Two Months Processing Time for Deferred Action Applications.

Once Deferred Action was first announced, practitioners and advocates could only guess the time it would take for these applications to be approved.  Considering it was a new application, the approval and receipt of working authorization could have taken months.  If the applications, I-821d, i-765

DACA Cover Sheet

, and I-765WS were sent correctly filled out, and with enough evidence to support eligibility it appears that the full process could take a little less than two months.

According to a recent interview with the New York Times, USCIS Director, Mr. Mayorka announced that the process is faster than expected, and that the agency has not received the amount of applications initially expected. This is interesting, considering the nation wide application drives organized by students and community organizations.

According to the report, assuming that the first applications were received in August 16^th, the approvals have taken less than 30 days, and the work permits would be issued before 60 days of the application.  These results come at no cost to the tax payers, considering that the fees paid by applicants are covering the government costs.

The initial release date of the applications was August 15^th 2012, but these forms were already on USCIS website on August 14^th.  The first applications might have arrived to the processing center in Chicago as early as August 16^th 2012.

The government issued receipts of the applications within 48 hours, and mailed them back via regular mail, some applicants might have received text message alerts, or emails if the form G-1145 was also sent in.

About three weeks after the application is received USCIS issues the fingerprint appointments, the first Deferred Action applicants attended service centers for photographs and fingerprints on Thursday September 6^th.

The first completed applications arrived to decision-making officers on Monday September 10^th, and approvals for deferred action were issued the same date for those who prove a prima-facie case with preponderance of the evidence.

Director Mayorka has ensured that these applications are processed without delay producing a surprising turnaround time.

Although work permits have not been issued as of today, Mr. Mayorka has said that those will be sent in the next few weeks.

It is important to recall that Deferred Action does not grant instate tuition or a possibility of a permanent status, and that the struggle continues for the DREAM Act, and Comprehensive Immigration Reform.

Deferred Action & Work Authorization

Applicants for deferred action will also be able to apply for work authorization. According to the June 15, 2012 deferred action memo, there will be separate applications, one for deferred action and another for work authorization.  While the deferred action application is not currently available, the procedure for seeking work authorization should follow the current regulations, 8 C.F.R. section 274a.12(c)(14), and (e).  See the regulations here:

http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-28757/0-0-0-29424.html

Section 274a.12(c)(14) says: “(c) Aliens who must apply for employment authorization . An alien within a class of aliens described in this section must apply for work authorization. … (14) An alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment;”

In other words, getting deferred action under the new program will not mean you also automatically get work authorization.  Instead, a separate application, the Form I-765, will be required, as well as evidence of “economic necessity.”

The current regulations explain how to show economic necessity in 8 C.F.R. section 274a.12(e).

“(e) Basic criteria to establish economic necessity . Title 45–Public Welfare, Poverty Guidelines, 45 CFR 1060.2 should be used as the basic criteria to establish eligibility for employment authorization when the alien’s economic necessity is identified as a factor. The alien shall submit an application for employment authorization listing his or her assets, income, and expenses as evidence of his or her economic need to work. Permission to work granted on the basis of the alien’s application for employment authorization may be revoked under § 274a.14 of this chapter upon a showing that the information contained in the statement was not true and correct. (Redesignated as paragraph (e), previously paragraph (d), 2/23/09; 74 FR 7993 )”

This section of the regulations is referring to the federal poverty guidelines.  You can see the current guidelines here:

http://aspe.hhs.gov/poverty/12poverty.shtml/#guidelines

In summary, deferred action applicants will need to submit evidence that their income falls below the federal poverty guidelines to qualify them to also get work authorization.  To prove this under current regulations, applicants need to submit a list of their assets, income and expenses.

