Author Archive

Ding Dong, DOMA Is Dead

Cheers erupted this morning outside the Supreme Court as the ruling was announced that by a 5-4 decision, Section 3 of the Defense of Marriage Act (DOMA) was unconstitutional.

For over 15 years, because of DOMA, bi-national same-sex couples were often forced to choose between separation or staying together, but living in exile from the U.S.  Our nation was really behind the times on this, since over 30 countries provide immigration benefits for same-sex couples and we have seen firsthand the incredible toll of this unconstitutional discrimination.  Any American would agree that being forced to choose between your homeland and your loved one is a heart-breaking choice, and not one that is worthy of our traditions of liberty and fairness.  And today, in a landmark civil rights decision, the Supreme Court agreed, striking down part of DOMA as unconstitutional.

Under current law, the agencies charged with administering the immigrations laws may only recognize lawfully married couples—and under DOMA’s federally mandated discrimination, that explicitly excluded same-sex couples.

As immigration lawyers, we know that whether a marriage is valid impacts all areas of immigration law:  for example, a lawful union would be required before the CEO of a multinational company could relocate to the US with her partner and a US citizen or resident may only sponsor a spouse or have a stepchild relationship recognized where there is a valid marriage.  Even in something as serious as a potential deportation, an immigration judge is barred from looking at the hardship on US citizen or permanent resident partner for an individual facing deportation—unless there is a marital relationship.

There will certainly still be challenges for same-sex couples in the immigration process.  Only twelve states and Washington, DC (in addition to 15 countries) recognize same-sex marriage.  Civil unions or domestic partnerships—so far—do not appear to be covered by the ruling.  Traditionally, the immigration authorities have recognized family relationships based on where the event was celebrated, rather than where the couple lives.  The continued application of that rule will ensure that a couple that legally married in Iowa, for example, but moved to a state like Colorado (which has a state constitution ban on gay marriage) can still be recognized as spouses under Federal immigration law.

Same-sex bi-national couples will still face more and different hurdles than heterosexual couples in the immigration process.  For example, there may be increased scrutiny as to the bona fides of a same-sex relationship, which—combined with greater challenges to providing evidence of a marital relationship that are traditionally the subject of agency review—may make it harder to prove a real relationship.

Even if DOMA has been struck down, that doesn’t mean that LGBT individuals are suddenly free from prejudice.  Some individuals may not want to disclose their sexual orientation to their employer, friends or family, meaning that a rich source of corroborating evidence may be off limits.  For others, the reality may be that it’s just not safe to openly admit they are gay, much less identify a spouse.  The Supreme Court’s invalidation of DOMA only struck the Federal government’s ban on recognition of marriage.  It did not protect LGBT individuals from discrimination or worse, and it will be critical for all elements of the process—including the Department of State in the workings of its consulates overseas—to be particularly sensitive to this potential harm.

As an extra benefit, allowing our immigration system to recognize same-sex bi-national couples will also make America more attractive to global talent.  According to Immigration Equality, there are an estimated 36,000 same-sex bi-national couples in the United States, and those families include 25,000 children.  AILA believes that LGBT/same-sex families should be included in the definition of the American family and that should be reflected in our immigration laws. The Supreme Court’s ruling today will guarantee all lawfully married couples equal rights in regards to immigration.

Same-sex bi-national couples have fought long and hard for the right to keep their families together.  It’s only fair that if a U.S. citizen or permanent resident is legally married—regardless of sexual orientation—that their lawful marriage be recognized by the federal government when it comes to immigration issues.

Anyone else getting dizzy?

Immigration reform seems to be both alive and dead, to be closer than ever, and further away.  Depending on who you listen to, you would swear that it’s a done deal, yet somehow simultaneously  dead.  One guy says it’ll never get the votes it needs to get out of the Senate, much less have any legs to carry reform through the House.  Someone else comments, we’ve been here before, it’s 2007 all over again, but somehow it hurts even more.

We do know for sure from the CBO report that immigration reform will improve wages, slash the federal deficit and have an overwhelmingly positive economic impact.  So that makes it the biggest no-brainer in the history of man.

Except, Speaker Boehner says he won’t break the “Hastert” rule for consideration of immigration legislation, which makes passage of a comprehensive bipartisan bill out of the House pretty much impossible.

