Author Archive

Artesia, Day Two (and a half)

laura lichter artesiaHas it really only been two days? I guess technically, it’s three since I’m writing this at 1:30am. I have another long day ahead, but it’s important to get this out and, you know, you can sleep when you’re dead.

I feel like I’ve been here for weeks. The intensity of this experience has everyone in its grip. No one is getting much sleep:  volunteers get to the facility at 7:00am because Credible Fear Interviews (CFIs) start at 7:30am. CFIs are held all day long and into the evening. We understand the Asylum Office is trying to get its officers to call it quits by 7pm, but that’s not always happening. Just doing the math is daunting:  five asylum officers, twelve hours of interviews a day, seven days a week. It would take 1000 hours of attorney time to prepare these cases and we don’t have anywhere near that kind of time.

We stagger back to our dear “War Room” at the end of the day to celebrate our victories and commiserate when we lose. We trade stories and indignation over what new bullsh_ _  surfaced during the day and brainstorm how to make the process a little less miserable and a little more fair. We strategize on how to get the detainees the help they need and the due process they deserve. The pizza tastes great after a day when our only nutrition has been a couple of protein bars because we’re too slammed to eat—and too concerned about wasting time to leave the facility. Beer and wine have therapeutic benefits.

Yesterday we said goodbye to the Nevada contingent—maybe they’ve made the long drive home by now. We also lost a few Colorado AILA stalwarts. The volunteer from New York is taking off at 6:00am tomorrow. We’re down to less than half the volunteers we had at the beginning of the week, and spend hours trying to prioritize and triage cases.

Today, a care package came from AILA National. Amid the much appreciated office supplies were a couple of special items:  I’d asked if our Conferences people could send us some logo name tags and lanyards—and today we proudly wore our new “AILA Pro Bono Legal Help” badges. People recognize AILA and what we’re doing. They know we respect them, they tell us we give them hope. There is something so powerful in hearing, “que Dios te bendiga,” God bless you.

AILA also sent us a FlipCam, which I’ve been using to interview our AILA volunteers. I was able to capture some pretty inspiring and raw footage—not a single person (not even the camera operator) was able to recount their experience with dry eyes. You have to watch once AILA posts the edited footage.

Tomorrow—or actually, later this morning, I have a review of an CFI denial in front of an immigration judge that thinks counsel in these proceedings should be about as active as a potted plant. Wish me luck—should be just about the most fun I‘ve had all week.

Written by Laura Lichter, AILA Past President

Day One in Artesia: Notes from the Front Lines

Artesia

We drove from Denver to Artesia yesterday, a small town in central New Mexico, about three hours from anywhere.  It’s about a nine hour drive down from the last high passes of southern Colorado, through the low scrub of northern New Mexico into the high barren desert.  For hundreds of miles, the horizon was punctuated by nothing but long, low mesas, and thunderheads and storm squalls in the distance.

It’s a stark, beautiful landscape, which got drier and more barren the closer we got to our destination. Until recently, Artesia was probably best known as home of the Federal Law Enforcement Training Center (FLETC).  In June, Artesia became home to over 600 Central American women and children, housed in portable units on the FLETC campus.  It’s supposed to be a place to house migrants in a “residential” setting while their cases are reviewed for potential claims.  In reality, the facility feels more like an internment camp designed to be a deportation mill.

First, when you create a detention center in the middle of nowhere, it’s obvious that you’re going to run in to problems.  Staffing, housing, visitation protocols, etc… are immediate concerns and only increase the daily misery.  People are sick–the mothers we meet all tell us their children either refuse to eat or have constant diarrhea.  They don’t have proper clothing against the air conditioning and are constantly cold.  Detainees visit us, covered with small hand towels to keep themselves warm.  We have donations stacked 8 feet high nearby, but ICE won’t let us bring in blankets and other donations.

Add on trying to rush women and children through a process that’s stacked against them – a problem of the government’s own making.  Volunteer pro bono attorneys can’t get names before initial case reviews take place.  More often than not, these women—with their children in tow—walk into one of the most complicated areas of immigration law unprepared, unrepresented, unadvised and have to plead for their lives.

