal, and would then be eligible for work authorization.

Individuals who can demonstrate through verifiable documentation that they meet these guidelines will be considered for deferred action. Determinations will be made on a case-by-case basis under the guidelines set forth in the Secretary of Homeland Security’s memorandum.

Q3: If my removal is deferred pursuant to the consideration of deferred action for childhood arrivals process, am I eligible for employment authorization?
A3: Yes. Pursuant to existing regulations, if your case is deferred, you may obtain employment authorization from USCIS provided you can demonstrate an economic necessity for employment.

Q4: Does this process apply to me if I am currently in removal proceedings, have a final removal order, or have a voluntary departure order?
A4: This process is open to any individual who can demonstrate he or she meets the guidelines for consideration, including those who have never been in removal proceedings as well as those in removal proceedings, with a final order, or with a voluntary departure order (as long as they are not in immigration detention). If you are not in immigration detention and want to affirmatively request consideration of deferred action for childhood arrivals, you must submit your request to USCIS – not ICE – pursuant to the procedures outlined below. If you are currently in immigration detention and believe you meet the guidelines you should not request consideration of deferred action from USCIS but should identify yourself to your detention officer or contact the ICE Office of the Public Advocate through the Office’s hotline at 1-888-351-4024 (staffed 9 a.m. – 5 p.m., Monday – Friday) or by email at EROPublicAdvocate@ice.dhs.gov.

New – Q5: Do I accrue unlawful presence if I have a pending request for consideration of deferred action for childhood arrivals?
A5: You will continue to accrue unlawful presence while the request for consideration of deferred action for childhood arrivals is pending, unless you are under 18 years of age at the time of the request. If you are under 18 years of age at the time you submit your request, you will not accrue unlawful presence while the request is pending, even if you turn 18 while your request is pending with USCIS. If action on your case is deferred, you will not accrue unlawful presence during the period of deferred action. However, having action deferred on your case will not excuse previously accrued unlawful presence.

New – Q6: If my case is deferred, am I in lawful status for the period of deferral?
A6: No. Although action on your case has been deferred and you do not accrue unlawful presence (for admissibility purposes) during the period of deferred action, deferred action does not confer any lawful status.

The fact that you are not accruing unlawful presence does not change whether you are in lawful status while you remain in the United States. However, although deferred action does not confer a lawful immigration status, your period of stay is authorized by the Department of Homeland Security while your deferred action is in effect and, for admissibility purposes, you are considered to be lawfully present in the United States during that time.

Apart from the immigration laws, “lawful presence”, “lawful status” and similar terms are used in various other federal and state laws. For information on how those laws affect individuals who receive a favorable exercise of prosecutorial discretion under DACA, please contact the appropriate federal, state or local authorities.

New – Q7: Is there any difference between “deferred action” and “deferred action for childhood arrivals” under this process?
A7: Deferred action for childhood arrivals is one form of deferred action. The relief an individual receives pursuant to the deferred action for childhood arrivals process is identical for immigration purposes to the relief obtained by any person who receives deferred action as an act of prosecutorial discretion.

Q8: Does deferred action provide me with a path to permanent residence status or citizenship?
A8: No. Deferred action is a form of prosecutorial discretion that does not confer lawful permanent resident status or a path to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.

Q9: If my case is deferred, will I be eligible for premium tax credits and reduced cost sharing through Affordable Insurance Exchanges starting in 2014?
A9: No. The Departments of Health and Human Services and the Treasury intend to conform the relevant regulations to the extent necessary to exempt individuals with deferred action for childhood arrivals from eligibility for premium tax credits and reduced cost sharing. This is consistent with the policy under S. 3992, the Development, Relief, and Education for Alien Minors (DREAM) Act of 2010.

Q10: Can I be considered for deferred action even if I do not meet the guidelines to be considered for deferred action for childhood arrivals?
A10:This process is only for individuals who meet the specific guidelines announced by the Secretary of Homeland Security. Other individuals may, on a case-by-case basis, request deferred action from USCIS or ICE in certain circumstances, consistent with longstanding practice.