And then House Judiciary Committee marks up two of the ugliest, most partisan immigration bills I’ve ever seen.  It’s deja vu all over again.

On Monday, the Senate came to a deal on the border security and voted 67 to 27 to go forward on commonsense reform, passing a key test with strong bipartisan support.  So now, we could see a Senate bill pass within a week.

It seems like every day we hear about new developments in the immigration reform debate and sometimes I feel like I’m in a live pinball game, shooting out of the gates, full of hope, bouncing off an unforeseen obstacle, then plummeting down after another barrier is thrown up, only to miraculously rocket back to the top again after narrowly escaping defeat.

Some may relish the politics of reform, but don’t forget for a minute that this “game” is being played with real people.  The ones who are being knocked around aren’t the politicians or even the experts or advocates.  They are the immigrants and their families, their employers and the communities that depend on them.  They are the undocumented and the entrepreneurs, grad students and DREAMers, investors and inventors, universities and research labs, sisters and brothers, mothers, fathers, and grandparents.  They are the ones whose very lives and futures are being debated on the floor of the Senate and in House Committee chambers.

We owe it to them—we owe it to our own communities and our future to fight for the best immigration reform legislation possible, one that meets our nation’s needs and the needs of immigrants because they are one and the same. America is a nation of immigrants.  Maybe those who are afraid of immigrants are really just fearful about who we are and America’s future.  The answer, however is clear:  we are strongest when we embrace immigration reform and the full promise of the American dream.

Want to do more?  Get on InfoNet learn about what’s really going on in Congress and what you can help achieve real reform.  Call your Senators, call your Representative, talk to them about what immigration law really means.  We’re the experts.  Let’s show them how a balanced, rational immigration system can help our country.

 

The Senate Floor Dance Is Set to Begin

Immigration reform is on tap to start up on the Senate floor next week, according to Senate Majority Leader Harry Reid (D-NV), with buy-in from many Senate Republicans led by Senate Minority Leader Mitch McConnell (R-KY).  I don’t mean buy-in as in committed to supporting the bill, since that is not the case.  I mean that they agree with many Democrats who want to see the bill come to the floor for debate and discussion, so they’re not going to block the bill from reaching the floor and being discussed.

Now, if Senator Chuck Schumer (D-NY) from the “Gang of Eight” is to be believed, this dance on the floor has to be a pretty fast number in order to wrap up work by the July 4th recess.  This bill is currently well over 800 pages long and contains the biggest revamp of our immigration system in more than a generation.  The deliberative Senate process is going to mean that there will be hours, days, and weeks of discussion and amendments and votes and commentating.

The next few weeks are absolutely vital if we as AILA members want to see reform happen.  Is S. 744 perfect?  No, I think we’d all agree on that.  But what it represents is something strong and important that can help millions, those millions that we see in our practices each day.  This bill will benefit children, parents, workers, and employers.  Will it benefit ALL children, parents, workers, and employers?  No.  But it will bring us a huge step closer to an immigration system that actually works and is designed to meet workforce needs in this century.

Will this bill pass?  Well, we are pretty much assured that the bill as currently drafted isn’t the final bill that may come out of the full Senate.  While the Senate Judiciary Committee required members to file all amendments by a certain date/time and then the Committee Chair made them all publicly available online, we don’t expect a similar set up for the full Senate.  Amendments and debate will be divided between the parties and, beyond each amendment, we probably will have a raft of second-degree amendments (legislative shorthand for “amending the amendment”).

Who is leading this dance?  You’ve heard of “dance with the one that brung ya’?” right?  In this case that is the bipartisan “Gang of Eight” that drafted the bill and the Republican members of the Judiciary Committee who voted for the bill.  Everyone is watching those Senators, particularly Marco Rubio (R-FL) and Orrin Hatch (R-UT), for cues as to the bill’s potential success or failure.

This is an issue that touches each state in our nation in a myriad of ways, and each Senator will have his or her ideas about how to improve the bill.  AILA of course will be highlighting the good amendments, the bad amendments, and the downright terrifying amendments that may come up, and will be calling on members to help lift support for good ones and call their Senators to explain why others are just a bad idea.

Adding to all of this fun, there’s a pretty good chance we’ll be in San Francisco at the AILA Annual Conference when this dance party starts to wrap up on the Senate floor.  At some point, Senator Reid will invoke cloture and then at least 60 Senators must vote yes to proceed to a vote on the legislation itself.  The vote on the bill will require a simple majority vote to pass.