Morale at the detention facility is low, tempers are short—it seems like no one wants to be here—not the “residents,” nor the ICE guards or the USCIS asylum officers.   AILA attorneys are screening, volunteering direct representation and working nearly around the clock to handle the volume and the speed of the cases.  Nearly a half dozen asylum officers are working extended shifts.  Some are good, some are not.  The best of them are courteous and clearly are trying to find out if there is a legal claim.  The worst are short tempered, impatient, biased and rude.

There is no on site Legal Orientation Program (LOP) provider.  Only after several weeks of outcry was funding obtained to allow an El Paso non-profit, DRMS, to come to the facility twice a week, but only to do Know Your Rights presentations, not direct representation.  DRMS can only do presentations two days a week:  if you miss the Thursday/Friday sessions and you didn’t get lucky enough to be screened by a volunteer lawyer, you walk into a legal minefield, defenseless.

Many of the reviewed cases have been found to have a “credible fear” of return, but ICE is refusing to release these bona fide refugees.  Now the government is arguing that their continued detention is necessary to make sure they are not national security threats and to deter other (bona fide) asylum seekers from asking for the protections we are obligated to provide under our own immigration laws.  Not only that, but they are arguing that these refugees are a flight risk, despite asylum seekers having a 93% appearance rate, according to Lutheran Immigration and Refugee Service (LIRS).  Unbelievable.

Written by Laura Lichter, AILA Past President

The Good, the Not-so-Bad and the Ugly: USCIS Announces DACA Renewal Procedures

shutterstock_174737858Today, USCIS published long-awaited guidance for renewals under the Deferred Action for Childhood Arrivals or DACA program, including a new Form I-821D for both initial and renewal applications.  The guidelines should mean a streamlined process for most renewals, but the agency missed a real opportunity in how government processing times impact those who don’t—or can’t—apply months in advance.

The Good:  For most young immigrants who already have DACA, the renewal process should be fairly straightforward.  In order to be considered, a renewal applicant cannot have left the United States (without permission from the government) since August 15, 2012 and must have continuously resided in the country since they were granted DACA.  They must also not have any disqualifying criminal history.

Consistent with prior policy, USCIS took a real-world approach to the educational requirement.  An initial grant of DACA requires that the applicant be in school, have graduated High School, obtained a GED, or show proof of continuing educational efforts.  For renewals, the agency is not asking for further proof that the individual graduated or even continued in their studies.  For those who were forced to drop out or stop schooling due to financial or other difficulties, this practical solution will be a real boon to a lot of families and young people just starting out.

The Not-So-Bad:  USCIS wants DACA renewals in early.  So much so, apparently, that they are hinting that for early filers (more than 120 days before expiration) whose applications are not granted due to unexpected delays, USCIS “may provide deferred action and employment authorization for a short period of time.”  That being said, USCIS doesn’t want the renewal applications too early:  filings received more than 150 days before expiration may be rejected. So, trying to hit that sweet spot between 120-150 days before expiration might be your best bet.

Unfortunately, at $465, the filing fees associated with DACA renewals are still steep for many families with multiple applications or for young adults struggling to make it through school or in their first jobs. I’ve heard lots of talk about potential microloans or possible funding sources but so far I haven’t heard of an existing and simple option for the tens of thousands who may run into this issue.  Ideas welcome!

The Ugly:  Applicants who don’t file in that sweet spot of 150 to 120 days prior to expiration have some significant risks.  Timing on consideration of initial DACA filings has been creeping up, with a small, but nonetheless significant percentage of cases languishing for months past “normal” processing times.  A DACA renewal, after all, should just be a matter of a background check to make sure no red flags pop up from the last two years of a person’s life, scheduling biometrics and running a report.