Q11: Will the information I share in my request for consideration of deferred action for childhood arrivals be used for immigration enforcement purposes?
A11: Information provided in this request is protected from disclosure to U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to U.S. Immigration and Customs Enforcement under the criteria set forth in USCIS’s Notice to Appear guidance (www.uscis.gov/NTA). Individuals whose cases are deferred pursuant to the consideration of deferred action for childhood arrivals process will not be referred to ICE. The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of deferred action for childhood arrivals request, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense. The above information sharing policy covers family members and guardians, in addition to the requestor.

This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.

Q12: If my case is referred to ICE for immigration enforcement purposes or if I receive an NTA, will information related to my family members and guardians also be referred to ICE for immigration enforcement purposes?
A12: If your case is referred to ICE for purposes of immigration enforcement or you receive an NTA, information related to your family members or guardians that is contained in your request will not be referred to ICE for purposes of immigration enforcement against family members or guardians. However, that information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of the deferred action for childhood arrivals request, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense.

This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.

Q13: Does this Administration remain committed to comprehensive immigration reform?
A13: Yes. The Administration has consistently pressed for passage of comprehensive immigration reform, including the DREAM Act, because the President believes these steps are critical to building a 21st century immigration system that meets our nation’s economic and security needs.

Q14: Is passage of the DREAM Act still necessary in light of the new process?
A14: Yes.The Secretary of Homeland Security’s June 15th memorandum allowing certain people to request consideration for deferred action is the most recent in a series of steps that DHS has taken to focus its enforcement resources on the removal of individuals who pose a danger to national security or a risk to public safety. Deferred action does not provide lawful status or a pathway to citizenship. As the President has stated, individuals who would qualify for the DREAM Act deserve certainty about their status. Only the Congress, acting through its legislative authority, can confer the certainty that comes with a pathway to permanent lawful status.

Q15: Can I request consideration of deferred action for childhood arrivals under this process if I am currently in a nonimmigrant status (e.g. F-1, E-2, H-4) or have Temporary Protected Status (TPS)?
A15: No. You can only request consideration of deferred action for childhood arrivals under this process if you currently have no immigration status and were not in any lawful status on June 15, 2012.

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Guidelines for Requesting Consideration of Deferred Action For Childhood Arrivals
Q1: What guidelines must I meet to be considered for deferred action for childhood arrivals?
A1: Pursuant to the Secretary of Homeland Security’s June 15, 2012 memorandum, in order to be considered for deferred action for childhood arrivals, you must submit evidence, including support documents, showing that you:

Were under the age of 31 as of June 15, 2012;
Came to the United States before reaching your 16th birthday;
Have continuously resided in the United States since June 15, 2007, up to the present time;
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;
Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
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;
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.
These guidelines must be met for consideration of deferred action for childhood arrivals. USCIS retains the ultimate discretion on whether deferred action is appropriate in any given case.

Q2: How old must I be in order to be considered for deferred action under this process?
A2:

If you have never been in removal proceedings, or your proceedings have been terminated before your request for consideration of deferred action for childhood arrivals, you must be at least 15 years of age or older at the time of filing and meet the other guidelines.
If you are in removal proceedings, have a final removal order, or have a voluntary departure order, and are not in immigration detention, you can request consideration of deferred action for childhood arrivals even if you are under the age of 15 at the time of filing and meet the other guidelines.
In all instances, you cannot be the age of 31 or older as of June 15, 2012, to be considered for deferred action for childhood arrivals.
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Education

Q1: Does “currently in school” refer to the date on which the request for consideration of deferred action is filed?
A1: To be considered “currently in school” under the guidelines, you must be enrolled in school on the date you submit a request for consideration of deferred action under this process.