This is a big deal.  And yet, it’s only one more step in the dance.  We still have the House Judiciary Committee and the House’s “Gang of Eight,” or “Magnificent Seven” now with Rep. Labrador’s exit, working on bills. If the House passes something that can be conferenced with the Senate bill, we would still have to see what might come out of any Conference Committee between the two chambers, and we’d still have to see if the end result is a bill that the President would sign.

I’m hopeful that this time, with momentum and public sentiment pushing it forward, we will end up with a solid bill at the end of this process, one that works for our country and for the immigrants who are such an important part of our society, our culture, and our economy.

 

Like Déjà Vu, All Over Again

Really? Seriously?  Wow.

Not the most erudite comment I’ve ever made but that’s what I’m reduced to facing this week’s Amendmentpalooza.  Wow.

I’m looking at the breakdown of proposed amendments to the Senate immigration reform bill (S. 744).  AILA National is conducting careful analysis of the hundreds of amendments, figuring out how they would impact our new favorite reading choice, the “Border Security, Economic Opportunity, and Immigration Modernization Act.”

In digging through the 300 amendments proposed by Democrats and Republicans alike, they have found some doozies.  These potential poison pills should be required reading for any immigration attorney, and, for that matter, any business owner and especially for any resident of several states from whom the Senators hail who proposed these outlandish amendments.

This is a bipartisan bill.  That already requires compromise on both sides, but accepting the following amendments wouldn’t be compromising, it would be putting nails in the coffin of a decent immigration bill and burying America’s future with it.

Apparently gutting the legalization process sounds good to several Senators.  Taken together the provisions would essentially ensure that pretty much no one qualified for permanent status—oh, and if Sen. Cruz has his way, no one who was ever willfully unlawfully present would ever get citizenship.  Nope, they’re unworthy.  I’m just surprised that there wasn’t a Scarlet Letter amendment in there too, forcing legalized immigrants to wear an “A” for Amnesty for the rest of their lives.

Businesses would get a pretty harsh wake-up call too, per Sen. Grassley, who would play havoc with the business immigration policies to the extent that American businesses seeking to hire foreign talent—the kind that leads to American jobs and global competitiveness—would be shut out.  At some point, you make an immigration category so difficult that no one will apply.  On the upside, I guess we wouldn’t need to hold an H-1B lottery ever again.

There is amendment after amendment that would roll our immigration policy backward instead of moving it forward, to prevent families from being reunited, and to throw more money at ineffective border security measures, rather than investing in enforcement that will actually make our country safer.  Oh, let’s not forget the amendments that would gut due process and eliminate training for DHS agents in things like civil rights.

Don’t get me wrong—a few stalwart Senators from both sides are offering potentially good amendments, to reunite families, ensure a more inclusive legalization process, and make our immigration system better.  How many of those might be included in any final bill is anyone’s guess.  Again, this is a bipartisan, compromise process so no one will be completely happy but the flip side is that with a decent bill, no one will be entirely disappointed either.

Some things require compromise, but worthless amendments that only serve to destroy the workable framework that the Senate “Gang of Eight” and their staff have built have no place in this process. If you’re in one of the states with a Judiciary Committee member, or have a client from that state, get calls in to your Senators, email their offices, reach out to contacts you made through AILA’s National Day of Action or in-state meetings.  Reach out to local reporters to talk about what is wrong with some of these amendments and why even proposing them is an overt effort to derail immigration reform that our nation desperately needs.  Your voices—and the voices of your clients—need to be heard, but they won’t be, unless you speak out.

A Bird in Hand—CIR and Deferred Action

With all the buzz about immigration reform, why apply for deferred action now? For those who were waiting to see how the elections turned out or whether the Obama administration’s Deferred Action for Childhood Arrivals or “DACA” program was “real” and not just a trick, the answer is clear: if you are eligible for deferred action, applying now is still the smart way to go, regardless of what Congress does—or doesn’t do—with Comprehensive Immigration Reform (CIR).