According to 8 C.F.R. section 274a.13(a)(1), “Where economic necessity has been identified as a factor, the alien must provide information regarding his or her assets, income, and expenses in accordance with instructions on Form I-765.” http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-28757/0-0-0-29507.html

The government has indicated that the deferred action application should be available by August 15, 2012.  According to the June 15, 2012 deferred action memo, applicants will also need to submit the Form I-765 to seek work authorization.  Therefore, it is prudent for potential applicants to begin gathering information regarding their assets, income and expenses, as required by the existing regulations discussed above.

“NUEVO PROGRAMA DE INMIGRACION: Requisitos Basicos”

Foto De http://www.colorlines.com

Después de años de llegar a ninguna parte con el DREAM Act, el presidente Obama ha decidido ejercer su autoridad ejecutiva para ayudar a los que tendrían derecho en virtud de la legislación propuesta. Obama, el DHS, y la secretaria Janet Napolitano, anunciaron el 15 de junio de 2012, que ciertos inmigrantes que llegaron a los EE.UU. como menores de edad ya no tendran que enfrentar la amenaza de la deportación y pueden solicitar la “Acción Diferida” que les permita trabajar legalmente en este país.

Aduana de EE.UU. y Servicios de Inmigración (“USCIS”) aún no ha creado una aplicación para la Acción Diferida, pero, de acuerdo con Alejandro Mayorkas, director de USCIS, la agencia va a crear una aplicación dentro de los próximos 30 a 60 días.

Usted Es Elegible Para El Programa De Acción Diferida, Si Usted:

1. Llegó a los Estados Unidos bajo la edad de 16 años;
2. Haber vivido continuamente en Estados Unidos desde el 15 de junio 2007 (5 años), y no han salido de los Estados Unidos desde esa fecha;
3. Se encuentra actualmente en la escuela, se ha graduado de la “High School”, ha obtenido un certificado “GED”, o es honorablemente un veteran de las Fuerzas Armadas de los Estados Unidos o “Coast Guard”;
4. No ha sido condenado por un delito grave, un delito menor significativo, múltiples delitos menores, o de otra manera representan una amenaza para la seguridad nacional o seguridad pública;
5. No tiene mas de 30 años de edad.

Documentos Necesarios:

1. Partida o Acta de Nacimiento, pasaporte, o tarjeta de identificacion de su pais.
2. Records de la escuela, del medico o clinica que muestran su presencia en los Estados Unidos por los ultimos 5 años.
3. Diploma o GED, si usted tiene uno.
4. Cualquier otro documento que pueda tener para establecer su presencia, como por ejemplo, recibos, transferencias, estados de cuenta bancarios, etc.

Usted NO Es Elegible Si:

1. Tiene una felonia.
2. Si tiene más de un delito menor (infracciones de tráfico no se incluyen aquí, pero si usted tiene algunas multas de tráfico, lleve las disposiciones de la corte), o
3. Usted tiene un “delito menor significativo”. Usted debe consultar a un abogado para ver si su registro de antecedentes penales puede impedir que se le concediera la acción diferida.

Ten en cuenta, que pueden solicitar este programa, incluso si usted tiene una orden final de deportación de un tribunal inmigracion.

“The New DEFERRED ACTION PROGRAM: Basic requirements”

 

Picture From http://www.colorlines.com

After years of getting nowhere with the DREAM Act, President Obama has decided to exercise his executive authority to assist those who would be eligible under the proposed legislation. Obama, DHS, and Secretary Janet Napolitano announced on June 15, 2012, that certain immigrants who came to the US as minors may no longer face the threat of deportation and can apply for “deferred action” that would allow them to legally work in this country.

US Customs & Immigration Services (“USCIS”) has not yet created an application for deferred action but, according to Alejandro Mayorkas, Director of USCIS, the agency will be creating one within the next 30 to 60 days.

You Are Eligible For Deferred Action Program, If You:

1. Came to the United States under the age of sixteen;
2. Have continuously resided in the United States since June 15, 2007 (5 years), and have not left the United States since that date;
3. Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
5. Are not above the age of thirty.