Q2: Who is considered to be “currently in school” under the guidelines?
A2: To be considered “currently in school” under the guidelines, you must be enrolled in:

a public or private elementary school, junior high or middle school, high school, or secondary school;
an education, literacy, or career training program (including vocational training) that is designed to lead to placement in postsecondary education, job training, or employment and where you are working toward such placement; or
an education program assisting students either in obtaining a regular high school diploma or its recognized equivalent under state law (including a certificate of completion, certificate of attendance, or alternate award), or in passing a General Educational Development (GED) exam or other equivalent state-authorized exam.
Such education, literacy, or career training programs include, but are not limited to, programs funded, in whole or in part, by federal or state grants. Programs funded by other sources may qualify if they are administered by providers of demonstrated effectiveness, such as institutions of higher education, including community colleges, and certain community-based organizations.

In assessing whether such an education, literacy or career training program not funded in whole or in part by federal or state grants is of demonstrated effectiveness, USCIS will consider the duration of the program’s existence; the program’s track record in assisting students in obtaining a regular high school diploma or its recognized equivalent, in passing a GED or other state-authorized exam, or in placing students in postsecondary education, job training, or employment; and other indicators of the program’s overall quality. For individuals seeking to demonstrate that they are “currently in school” through enrollment in such a program, the burden is on the requestor to show the program’s demonstrated effectiveness.

Q3: How do I establish that I am currently in school?
A3: Documentation sufficient for you to demonstrate that you are currently in school may include, but is not limited to:

evidence that you are enrolled in a public or private elementary school, junior high or middle school, high school or secondary school; or
evidence that you are enrolled in an education, literacy, or career training program (including vocational training) that is designed to lead to placement in postsecondary education, job training, or employment and where you are working toward such placement, and that the program is funded in whole or in part by federal or state grants or is of demonstrated effectiveness; or
evidence that you are enrolled in an education program assisting students either in obtaining a regular high school diploma or its recognized equivalent under State law (including a certificate of completion, certificate of attendance, or alternate award), or in passing a General Educational Development (GED) exam or other such state-authorized exam, and that the program is funded in whole or in part by federal or state grants or is of demonstrated effectiveness.
Such evidence of enrollment may include: acceptance letters, school registration cards, letters from school or program, transcripts, report cards, or progress reports showing the name of the school or program, date of enrollment, and current educational or grade level, if relevant.

Q4: What documentation may be sufficient to demonstrate that I have graduated from high school?
A4: Documentation sufficient for you to demonstrate that you have graduated from high school may include, but is not limited to, a high school diploma from a public or private high school or secondary school, or a recognized equivalent of a high school diploma under state law, including a General Education Development (GED) certificate, certificate of completion, a certificate of attendance, or an alternate award from a public or private high school or secondary school.

Q5: What documentation may be sufficient to demonstrate that I have obtained a General Education Development (GED)?
A5: Documentation sufficient for you to demonstrate that you have obtained a GED may include, but is not limited to, evidence that you have passed a GED exam, or other comparable state-authorized exam, and, as a result, you have received the recognized equivalent of a regular high school diploma under state law.

Q6: If I am enrolled in a literacy or career training program, can I meet the guidelines?
A6: Yes, in certain circumstances. You may meet the guidelines if you are enrolled in an education, literacy, or career training program that is designed to lead to placement in postsecondary education, job training, or employment and where you are working toward such placement. Such programs include, but are not limited to, programs funded by federal or state grants, or administered by providers of demonstrated effectiveness.

Q7: If I am enrolled in an English as a Second Language (ESL) program, can I meet the guidelines?
A7: Yes, in certain circumstances. You may meet the guidelines only if you are enrolled in an ESL program as a prerequisite for your placement in postsecondary education, job training, or employment and where you are working toward such placement. You must submit direct documentary evidence that your participation in the ESL program is connected to your placement in postsecondary education, job training or employment and that the program is one of demonstrated effectiveness.

Q8: Will USCIS consider circumstantial evidence that I have met the education guidelines?
A8: No. Circumstantial evidence will not be accepted to establish that you are currently in school, have graduated or obtained a certificate of completion from high school, or have obtained a general education development certificate. You must submit direct documentary evidence to satisfy that you meet the education guidelines.