  • If you qualify for deferred action, a grant can mean an incredible opportunity to take charge of your future. DACA relief includes a work permit and you can apply separately for permission to travel outside the US without abandoning your deferred action status.
  • In many states, having an immigration work permit means you are eligible to apply for a driver’s license or other official identification. That means you can open a bank account, start a business, apply for a job, establish your credit, get professional training or start your career. Some states are even welcoming young immigrants to higher education at resident or near-resident student rates.
  • If you “wait and see” what happens with CIR, you may be putting yourself (and your family) at risk. Immigrants granted deferred action are considered a “low priority” for enforcement. Unless that changes—for example, because you commit a crime or serious immigration violation—someone with deferred action is unlikely to face arrest, detention or deportation by immigration officials.
  • Many proposals already hint at providing a more direct pathway to citizenship for DREAMers. While nothing has been decided yet, it makes sense that people who have already completed the background checks and application process for deferred action might be at the front of that line and have an easier time establishing eligibility.
  • A majority of Americans believe that smart immigration reform is critical for our country’s future, and that a pathway to citizenship for the undocumented is a fair and practical solution for the millions of undocumented. The opportunity to fix our broken immigration system is better than ever, but there are no guarantees and real reform could be derailed by partisan politics.

Get the facts and don’t get scammed! Not every young immigrant qualifies for deferred action, and some people have better options for immigration relief that offer a more direct or permanent path to citizenship. Only a lawyer can give you the advice you need to decide whether applying for deferred action is safe and smart, for you.

For AILA members and other stakeholders, there are a lot of easy ways to get the word out to potential applicants in your area. Check out the eight different print Public Service Announcements (PSAs) that AILA has developed to use in our outreach to the community about Deferred Action.

 

Stateside Waivers: Some Families Still Left Out in the Cold

This week, USCIS launched the new I-601A provisional waiver program, allowing certain relatives of American citizens who are in the country illegally to get a decision on their waiver case, before leaving the United States.

The exact numbers are not known, but it is clear that the new rules will impact thousands of US families.  For those who wouldn’t undertake the artificially-imposed, but very real risk of “touching back” to their home country under the old rules, the new regulations mean that it’s finally safe to complete the residency process.  For thousands of others, the goodwill shown by immigration authorities in trying to alleviate the hardship created by the meaningless departure requirement has inspired them to start a process that was unthinkable before the new rules were put into place.

There is no question that the new rule is an overwhelmingly positive development for American families.  Immigrants and their citizen family members now have some measure of peace, knowing that their loved one will not be stranded in a foreign country for an unknown length of time, potentially risking life and limb, while waiting for a decision on their case.  USCIS’s continued impressive handling of deferred action applications has shown that the agency has the capacity to handle a large volume of applications, and get it done right.  And, promisingly, USCIS has indicated that the provisional waiver process should be extended to qualified relatives in other family categories, as resources allow.

In the context of immigration reform, this “solution” to a problem that never should have existed in the first place this begs the question of why we punish American families (and U.S. employers) by forcing the very immigrants that already have a path to citizenship to undergo separation, financial and emotional hardship, and risk their safety to attend a 10 minute interview abroad, when the same process can be achieved at a local USCIS Field Office.

Unfortunately, for many other equally qualified relatives, the new provisions will do nothing to fix their immigration problems, and they and their family will remain stranded by the unworkable scheme Congress put into place nearly two decades ago.  Moreover, the new processing rules do nothing to fix the draconian “permanent bar” which results in de facto exile of a decade or more for immigrant family members.  As we move forward to try to find real solutions to our broken immigration system, Congress would be wise to consider the real cost to American families and U.S. competitiveness when trying to retain the failed policies or create new penalties which do nothing but harm the very people who already have a path to citizenship.

Regrettably, despite numerous comments from immigrant communities and advocates, the new rules perpetuated some of the absurdities of the process.  Instead of fixing the problems identified by experts in the field, the agencies inserted a glaringly punitive rule, inexplicably excluding individuals who had already started the process and had already paid the required government fees.   The irony is that this change serves only to leave out in the cold those families who were playing by the (old) rules.

As a result, thousands who had bravely begun the very last chapter of the application process have been stranded—ironically, after most put their cases on hold because the agency announced the proposed process over a year ago in draft form.  Under the final rules, those individuals cannot take advantage of the new procedures and must risk waiting outside the US for an indeterminate amount of time, without any sense of whether their case might—or might not be granted.