Documents Needed:

1. Birth certificate and passport or ID.
2. School records or medical records that show you have been in the U.S for a minimum of five years.
3. Diploma or GED if you have one.
4. Any other documents you may have to establish presence, such as, receipts, remittances, bank statements, etc.

You Are NOT Eligible If:

• You have a felony conviction
• If you have more than one misdemeanor (traffic offenses not included here, but if you have any traffic tickets, bring court dispositions), or
• You have a “significant misdemeanor” conviction. You should consult an attorney to see whether your criminal record may bar you from being granted deferred action.

Please note, YOU CAN APPLY FOR THIS PROGRAM EVEN IF YOU HAVE A FINAL DEPORTATION ORDER FROM AN IMMIGRATION COURT

Violence Against Women Act (VAWA) Reauthorization Passes Senate

This act, which was adopted in 1994 and twice reauthorized with little controversy, has become a point of dispute between the Senate and the House.

The Senate voted 68 to 31 to pass the bill following an attempt by Democrats in the early weeks of May, 2012 to paint Republican objections as a new assault on issues important to women. By Thursday, May 24, 2012 Republicans were insisting they also wished for speedy passage of the bill, despite their concerns.

A measure that would reauthorize the Violence Against Women Act was approved by the Senate Thursday, May 24, 2012 with broad bipartisan support, despite some Republican objections to key provisions. The battle over those differences now moves to the House, where Republicans are pushing an alternative version of the bill.

The Senate approval of the measure would continue funds for those programs. The Senate version also increases the number of visas for immigrant crime victims who testify against their abusers, makes some provisions for Indian tribes to prosecute non-Indian offenders in some domestic violence cases and expressly protects lesbian, gay, bisexual and transgender victims.

The House version, drafted by Republican leaders, removes the Senate amendments but passed a House managers’ amendment some argue restored protections for immigrant and Native American victims.

The Senate bill was crafted in consultation with law enforcement groups and victims advocates and was introduced with a filibuster-proof 61 co-sponsors, including eight Republicans.

Democrats believed that gave Republicans who oppose the measure little leverage to demand votes on amendments likely to fail. They objected to Cornyn’s proposal because some advocates believe requiring judges to impose harsh mandatory sentences on abusers can sometimes discourage victims from reporting their crimes.

The new bill would restructure and consolidate grant programs and create new programs to raise awareness on college campuses.

Sen. Lisa Murkowski (R-Alaska), one of eight Republican co-sponsors, said it represented “thousands of hours” of work by domestic violence advocates. “I do believe it represents a real improvement in the services offered to victims, even in a difficult budget environment,” she said.

But other Republicans objected to a number of the measure’s new provisions. One would add language barring discrimination on the basis of sexual orientation and gender identity in programs funded through the measure. Another would let law enforcement issue up to 5,000 more visas each year to battered illegal immigrants who agree to participate in the prosecution of serious crimes. The 2000 update of the bill set aside 10,000 visas annually for that purpose, which advocates believe encourages victims to report crime. All 10,000 are being issued each year, and advocates say more are needed. A final area of contention would provide the government new authority to prosecute non-Indian men who abuse Indian women on tribal reservations.

“The Senate’s action today reaffirms that addressing this problem is bigger than politics,” Biden said in a statement. “In 2012, we should be beyond questioning the need for the Violence Against Women Act.”

Huffington Post, Violence Against Women Act Reauthorization Overwhelmingly Passes Senate, – April 26, 2012

The Hill, House passes Violence Against Women Act reauthorization, – May 16, 2012

Impact of Secure Communities on Children That Are Left Behind With Foster Families

According to a report released by the Applied Research Center, a startling number of children whose parents have been detained and/or deported are placed in foster care and face enormous barriers reuniting with their families. The report says 1 in 4 people deported in 2011 left behind a U.S. citizen child.  The researchers found that controversial federal programs such as Secure Communities (a.k.a. S-Comm), which allows federal authorities to screen fingerprints of those arrested by local police in order to detect undocumented immigrants, greatly contributed to the increased numbers of parents being detained and deported.  Sadly, due to new immigration enforcement programs like S-Comm, this number is expected to triple in the next five years.