Q9: If I am currently in school and USCIS defers action in my case, what will I have to demonstrate if I request that USCIS renew the deferral after two years?
A9: If you are in school at the time of your request and your case is deferred by USCIS, in order to have your request for an extension considered, you must show at the time of the request for renewal either (1) that you have graduated from the school in which you were enrolled and, if that school was elementary school or junior high or middle school, you have made substantial, measurable progress toward graduating from high school, or, (2) you have made substantial, measurable progress toward graduating from the school in which you are enrolled.

If you are currently in an education program that assists students either in obtaining a high school diploma or its recognized equivalent under state law, or in passing a GED exam or other equivalent state-authorized exam, and your case is deferred by USCIS, in order to have your request for an extension considered, you must show at the time of the request for renewal that you have obtained a high school diploma or its recognized equivalent or that you have passed a GED or other equivalent state-authorized exam.

If you are currently enrolled in an education, literacy, or career training program (including vocational training) that is designed to lead to placement in postsecondary education, job training, or employment, and your case is deferred by USCIS, in order to have your request for an extension considered, you must show at the time of the request for renewal that you are enrolled in postsecondary education, that you have obtained the employment for which you were trained, or that you have made substantial, measurable progress toward completing the program.

Specific details on the renewal process will be made available at a later date.

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Travel

New – Q1: Do brief departures from the United States interrupt the continuous residence requirement?
A1: A brief, casual and innocent absence from the United States will not interrupt your continuous residence. If you were absent from the United States, your absence will be considered brief, casual and innocent if it was on or after June 15, 2007, and before Aug. 15, 2012, and:

The absence was short and reasonably calculated to accomplish the purpose for the absence;
The absence was not because of an order of exclusion, deportation or removal;
The absence was not because of an order of voluntary departure, or an administrative grant of voluntary departure before you were placed in exclusion, deportation or removal proceedings; and
The purpose of the absence and/or your actions while outside the United States were not contrary to law.
New – Q2: May I travel outside of the United States before USCIS has determined whether to defer action in my case?
A2: No. After Aug. 15, 2012, if you travel outside of the United States before USCIS has determined whether to defer action in your case, you will not be considered for deferred action under this process. If USCIS defers action in your case, you will be permitted to travel outside of the United States only if you apply for and receive advance parole from USCIS.

Any travel outside of the United States that occurred on or after June 15, 2007, but before Aug. 15, 2012, will be assessed by USCIS to determine whether the travel qualifies as brief, casual and innocent. (See below.)

You should be aware that if you have been ordered deported or removed, and you then leave the United States, your departure will likely result in your being considered deported or removed, with potentially serious future immigration consequences.

Travel Guidelines

Travel Dates Type of Travel Does it Affect Continuous Residence
On or after June 15, 2007, but before Aug. 15, 2012
Brief, casual and innocent

No
For an extended time

Because of an order of exclusion, deportation, or removal

To participate in criminal activity

Yes
After Aug. 15, 2012, and before you have requested deferred action
Any

Yes. You cannot travel while your request is under review. You cannot apply for advance parole unless and until DHS has determined whether to defer action in your case.

In addition, if you have previously been ordered deported and removed and you depart the United States without taking additional steps to address your removal proceedings, your departure will likely result in your being considered deported or removed, with potentially serious future immigration consequences.

After Aug. 15, 2012, and after you have requested deferred action
Any

New – Q3: If my case is deferred pursuant to the consideration of the deferred action for childhood arrivals process, will I be able to travel outside of the United States?
A3: Not automatically. If USCIS has decided to defer action in your case and you want to travel outside the United States, you must apply for advance parole by filing a Form I-131, Application for Travel Document and paying the applicable fee ($360). USCIS will determine whether your purpose for international travel is justifiable based on the circumstances you describe in your request. Generally, USCIS will only grant advance parole if your travel abroad will be in furtherance of:

humanitarian purposes, including travel to obtain medical treatment, attending funeral services for a family member, or visiting an ailing relative;
educational purposes, such as semester-abroad programs and academic research, or;
employment purposes such as overseas assignments, interviews, conferences or, training, or meetings with clients overseas.
Travel for vacation is not a valid basis for advance parole.