Not even filing a new consular application will allow a person with an approved petition to benefit from the new procedures.  The only way to have the same protections as other families appears to be withdrawing all applications and starting a case over from the very beginning.  In practical terms, this means that applicants who were nearly at the front of the line after years of processing, are being forced to choose between going forward, with all the uncertainty and risk of the “old” system, or abandoning their applications, getting into the back of the line, waiting years until they might see a new appointment and, to add insult to injury—paying twice for the privilege.

So, is there any reason these families are being singled out and put at risk?  No one involved in the process seems to have an answer, much less a defensible reason for this oversight.  If this feels like being in a long line at the grocery store and being relieved to see a new lane open, only to have the clerk take the guy behind you first, you’re not far off.  Except in this analogy, you not only get stuck at the back of the line, you end up paying for your groceries twice.

Written by Laura Lichter, AILA President

The Time is Now for Immigration Reform

“Tough, but fair.” That’s how President Obama described a critical element of any immigration reform plan:  a pathway to citizenship for millions of immigrants now living in the shadows. For these aspiring Americans, many of whom have been caught in our dysfunctional immigration system for more than a decade, a pathway to citizenship will allow them to become full members of our communities.  It’s the right thing to do—for our country, for our economy, and for our communities. And yes, the time IS now, and we cannot afford more partisan bickering and immigrant bashing.

So why is a path to citizenship so critical for reform, and what might “tough but fair” really mean?  Without a path to full inclusion, reform simply won’t work.  Without a path to full inclusion, we will be again left with an underclass in our communities.  The prize of U.S. citizenship comes with serious obligations, yet every day, thousands of would-be Americans come to our shores, sometimes risking life and limb for a chance to become one of “us.”  And why?  Because fairness is one of America’s core values.

Under both the Bipartisan Senate principles and President Obama’s plan, those seeking a path forward would be required to pay a fee and submit to background checks in order to receive a provisional status.  There’s nothing particularly controversial about that—criminal and national security checks are a long-established part of the immigration process and USCIS regularly requires filing fees, whether for a DREAMer requesting deferred action, or a long time resident starting the citizenship process.  And when it comes to keeping our borders safe and secure this illustrates yet another reason why real immigration reform isn’t amnesty, but actually a path to smart immigration enforcement.  Registration and background checks mean we know who’s here and can easily identify—and take action—if someone is a threat to our communities or national security.

But when the roadblocks begin to obstruct the road ahead, that’s when it stops being fair.  The requirement that would-be citizens pay back taxes is fair, but any plan should also recognize that undocumented immigrants already account for more than $11.2 billion dollars in just state and local taxes.  What about Selective Service?  Immigrant youth (males between the ages of 18 and 26) not already long to register, but we know—even before the President’s deferred action initiative—that these undocumented Americans so love this country that they want the right to serve in our military.

The plans call for additional fees and penalties, as well as a requirement that would-be citizens learn English and U.S. civics.  As under current law, under the proposed reform principles five years after receiving a green card, individuals will be eligible to apply for U.S. citizenship like every other legal permanent resident. Ironically, the commitment we would require for a green card is the same or more than we demand from long-term residents seeking naturalization. Many families will manage the financial burden, but for others, it will be out of reach.  That’s not one of our core values, either.

Much has been made about making those who might benefit from a path forward go to the back of the line, to wait until those who “played by the rules” make it through the lengthy and convoluted process.   But it’s our broken system—with decades-long waitlists for green cards—that caused these problems in the first place.  In fact, many of the 11 million who need reform are already “in line.”  Without meaningfully addressing visa backlogs, making someone wait at the end of a line to nowhere makes no sense.

If we’re going to achieve meaningful reform, any path to citizenship must be fair—and that means that it should not contain insurmountable obstacles that will dissuade people from even trying in the first place.  If it’s too tough, then it’s not fair.

What we have yet to see is whether Congress is actually going to work with the President to pursue meaningful reform and common sense workable ideas to fix this mess, or whether this historic opportunity will disintegrate into the same old partisan bickering and gridlock.

Call me an optimist—it’s not a label you will find frequently used by those who work with our immigration laws—but I know we can do this.

As the President said in Las Vegas “Now is the time.”

Written by Laura Lichter, AILA President

Six Things You Need to Know about Stateside Processing of I-601A Waivers

Starting March 4, 2013, certain relatives of American citizens who are in the country illegally and need a waiver of unlawful presence before being eligible for a green card can get a decision on their case before leaving the United States.