To my mind, there’s absolutely no reason DACA renewals shouldn’t be held to the same 90-day standard as other work permit renewals that require the same background check.  If USCIS thinks they won’t be able to hit the 90 day benchmark, there’s plenty of precedent to allow for continued eligibility to work for those who file prior to expiration.  The same goes for how a lapsed or delayed renewal might impact “unlawful presence.” While eligibility to work (and in many states, qualify for a driver’s license or in-state or reduced tuition) may be the more immediate concern, DACA grantees should also pay attention to how accruing unlawful presence may trigger severe immigration consequences in the future.

All DACA renewal applications will have to go through a background check, and anyone who has had trouble with the law should be cautious. A conviction for a felony, a “significant misdemeanor” or three or more misdemeanors probably means that a renewal won’t be granted.  At best, someone with this kind of a history may just be throwing away their $465 in filing fees; at worst, that’s a lot to pay for a one way trip to a country that’s no longer home. In short, if there’s criminal history, better see an immigration lawyer to evaluate risk and any other options.

And of course, USCIS may use a renewal application as an opportunity to check for fraud.  If the information on an old application doesn’t match up with the information on the new form, that may be cause for concern.  A lot of initial DACA applications were filed without qualified legal help, without fully understanding exactly what was being asked for or knowing what was actually included.  In some cases, those inconsistencies may be innocent errors, in others, the DACA applicant may him- or herself be the victim of fraudulent preparers.  Best bet is to make sure you know what was filed and get appropriate help if there are any discrepancies.

Finally, while it sure looks like the renewal process should be relatively straightforward, the devil is in the details.  An increasing number of DACA applicants—and even more so, DACA renewers—may be eligible for something better than deferred action, like permanent residence or another path to legal status.  Use the free PocketDACA App to review eligibility or find help, or use www.ailalawyer.com to find an immigration lawyer to evaluate your best options.

Written by Laura Lichter, AILA Immediate Past President

The Agents of [Operation] S.H.I.E.L.D.

Photographs of the Byron G. Rogers Federal Building and U. S. Courthouse in Denver, Colorado. Carol  M. Highsmith, Llibrary of Congress

Photograph of the Byron G. Rogers Federal Building and U. S. Courthouse in Denver, Colorado. Carol M. Highsmith, Library of Congress

The Federal Protective Service has a heavy responsibility.  Their mission is to keep federal properties safe and secure for employees, officials and visitors, alike.  One such property is the newly renovated Byron G. Rodgers Federal Building in downtown Denver.  Among other tenants in this otherwise public building, sits the Denver Immigration Court where the fates of many immigrants and their families are determined.

Last week, under the banner of “Operation Shield” more than a dozen armed FPS personnel descended on the building’s entrance lobby.   The operation sought to restrict public access to numerous federal offices housed in that building, temporarily detaining and subjecting unsuspecting visitors to full criminal background investigations if they could not—or would not—produce valid US-government issued ID.

Predictably, immigrants, their family members, even witnesses and attorneys seeking to attend court proceedings were caught in this flash op.  Many immigrants—even those who are in the process of legalizing their status—rely on passports or foreign-issued identity documents until their case is resolved.  No matter that all visitors to the building pass through an almost airport-level of security screening, ensuring no weapons or other hazardous materials can be brought within.   No matter that immigration officials have already conducted background checks in conjunction with the applications of immigrants attending hearing.

Was this bristling display of law enforcement prowess calibrated to respond to a credible threat of terrorism?  No.  Was there a security breach, concerns about a potential insider attack, or a bomb threat?  Nope.  Was the operation hoping to detect “unauthorized persons” or potentially disruptive or dangerous activities?  Hardly.

What it did accomplish was to draw the attention and ire of many, including attorneys with the Colorado Chapter of the American Immigration Lawyers Association, who in response filed a federal lawsuit requesting a temporary restraining order to stop these intimidating practices. The lawsuit requests a federal judge to intervene and issue an injunction to immediately stop the abuse.  Today, the government has agreed to end these practices while a review of security measures takes place.

“Homeland Security” cannot be magic words that make us forget we have a Constitution.  Overbearing and intimidating practices such as these have no place in a country built on liberty and access to justice.

Written by Laura Lichter, AILA Immediate Past President and Member, AILA Colorado Chapter

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