You may not apply for advance parole unless and until USCIS defers action in your case pursuant to the consideration of the deferred action for childhood arrivals process. You cannot apply for advance parole at the same time as you submit your request for consideration of deferred action for childhood arrivals. All advance parole requests will be considered on a case-by-case basis.

If USCIS has deferred action in your case under the deferred action for childhood arrivals process after you have been ordered deported or removed, you may still request advance parole if you meet the guidelines for advance parole described above. However, once you have received advance parole, and before you actually leave the United States, you should seek to reopen your case before the Executive Office for Immigration Review (EOIR) and obtain administrative closure or termination of your removal proceeding.

Even after you have asked EOIR to reopen your case, you should not leave the United States until after EOIR has granted your request. If you depart after being ordered deported or removed, and your removal proceeding has not been reopened and administratively closed or terminated, your departure may result in your being considered deported or removed, with potentially serious future immigration consequences. If you have any questions about this process, you may contact the ICE Office of the Public Advocate through the Office’s telephone hotline at 1-888-351-4024 (staffed 9 a.m. to 5 p.m., Monday through Friday) or by email at EROPublicAdvocate@ice.dhs.gov.

Miscellaneous
New – Q1: I first came to the United States before I turned 16 years old and have been continuously residing in the United States since at least June 15, 2007. Before I turned 16 years old, however, I left the United States for some period of time before returning and beginning my current period of continuous residence. May I be considered for deferred action under this process?
A1: Yes, but only if you established residence in the United States during the period before you turned 16 years old, as evidenced, for example, by records showing you attended school or worked in the United States during that time, or that you lived in the United States for multiple years during that time. In addition to establishing that you initially resided in the United States before you turned 16 years old, you must also have maintained continuous residence in the United States from June 15, 2007, until the present time to be considered for deferred action under this process.

New – Q2: I was admitted for duration of status or for a period of time that extended past June 14, 2012, but violated my immigration status (e.g., by engaging in unauthorized employment, failing to report to my employer, or failing to pursue a full course of study) before June 15, 2012. May I be considered for deferred action under this process?
A2: No, unless the Executive Office for Immigration Review terminated your status by issuing a final order of removal against you before June 15, 2012.

New – Q3: Can I request consideration for deferred action under this process if I live in the Commonwealth of the Northern Mariana Islands (CNMI)?
A3: Yes, in certain circumstances. The CNMI is part of the United States for immigration purposes and is not excluded from this process. However, because of the specific guidelines for consideration of deferred action for childhood arrivals, individuals who have been residents of the CNMI are in most cases unlikely to qualify for the program. You must, among other things, have come to the United States before your 16th birthday and have resided continuously in the United States since June 15, 2007.

Under the Consolidated Natural Resources Act of 2008, the CNMI became part of the United States for purposes of immigration law only on Nov. 28, 2009. Therefore entry into, or residence in, the CNMI before that date is not entry into, or residence in, the United States for purposes of the deferred action for childhood arrivals process.

USCIS has used parole authority in a variety of situations in the CNMI to address particular humanitarian needs on a case-by-case basis since Nov. 28, 2009. If you live in the CNMI and believe that you meet the guidelines for consideration of deferred action under this process, except that your entry and/or residence to the CNMI took place entirely or in part before Nov. 28, 2009, USCIS is willing to consider your situation on a case-by-case basis for a grant of parole. If this situation applies to you, you should make an appointment through INFOPASS with the USCIS Application Support Center in Saipan to discuss your case with an immigration officer.

Go here for all the FAQS.