For those who can take advantage of the new rule, this means peace of mind, knowing that their loved one is likely to successfully complete the immigration process and not be stranded in a foreign country for an unknown length of time.  For some, however, the new rule will do nothing to resolve their immigration issues.

1.      What is the new rule and how can it help my family?

Under current law, many immigrants who enter the country illegally or overstay their visas cannot apply for permanent residence (a “green card”) in the U.S., and instead must finish the immigration process abroad.  Unfortunately, just leaving the country—even to pick up a visa sponsored by a family member—automatically makes the intending immigrant subject to a penalty for their “unlawful presence,” potentially separating them from their family for up to ten years.

For some, but not all, the penalty can be waived.  Before this new rule, immigrants could be stranded outside the country for weeks, months or even years while waiting for a decision on whether they could return to their life in the United States. And all that time, the immigrant was stuck abroad, usually with no legal way to return.  Many families endured the emotional strain, financial hardship and dangerous conditions. Others simply were unwilling to take the risk.

The new rule means that many immigrants will leave the United States, knowing in advance that their case will probably be approved, and they could be back with their families—as a legal resident—in a matter of days.

2.      Who can apply under the new rule?

Only applicants who are an immediate relative of a US citizen (spouses, parents and certain children) can apply at this time, though the rule may later be expanded to other relatives.

The applicant must be physically present in the United States, and not already have a scheduled interview at a U.S. consulate abroad.  Also, the provisional waiver is only available if the sole issue holding up a case is unlawful presence.  Applicants who have criminal issues or other immigration violations cannot use the provisional procedure.

Individuals who are in immigration court or who have an order of removal or voluntary departure may not qualify unless they get special permission from the government and a court order resolving their case.

To be successful, applicants must show that denying the case would be an extreme hardship to their qualifying relative(s); the impact on the immigrant doesn’t count.  Hardship factors can include family separation, economic hardship, medical issues, country conditions abroad, and any other difficulty or harm faced by the qualifying relative(s), if the waiver isn’t granted.

3.      What does it mean that the waiver is “provisional?”

Even if a waiver is granted, the approval is “provisional.”  As a practical matter, this means that the government has reviewed the case and believes that the waiver should be granted, but there is no guarantee that a case will be successful if facts change or new information comes to light.  For example, if an applicant had previous immigration violations or criminal history, the provisional waiver will be revoked.

If any new issues arise, and the applicant is still eligible for a waiver, he or she will be able to re-apply using the existing process, but will have to wait abroad for a decision on their case.

4.      When can I apply?

The new rule goes into effect on March 4, 2013, and no filings will be accepted before that date. You can only apply for a provisional waiver after an immigrant petition has been approved.  If you haven’t filed yet or you’re still waiting for a decision on a pending petition, you can’t apply for the provisional waiver—yet.

5.      What else do I need to know about provisional waivers?

A provisional waiver is not a legal status, and even an approved waiver doesn’t provide work authorization, a social security number or a driver’s license. Having a provisional waiver will not protect you from deportation or any other consequences of being in the country illegally.

If an application for a provisional waiver is denied, there is no appeal.  If you have more or better evidence to prove your case, you can re-file, with a new filing fee. Remember, not everyone can be sponsored or qualify for a waiver, and just as importantly, not everyone needs a waiver.

6.      Do I need to work with an attorney?

The immigration process can take months, even years, and government filing fees and other expenses are significant—it’s best to know your options before investing time and money.  A thorough legal consultation should look at all aspects of your immigration history to find the best solution for your family, not just evaluate eligibility for a provisional waiver.

Always work with a licensed immigration attorney.  Never trust legal advice from an unregulated consultant or notario. Consider consulting with an experienced immigration lawyer before starting the process to make sure that you qualify, and that stateside waiver processing is the best solution for your immigration case.

Additional Resources

Always turn to reputable sources for immigration advice and information about new developments. Finding an AILA lawyer is a good place to start. Members listed on www.ailalawyer.com meet legal education and malpractice insurance requirements, and have been AILA members for at least two years.

AILA Immigration Lawyer Referral Service

AILA Resources for Stateside Waivers

USCIS Resources on Provisional Waivers

Consumer Protection for Victims of Immigration or Notario Fraud

Written by Laura Lichter, AILA President

AILA Takes Manhattan

The holiday season was in full swing in New York when AILA President-Elect Doug Stump and I “invaded” the city last week. No stealth maneuvers here, this was a planned, coordinated campaign – we were there to talk to the press.

