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Source: Flickr Creative Commons Attribution Gage Skidmore

A estas alturas ya habrás visto los titulares de las noticias. Ahora analicemos la nueva acción ejecutiva histórica del Presidente Biden sobre inmigración y vayamos al meollo de todo lo que necesitas saber sobre esta orden diseñada para mantener unidas a las familias y brindar más oportunidades a los Dreamers.

Proceso para Promover la Unidad y Estabilidad de las Familias– Legalización de cónyuges Indocumentados de Ciudadanos Estadounidenses

Hoy, 18 de junio de 2024, el Presidente Biden anunció un nuevo proceso que permitirá la protección y legalización de los cónyuges indocumentados de ciudadanos estadounidenses que hayan residido en los Estados Unidos durante al menos diez años a partir del 17 de junio de 2024.

En virtud de la autoridad ejecutiva del Presidente, el Departamento de Seguridad Nacional (DHS), en coordinación con los Servicios de Ciudadanía e Inmigración de los Estados Unidos (USCIS), crearán un nuevo programa discrecional de “permanencia temporal” para que los cónyuges indocumentados de ciudadanos estadounidenses legalicen su estatus mientras permaneciendo en los Estados Unidos.

Aquellos que sean aprobados después de la evaluación caso por caso de su solicitud por parte del DHS tendrán un período de tres años para solicitar la residencia permanente. A los elegibles se les permitirá permanecer con sus familias en los Estados Unidos y ser elegibles para una autorización de trabajo por hasta tres años.

Las personas deben cumplir ciertos requisitos de elegibilidad para convertirse en residentes permanentes legales (titulares de tarjeta verde) bajo este nuevo proceso,

A continuación se encuentran respuestas a preguntas frecuentes sobre esta orden ejecutiva.

Q: ¿Cuáles son los requisitos para que los cónyuges sean elegibles para solicitar el permiso de permanencia temporal y legalizar su estatus en los Estados Unidos?

Para ser considerado caso por caso para una concesión discrecional de permiso de permanencia temporal en virtud de este proceso, una persona debe:

  • Estar presente en Estados Unidos sin admisión ni permiso de permanencia temporal;
  • Haber estado presente continuamente en Estados Unidos durante al menos 10 años a partir del 17 de junio de 2024; y
  • Tener un matrimonio legalmente válido con un ciudadano estadounidense a partir del 17 de junio de 2024
  • No tener antecedentes penales que lo descalifiquen o de otra manera constituir una amenaza a la seguridad nacional o la seguridad pública y
  • Merecer un ejercicio favorable de discreción para recibir permiso de permanencia temporal

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Source: Flickr Creative Commons Attribution Gage Skidmore

By now you’ve seen the headlines in the news. Now let us break down President Biden’s historic executive action on immigration and get to the nitty gritty of everything you need to know about this order designed to keep families together and provide further opportunities for Dreamers.

Process to Promote the Unity and Stability of Families – Legalization of Undocumented Spouses of U.S. Citizens

Today, June 18, 2024, President Biden announced a new process that will allow for the legalization of undocumented spouses of U.S. Citizens who have been residing in the United States for at least ten years as of June 17, 2024.

By virtue of the President’s executive authority, the Department of Homeland Security (DHS) in coordination with the U.S. Citizenship and Immigration Services (USCIS) will create a new discretionary “parole in place” program for undocumented spouses of U.S. Citizens to legalize their status while remaining in the United States.

Those who are approved after DHS’s case-by-case assessment of their application will be afforded a three-year period to apply for permanent residency. They will be allowed to remain with their families in the United States and be eligible for work authorization for up to three years.

Individuals must meet certain eligibility requirements to become lawful permanent residents (green card holders).

Below are answers to frequently asked questions regarding this executive order. 

Q: What are the requirements for spouses to be eligible to apply for parole and legalize their status in the United States?

To be considered for a discretionary grant of parole in place under this process, spouses of U.S. Citizens must:

  • Be present in the United States without admission or parole;
  • Have been continuously present in the United States for at least 10 years as of June 17, 2024; and
  • Have a legally valid marriage to a U.S. citizen as of June 17, 2024
  • Have no disqualifying criminal history or otherwise constitute a threat to national security or public safety and
  • Merit a favorable exercise of discretion to receive parole

Q: Are Noncitizen Children of Undocumented Spouses eligible for parole?