Here’s the final rule for the

provisional waiver

process. It’s less helpful than I hoped. Those in removal proceedings have to have their cases administratively closed before they’d be eligible to apply for the provisional waiver.

SUMMARY: On April 2, 2012, U.S.
Citizenship and Immigration Services
(USCIS) published a proposed rule to
amend its regulations to allow certain
immediate relatives of U.S. citizens who
are physically present in the United
States to request provisional unlawful
presence waivers prior to departing
from the United States for consular
processing of their immigrant visa
applications. This final rule implements
the provisional unlawful presence
waiver process. It also finalizes
clarifying amendments to other
provisions within our regulations. The
Department of Homeland Security
(DHS) anticipates that these changes
will significantly reduce the length of
time U.S. citizens are separated from
their immediate relatives who engage in
consular processing abroad. DHS also
believes that this new process will
reduce the degree of interchange
between the U.S. Department of State
(DOS) and USCIS and create greater
efficiencies for both the U.S.
Government and most provisional
unlawful presence waiver applicants.
DHS reminds the public that the filing
or approval of a provisional unlawful
presence waiver application will not:
Confer any legal status, protect against
the accrual of additional periods of
unlawful presence, authorize an alien to
enter the United States without securing
a visa or other appropriate entry
document, convey any interim benefits
(e.g., employment authorization, parole,
or advance parole), or protect an alien
from being placed in removal
proceedings or removed from the United
States in accordance with current DHS
policies governing initiation of removal
proceedings and the use of prosecutorial
discretion.
DATES: This final rule is effective
March 4, 2013.

Preparing waivers (including the provisional waiver which is the same standard as a normal waiver) is very complicated and showing that the case meets the “extreme hardship” standard is tough so an immigration lawyer is almost mandatory for success.

Download (PDF, 415KB)

USCIS PRESS RELEASE ON PROVISIONAL WAIVER PROCESS:

Download (PDF, 628KB)

ICE immigration detainer memo:

Download (PDF, 1.1MB)

My immigration law office has moved from suite 557 to suite 602 of the Monadnock Building. I still share space with Chicago architect Naaman Landers.

USCIS immigrant adoption guidelines memo:

Background
The INA has three distinct ways an adopted child may be considered, for immigration purposes, to be the child of his or her adoptive parent(s):
• INA section 101(b)(1)(E), which applies to adopted children if certain requirements are met, including where the parent or parents have two years of legal custody and joint residence;
• INA section 101(b)(1)(F), which applies to children coming to the United States as “orphans” from countries that have not ratified the Hague Adoption Convention, if they have been adopted, or are coming to the United States to be adopted, by U.S. citizen(s); and
• INA section 101(b)(1)(G), which applies to children coming to the United States who have been adopted, or are coming to the United States to be adopted, by U.S. citizen(s) under the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Adoption Convention), signed at The Hague on May 29, 1993.

Policy
For immigration purposes under the INA, an adoption must satisfy these three essential elements:
the order must:
1. Be valid under the law of the country or place granting the adoption; and
2. Create a legal permanent parent-child relationship between a child and someone who is not
already the child’s legal parent; and
3. Terminate the legal parent-child relationship with the prior legal parent(s).
These requirements apply to every benefit request based on an “adopted child” relationship
under INA section 101(b)(1)(E), including, but not limited to:
• Form I-130;
• Form I-730;
• Form N-600;
• Form N-600K; or
• A claim to eligibility for an immigrant or nonimmigrant visa or classification as a
derivative under INA section 203(d).

See the whole memo below.

Download (PDF, 608KB)

The Illinois Senate passed SB0957 which if passed by the House and signed into law by Governor Quinn would give allow drivers licenses for undocumented immigrants. The bill passed by a 47-14 margin with mostly Republicans voting no. Though a couple of idiot Dems, Edward Maloney of the 18th district near Oak Lawn (his constituents should call and complain) and William Haine from Alton (guess the only shock is that he’s a Democrat) also voted against it.

You can see how each senator voted here.