Most of the reporters were people AILA Communications has been working with for a good long while. These journalists turn to AILA for expertise on immigration topics ranging from detainers to waivers, from DACA to H-1Bs. So, while juggling the schedule was a challenge, each reporter gave us a generous amount of time to share our views, to answer questions, and to see where we can be of most help in the future.

Did you ever wonder how we have been so successful at getting our members’ voices heard? Look no further than AILA’s crackerjack Communications Department! Kudos to Senior Director of Communications George Tzamaras and Manager of Communications Belle Woods not only for a successful tour, but for making it their mission that people turn to AILA as the reliable resource for immigration expertise.

The tour included meetings with The Guardian, the Wall Street Journal, CNN Money, the New York Daily News, CNN, the Associated Press, and the New York Times. Discussions ranged widely but here are some of the topics we covered:

• At every meeting, Comprehensive Immigration Reform (CIR) was the first topic that came up, and always led to a lively discussion about what did we think about the prospects for next year, and what did AILA think real reform might look like.

• We talked about what DACA means to our clients and their families and what we think we’ll see in terms of applications next year. We also highlighted how complicated a “simple” application can be, and how critical it is to have good legal advice in the process.

• We talked about the many ways our current immigration system is broken, and how the current mess is the inevitable result of multiple barriers to legal immigration that are literally written into the law or just part of the adjudications process, as well as illustrated how they affect businesses and families, alike.

• Producers and reporters wanted facts. And boy did we give them facts: facts about how difficult it is to navigate our current system; how unwieldy, unforgiving, and unfair the process can be; how much our nation needs its immigrant communities; and the high cost of letting politics instead of common sense dominate the discussion. And thanks, IPC, for making us look so smart!

• We talked about notario fraud and AILA’s efforts to educate the public about the danger these scammers pose to immigrant communities. We introduced them to resources on UPL, including AILA’s consumer protection website, http://stopnotariofraud.org (now in four languages).

• We also highlighted our Chapters’ and individual members’ extraordinary efforts to educate their communities about the risks and potential rewards of deferred action, the value of working with an immigration lawyer and how for many, getting good legal advice can mean the difference between a bright future and deportation.

While not a media meeting, another highlight of the trip was meeting with the Partnership for a New American Economy (out of Mayor Bloomberg’s Office), which was a great opportunity to talk potential partnerships/collaboration with AILA in the coming year. It was also a chance to learn from each other. For instance, PNAE has been involved in a micro loan program to help qualified DACA applicants borrow enough for government filing fees. The program has been in effect for a few months, and PNAE has promised to let us know how that progresses, as the $465 fee has been a roadblock for many young immigrants.

By the end of the second day of meetings, we felt like we’d definitely made an impact. While not everyone can get to NYC and blitz through meetings as we did, we want to emphasize that working with your local press outlets is something that AILA members around the country can and should do. Take a look at these notes, think about what the various outlets were most interested in, and pitch a story tailored to your local news outlet. Want some help crafting your message? Run a pitch by AILA Communications—George and Belle are more than happy to help.

So, let’s take a well-deserved break over the holidays and then come back in the New Year ready to take on the immense task of restructuring our nation’s broken immigration system.

Do DREAMers really need a lawyer?

We don’t have all the details yet, but the basic requirements to qualify for deferred action seem, well, pretty straightforward—and a motivated high school graduate or college student might be tempted to try to apply on their own, without seeking advice from an attorney or legitimate nonprofit.

Even though the requirements look simple, you don’t need a law degree to know that looks can be deceiving.  So when do you really need a lawyer?  And just as importantly, what can (and should) a lawyer do for you?

In order to be considered for deferred action for childhood arrivals or “DACA” (apparently the new government acronym for the program) an individual must have arrived in the U.S. when they were under age sixteen.  In addition, they must have been physically present in the U.S. and under age 31 when the policy was announced on June 15, 2012, as well as show that they continuously resided in the U.S. for at least five years before that date.

In order to qualify, the applicant must be in school, have graduated high school, obtained a GED, or be an honorably discharged veteran of the U.S. Coast Guard or the U.S. Armed Forces.  Individuals who have been convicted of a felony offense, a “significant misdemeanor offense,” three or more non-significant misdemeanors, or otherwise pose a threat to national security or public safety may not qualify. Only youth who are at least 15 years old will be able to apply, unless they are currently facing deportation.