Yes. In addition to undocumented spouses of U.S. Citizens, their noncitizen children may also be considered for parole on a case-by-case basis under this process along with their parent, if they are:

  • Physically present in the United States without admission or parole and
  • Have a qualifying stepchild relationship with a U.S. citizen parent as defined by the Immigration and Nationality Act as of June 17, 2024

To qualify as a stepchild under the Immigration and Nationality Act, the noncitizen child must be unmarried, under the age of 21, and the marriage of their noncitizen parent and U.S. citizen stepparent must have taken place prior to the child’s 18th birthday.

Q: How is this new parole program different from the current laws in place?

This new “parole in place” program will eliminate the need for spouses of U.S. Citizens to travel outside of the United States to legalize their status through what is known as an extreme hardship “waiver” process.

The “waiver” process is an extremely cumbersome and lengthy process that requires the undocumented spouse to depart the United States and be interviewed and approved for an immigrant visa overseas. Only once the visa is issued can the applicant return to the United States.

This process has unnecessarily torn families apart and created much fear and uncertainty among applicants forced to remain away from their families for prolonged periods of time. Many applicants are the sole providers for their families and take care of children with disabilities, making this process extremely difficult to bear.

This executive action will instead open a pathway to permanent residence by allowing eligible undocumented spouses of U.S. Citizens to adjust their status to permanent residence while in the United States, without requiring them to depart the country.

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florida-890553_1280A new week brings new immigration news. Recently, a federal judge issued a temporary injunction blocking part of a Florida law that imposes criminal penalties on those who transport undocumented immigrants into the state of Florida, classifying such actions as felonies.

The order was made in response to a lawsuit filed by the Farmworker Association of Florida and seven individuals who feared traveling in and out of the state of Florida with undocumented friends and family members due to Florida’s controversial law.

In his ruling, Judge Roy Altman indicated that the Florida law is likely unconstitutional because the supremacy clause places the regulation of immigrants under the purview of the federal government.

In his preliminary order, the judge stated that Florida’s law is preempted by the federal government, “By making it a felony to transport into Florida someone who ‘has not been inspected by the federal government since his or her unlawful entry,’ [the law] extends beyond the state’s authority to make arrests for violations of federal immigration law and, in so doing, intrudes into territory that’s preempted.”

The judge further stated that any harm created by the injunction is outweighed by the harm suffered by the plaintiffs and the federal government. As a result, the Florida law will be halted until the judge rules on the merits of the case.

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courthouse-1223279_1280The federal government has sued the state of Oklahoma in a new lawsuit seeking to block HB 4156 from taking effect, a new anti-immigration law that regulates the entry of noncitizens by detaining and fining migrants who are unlawfully present in the state.

The U.S. government filed the lawsuit in the U.S. District Court for the Western District of Oklahoma on May 21st arguing that HB 4156 is unconstitutional because the federal government maintains exclusive jurisdiction over the subject of immigration and the status of noncitizens under the supremacy clause and foreign commerce clause of the U.S. Constitution.

Oklahoma’s HB 4156 which was slated to take effect July 1st considers the unlawful presence of a noncitizen in the state to be an “impermissible occupation” and directs law enforcement officials to arrest and jail undocumented immigrants.

The law aims to protect the state’s citizens against undocumented immigrants who could “potentially harm” its residents. Under the law, a first conviction would be a misdemeanor punishable by up to a year in county jail and a $500 fine. A second conviction would rise to a felony and carry a sentence of up to two years in county jail and a $1,000 fine.

Those convicted would be required to leave the state of Oklahoma within three days of being released from county jail.

In attempting to enforce this law, the Justice Department argues that the state is circumventing established law and constitutional authority by trying to take matters into its own hands.

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Welcome back to Visalawyerblog! In this post, we are breaking down Biden’s new immigration reform proposal which was recently introduced before Congress. The new proposal, also known as the U.S. Citizenship Act of 2021, is groundbreaking because it creates an earned path to citizenship for undocumented immigrants who arrived in the United States on or before January 1, 2021.

While this piece of legislation is still just a bill, it is opening the door for further dialogue from members of Congress and provides a unique window into what a final bill on immigration reform might look like.

How exactly does one “earn” their citizenship with this bill?