• An estimated 5,100 children, currently living in foster care, have detained or deported parents. Nearly 15,000 more children are expected in the next five years.
• In the first six months of 2011, ICE deported 46,000 parents of U.S. citizen children, or 1 in 4 of all deportation cases.
• In areas where the local police act as immigration enforcement in collaboration with ICE, children in foster care were 29% more likely to have a detained or deported parent. The study found that Secure Communities has created “deportation hot spots” with increased numbers of children in foster care.
• Immigrant victims of domestic and gender-based violence are at a significantly greater risk of losing their children. 1 in 9 cases studied involved domestic violence.

The number of cases has flooded the child welfare system, all at the expense of U.S. tax payer. The U.S. spends $22 billion dollars on children in foster care annually, which averages to $40,000 per child— an unnecessary cost for children with able relatives. Yet, virtually all child protective service (“CPS”) agencies claim they cannot place children with undocumented family members because they “could be deported at any time.” These claims run counter to CPS’ obligation to reunite families.

While CPS is legally required to reunify children with able parents, immigrant children face enormous barriers. According to the report’s author, Seth Wessler, “there’s a limit to how long [Child Protective Services] will look for a parent. If the parent doesn’t speak English or doesn’t call their consulate, it actually makes is very easy for them to give up.” Usually, once parental rights have been terminated, children are put up for adoption.  And sometimes, children are adopted even before the parent’s rights are terminated.

The report urges federal, state and local governments to implement policies that protect children. The report recommends that Congress should create alternatives to detention for parents and allow them to participate “meaningfully” in dependency proceedings. DHS should also instruct ICE field offices that all parents of minor children should be granted discretionary relief with an emphasis on parents with children in foster care. State legislatures should institute “time-of-arrest” protocols for local law enforcement agencies so parents can decide who should take custody of their children.

Without these protections, thousands of children currently separated from their families—and thousands to come—will continue to languish in foster care. Is America, a country that prides itself on family values, really willing to let that happen?

Huffington Post, Deportations Leave Behind Thousands Of Children In Foster Care – November 8, 2011

Denver Post, Thousands of children of deported parents get stuck in foster care – November 17, 2011

Shattered Families, The Perilous Intersection of Immigration Enforcement and the Child Welfare System – November, 2011

LEGAL CLERK / INTERN AT NEW JERSEY LAW FIRM

Part-Time /Full Time.

Leschak & Barbosa is a small but busy law firm with two locations in New Jersey.

Responsibilities at the office mirror those of our attorneys:

Conducting intakes, and briefing attorneys.

Research and Drafting of memoranda.

Drafting motions and briefs.

Administrative tasks as required.

Candidates must exhibit exceptional attention to detail and superior verbal and written communication skills.  Mature and professional demeanor, excellent work ethic, and ability to work within a team are
a must for our office. Candidate should possess excellent computer skills, ability to work efficiently with
minimal supervision. Superb customer service skills to our diverse clientele is also a must.

 Candidate must present a professional and courteous first impression and appearance to all callers and visitors.  

We are seeking clerks and interns who can commit approximately 25-40 hours per week during the semester and/or summer. This is an unpaid position but the law firm is willing to work with interns to assist in securing school credit if applicable.  Ability to speak Spanish is preferred.

Please submit a cover letter and resume, indicate your office of preference (Elizabeth or Freehold) and send it to Staff Assistant at info@lblawyers.com.

 

For more information about the law firm, please visit our website: http://www.lblawyers.com.

Supreme Court expands relief for pre-1997 convictions

Last month, the Supreme Court issued an important decision, Judulang v. Holder, regarding discretionary relief available to legal permanent residents in deportation cases.