Some of the red flags are obvious; some are not.

If a DREAMer has ever had any contact with law enforcement, even if it never resulted in a conviction, the case should still be screened by a lawyer.  Why?  A competent immigration lawyer should be able to review your records and determine what’s really in there (hint:  it’s often a whole lot different than what you thought).

For example, an incident you thought was resolved without any consequences may actually be a real problem. If the judge said you wouldn’t have a record because you were a minor, or told you your record would be wiped clean if you kept out of trouble or completed public service hours, that incident might still be used to disqualify you, either as a conviction for immigration purposes or under public safety grounds.  Just the suggestion—even without proof—of gang activity, or a history of certain traffic infractions might affect your application.

On the other hand, if you think a prior brush with the law means you can’t qualify, remember that these requirements are evolving, so it’s best to have an immigration attorney evaluate your case.  Even if a conviction stands in the way, a lawyer may be able to find a legal basis to reopen that case to obtain post-conviction relief.

Anyone who has ever filed anything or had any contact with immigration authorities would be smart to have a lawyer review their immigration file and history. Perhaps a prior application has gone missing—or gone south.  Cases filed by a notario—even something filed on your behalf by a family member—may contain inaccurate or even fraudulent information that could knock you out of consideration.  Sometimes, an out-of-date address means notices didn’t reach you and your case was referred for a deportation hearing—one that you never knew about and never went to.

If you have ever left the U.S., you will want to ask a lawyer whether that departure interrupted your continuous presence (especially if you left because you were granted voluntary departure or ordered removed).  And if there were any issues on your return—like being refused entry, caught at the border, or using a fake document—there will be immigration consequences to consider.

What about someone who isn’t sure how to prove that they were here on June 15, 2012, or isn’t sure they can show they have been continuously residing in the U.S. for five years?  A competent immigration lawyer can help, especially if you think you don’t have access to reliable evidence (or maybe don’t have all the evidence in your own name).

Did you ever use a false identity, make up a social security number or claim to be a United States citizen?  Did you use your cousin’s U.S. birth certificate to get an ID or a job or a driver’s license?  See a lawyer to understand the immigration consequences.

Ok, so people who have had run-ins with law enforcement or who have a tricky immigration history may already know they need a lawyer, but what about the “easy” cases?  You may be able to navigate the application procedures by yourself, but even for the cleanest cases, the real question is not whether it’s safe to apply, but smart.

Every applicant is coming “out of the shadows” and providing detailed information to the government.  If you’re wrong about your case or how you handle your application, maybe you only wasted time waiting for a decision and money on government fees.  But what if you find yourself in custody or facing removal?

In an initial consultation, an immigration attorney should not only review DACA eligibility, but also take your complete immigration history (and even your family members’ history, in some cases) to see if there are other options or particular risks to applying.  You should have a chance to ask the lawyer questions and leave with a clear understanding about your immigration case.  If that can’t be handled in the short time and with the limited information available during your consult, you should at least know what needs to be done to figure things out.

Even though it’s often better to have a lawyer handling your case, not every case will need a lawyer to be successful.  But if things aren’t going smoothly—if you get a notice that says your evidence isn’t good enough or a letter you don’t understand, consult with an attorney immediately to understand your rights.  If your application is denied, or you wind up being issued a Notice to Appear and referred to immigration court, it’s time to get back to a lawyer’s office!

Only a competent immigration attorney or BIA accredited representative can evaluate your case, identify the risks and even explore other legal avenues for gaining status (which might even be better than deferred action).

Consider using the American Immigration Lawyers Association referral service to find a lawyer in your area. The listed individuals are licensed attorneys who have been AILA members for at least two years and comply with annual continuing legal education requirements, as well as carry malpractice insurance.

If you can’t afford a lawyer, consider working with a legitimate nonprofit that provides immigration legal help, usual through a BIA accredited representative (a non-lawyer legal professionals trained and supervised by attorneys). Remember, not every group that claims to be a nonprofit is working in the community’s best interests.

Finally, if you think you’ve been scammed—by an attorney, or just someone posing as an attorney—report it to your local bar association before they take advantage of someone else! Be smart, be safe, and protect yourself and your family—get the right information to make the decision that’s right for you.