Undocumented immigrants who came to the United States on or before January 1, 2021, who can prove that they do not have a criminal record, and are not otherwise ineligible, would be eligible to secure something called “lawful prospective immigrant status” or “LPI” under this new bill.

Essentially, “LPI” would be a provisional temporary type of status that would allow undocumented immigrants to remain in the United States lawfully for a six-year period of time. This provisional status would act as a “gateway” to allow undocumented immigrants to apply for permanent residence and citizenship in the future.

Under the bill, eligible applicants would be granted “LPI” status for a 6-year period, and within that period of provisional status, immigrants would then be eligible to apply for permanent residence after 5 years. After 3 years of being in green card status, such immigrants would then be eligible to apply for U.S. Citizenship.

All applicants would be required to pass background checks and pay taxes under the law.

Would LPI immigrants be able to travel in and out of the country?

Yes. LPI immigrants would be eligible to receive employment authorization and advance parole that would allow them to work and travel in and out of the country.

Additionally, LPI immigrants would be protected from deportation while their applications for LPI would be pending with immigration.

Are there special provisions for DACA recipients, TPS eligible immigrants, and farm workers?

Yes. Under the bill, those with DACA, individuals eligible for TPS, and farm workers with a demonstrated work history would be exempted from the “LPI” provisional status and would be permitted to apply for permanent residence directly without having to wait 5 years to apply for permanent residence, through an expedited “fast track” type of processing.

All others, however, would need to first obtain LPI status and then after 5 years apply for a green card.

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Last week, the United States Citizenship and Immigration Services (USCIS) updated its policy manual to clarify acts that may prevent a naturalization applicant from meeting the good moral character requirement.

A successful naturalization applicant must show that they have been, and continue to be a person of good moral character during the statutory period prior to filing the application for naturalization and up until taking the Oath of Allegiance. The statutory period is generally give years for permanent residents of the United States, three years for applicants married to U.S. citizens, and one year for certain applicants applying on the basis of qualifying U.S. military service.

Two or more DUI Convictions

Firstly, the policy manual clarifies that two or more DUI convictions during the statutory period could affect an applicant’s good moral character determination (Matter of Castillo-Perez). However, applicants with two or more DUI convictions may be able to overcome this presumption by presenting evidence that they had good moral character even during the period within which they committed the DUI offenses.

DUI refers to all state and federal impaired-driving offenses, including driving while intoxicated, operating under the influence, and other offenses that make it unlawful for an individual to operate a motor vehicle while impaired.

Post-Sentencing Orders

Secondly, the policy manual clarifies the definition of “term of imprisonment or a sentence” to mean, an alien’s original criminal sentence, without regard to post-sentencing changes. Post-sentencing orders that change a criminal alien’s original sentence are only relevant for immigration purposes if they are based on a procedural or substantive defect in the underlying criminal proceeding.

Furthermore, the policy guidance provides the following as examples of unlawful acts recognized by case law as barring good mood character (this list is not exhaustive):

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Several months ago, we reported that the United States Citizenship and Immigration Services (USCIS) amended its policy regarding the issuance of Notice to Appear (NTA) documents in removal proceedings.

During the month of June, USCIS released a policy memorandum indicating the agency’s intent to revise NTA policy to better align with the President’s Executive Order 13768 “Enhancing Public Safety in the Interior of the United States.” NTAs are documents that are issued to alien’s subject to removal from the United States. Issuance of an NTA initiates the process of removing an individual from the United States.

Specifically, the Executive Order 13768 called on DHS to “prioritize the removal of aliens described in INA §§ 212(a)(2), (a)(3), (a)(6)(C), 235, and 237(a)(2) and (a)(4) … who are removable based on criminal or security grounds, fraud or misrepresentation, and aliens subject to expedited removal.”

In addition, the Executive Order called for the removal of individuals who:

  • (a) Have been convicted of any criminal offense;
  • (b) Have been charged with any criminal offense that has not been resolved;
  • (c) Have committed acts that constitute a chargeable criminal offense;
  • (d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
  • (e) Have abused any program related to receipt of public benefits;
  • (f) Are subject to a final order of removal, but have not departed; or
  • (g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security

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Beginning next year, the United States Citizenship and Immigration Services (USCIS) will launch a task force located in Los Angeles, designed to identify, detect, and prosecute individuals who have fraudulently gained United States Citizenship, for example by entering into a ‘sham’ marriage to obtain permanent residence, or engaging in other fraudulent activity, such as using a false identity to apply for permanent residence and/or naturalization.