Federal immigration law governs both the deportation and admission of immigrants into the US.  Since 1996, the questions of admission and deportation have been decided in the same type of legal proceeding, but the major immigration law, the INA, still has 2 separate lists for these actions – one list rendering someone deportable and the other rendering someone inadmissible.

INA 212(c) allowed the attorney general to grant discretionary relief to inadmissible aliens.  Although 212(c) was repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, its relief remains available to aliens whose removal is based on guilty pleas before 212(c)’s repeal.

Judulang concerned the Board of Immigration Appeals (BIA’s) method of applying 212(c) in deportation cases.  According to the BIA rule, 212(c) relief would only be available to a person in deportation proceedings if the deportation ground charged had a close analogue in the INA’s list of inadmissibility grounds.   But, if the deportation ground covered different or more or fewer offenses, then 212(c) relief would be deemed unavailable.

The Supreme Court held that the BIA’s rule was arbitrary and capricious.  In the Court’s opinion, written by Justice Kagan, the Court stated that the BIA must use a rule that is tied to the purposes of immigration law and that considers the merits of an individual’s case.  The Court found that the BIA’s rule did not rest on any factors relevant to whether an alien should be deported.  Instead, it turned deportation decisions into a “sport of chance,” like Russian Roulette.

The Court’s decision is a welcome reprimand to the immigration system’s frequently arbitrary ways.  Whether a person is allowed to stay in the US should rest on the merits of their individual case, including things like their family and community ties and rehabilitation from any prior criminal conduct, not on an irrelevant comparison of statutory provisions.

Possible Changes to Waiver Applications

Under current immigration law, specifically INA section 212(a)(9)(B), people without lawful immigration status may be barred from re-entering the US for 3 or 10 years.  Those with between 180 days and 1 year of unlawful status in the US face a 3 year re-entry bar while those who have over 1 year of unlawful status face a 10 year bar.

This can be a problem for immigrants who are seeking a greencard.  When those without lawful status apply for a greencard, they will denied, due to their lack of status.  However, they may be eligible for a waiver if they can show that denial of their application will cause an extreme and unusual hardship to a qualifying US citizen or legal permanent resident.

People are now required to return to their home country for their visa interview as well as to submit their waiver application.  Processing of the waiver application can take days, weeks, months, or even a year! However, the Obama administration and USCIS have recently considered allowing waiver applications to be processed in the US.  While immigrants would still be required to return to their home country to complete the visa process, this change would greatly reduce the amount of time that families could be separated.

Waiver applications can be very complex. You should consult an attorney to determine if you are eligible for a waiver as well as to help you prepare the strongest waiver application possible.

DOJ shot the sheriff! (but they did not shoot the deputy)

After a 3-year investigation into abusive practices by Sherriff Joe Arpaio’s Maricopa County Sherriff’s Office (MCSO), the DOJ announced today that it had found a pattern and practice of civil rights abuses, including extreme racial profiling. See the DOJ announcement below: 

http://www.justice.gov/crt/about/spl/documents/mcso_findletter_12-15-11.pdf

These violations have also forced the Department of Homeland Security (DHS) to suspend its cooperation agreement (under INA 287(g)) with Arpaio’s office and restrict its access to immigration databases through the Secure Communities program. 

The simultaneous announcements by DOJ and DHS reconfirm what Leschak & Barbosa, LLC and other advocates of immigrants’ rights have claimed for a long time: allowing local law enforcement to enforce federal immigration law increases the likelihood of racial profiling and pretextual arrests in violation of our constitutional and human rights.

 

These announcements also highlight the main issues in the Supreme Court’s upcoming review of Arizona’s SB 1070, a law that institutionalized the role of state law enforcement in federal immigration enforcement. We hope that the Supreme Court takes the DOJ’s recent findings to heart when it rules on the legal challenges to SB 1070.