USCIS has already begun to process of hiring lawyers and immigration officers who will review cases of individuals who have been deported, who the agency believes may potentially use a false identity to obtain permanent residence and/or citizenship. Such cases will be referred to the Department of Justice, who will then initiate the removal of individuals who have committed immigration fraud.

Of the denaturalization task force, USCIS Director L. Francis Cissna told reporters, “We finally have a process in place to get to the bottom of all these bad cases and start denaturalizing people who should not have been naturalized in the first place. What we’re looking at, when you boil it all down, is potentially a few thousand cases.”

The denaturalization task force will be funded by immigration application filing fees. The denaturalization task force will be primarily focused on targeting individuals who have used false identities to obtain immigration benefits.

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In this post, we bring our readers important information regarding revisions to the Notice to Appear “NTA” policy guidelines. On June 28, 2018, the United States Citizenship and Immigration Services (USCIS) released new policy guidance outlining the Department’s priorities for enforcement and removal of undocumented immigrants from the United States.

Form I-862 also known as a Notice to Appear is a document that is given to an individual to initiate removal proceedings. The Notice to Appear instructs the individual of a date and time to appear in immigration court for removal proceedings.

To better align with the President’s Executive Order 13768 “Enhancing Public Safety in the Interior of the United States,” USCIS has revised its NTA policy expanding the class of individuals who may be referred to ICE and issued a Notice to Appear. Under the revised policy, USCIS may now refer cases “with articulated suspicions of fraud to ICE prior to adjudication,” of cases filed with USCIS. The revised policy does not apply to recipients and requestors of Deferred Action (DACA) when (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA. For this class of individuals the 2011 NTA guidelines will apply.

The President’s Executive Order 13768 specifically calls on DHS to “prioritize the removal of aliens described in INA §§ 212(a)(2), (a)(3), (a)(6)(C), 235, and 237(a)(2) and (a)(4) … who are removable based on criminal or security grounds, fraud or misrepresentation, and aliens subject to expedited removal.”

In addition, the Executive Order prioritizes the removal of individuals who:

  • (a) Have been convicted of any criminal offense;
  • (b) Have been charged with any criminal offense that has not been resolved;
  • (c) Have committed acts that constitute a chargeable criminal offense;
  • (d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
  • (e) Have abused any program related to receipt of public benefits;
  • (f) Are subject to a final order of removal, but have not departed; or
  • (g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security

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In this post we discuss the top five most common reasons your adjustment of status application may be denied.

Financial Reasons

One of the requirements to receive adjustment of status in the United States is to prove that the petitioner (the U.S. Citizen or LPR spouse) has sufficient income or assets to support you based on the petitioner’s household size when filing the I-864 Affidavit of Support. The petitioner must meet at least 125% of the U.S. poverty guidelines in order to sponsor the beneficiary of the adjustment of status application. If the petitioner does not meet that income requirement, they may be able to use assets such as properties, a 401(k), mutual investment fund, ownership of stocks, ownership of two or more automobiles to supplement their income. However, if the petitioner will be using the value of their assets to supplement their income, the total value of the assets must be equal to at least three times the difference between the total household income and 125% of the U.S. poverty guidelines for their household size. For an example of how to use assets to supplement income, please review the I-864 affidavit of support instructions.

If the petitioner does not meet the income requirement and cannot supplement the shortage with their assets, they must obtain a joint sponsor who does meet 125% of the U.S. poverty guidelines based on their income. A joint sponsor can be anyone that is a U.S. Citizen or LPR that satisfies the poverty guidelines.

One of the most common reasons for a denial of the adjustment of status application is that the petitioner and/or joint sponsor does not meet the required income requirement. Failure to respond to a request for evidence with satisfactory evidence will mean a denial of the application, even before the couple gets to the interview stage.

Public Charge

If USCIS believes that the beneficiary will likely become dependent on the U.S. government for long-term care or financial support, the green card application will be denied. USCIS reviews the I-864 affidavit of support and income documentation closely to determine whether the beneficiary is likely to become a public charge. Factors that may be considered to make this determination include the total income of the petitioner, the joint sponsor, assets, resources, and general financial status at the time of filing.

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