Visa Lawyer Blog

Articles Posted in Deportation & Removal

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Yesterday night, in a 2-1 vote the United States Fifth Circuit Court of Appeals voted to uphold the lower court’s decision in Texas v. United States blocking President Obama’s extended Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) programs from going into effect.

The expanded DACA and new DAPA provisions were announced November of last year as part of Obama’s executive actions on immigration giving eligible undocumented individuals a legal status in the United States. The expanded DACA program would have made millions of law abiding undocumented aliens (with no criminal history) eligible for employment authorization and social security benefits. To qualify, expanded DACA applicants would need to provide documented evidence proving their continuous physical presence in the United States from January 1, 2010 onward. In exchange, the United States government would recognize these individuals as law abiding residents and safeguard them against deportation. The move was significant since it would mean that undocumented individuals would no longer need to live on the fringes of society. By granting these individuals an immigration classification, insurance companies would become accessible to them for the first time ever.

Similarly, Obama’s DAPA program would have extended eligibility of deferred action to parents of US Citizens and Lawful Permanent Residents born or or before November 20, 2014 the date of the DAPA program’s announcement. As part of the application process, DAPA applicants would be required to undergo extensive background checks and prove continuous residence since January 1, 2010 among other provisions. Click here for more information on DAPA.

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In this blog we are answering 5 of your most frequently asked questions received on our social media platforms and our website. Please remember that every case is different and every immigration journey is unique. You should not compare your situation to anyone else’s. We hope that our answers will provide you with further guidance while you embark on your immigration journey. If you have any further questions, please call our office for a free legal consultation. We serve international clients and domestic clients in all 50 states. We thank you for your continued trust in our law office.

Qualifying for 245i and Adjustment of Status

Q: My ex-husband filed an adjustment of status application on my behalf based on 245i. We separated before we received our initial interview appointment and later divorced. I have since remarried. Can my husband apply for my permanent residence now that we are married?

A: Thank you for your question. Certain individuals who have a qualifying relative willing to file an immigrant visa petition on their behalf, are eligible to adjust their status under 245i Immigration and Nationality Act if they entered the country without inspection (unlawfully) and were the beneficiary of a visa petition or application for labor certification filed on specific dates outline below. Before proceeding with a new green card application, you should make sure you qualify for 245i and have all of the necessary documents to prove your eligibility. 245i applicants must provide documented evidence of their physical presence in the United States and evidence that the visa petition or application for labor certification was filed on their behalf by providing the receipt notice of the petition also known as the I-797 Notice of Action.

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lupe

It is our pleasure to introduce our incredibly skilled operations manager and immigration consultant, Lupe Lopez. If you have called or stopped by our San Diego office for a consultation, chances are you have already met with her to discuss your needs. Throughout her immigration career, Ms. Lopez has assisted thousands of clients with their immigration concerns. There is no situation or immigration story she hasn’t heard and no shortage of extraordinarily challenging cases she has assisted with. Her compassion and empathy working with clients who have faced family separation and other adversities is unmatched.

Ms. Lopez holds over 12 years of experience in the field of immigration legal services. Her expertise includes filing waivers of inadmissibility, I-360 VAWA petitions, removal proceedings, nonimmigrant waivers, business, investment, and family immigration petitions. Ms. Lopez possesses a B.S. in Human Resource Management and a Certificate in Labor Relations. She is currently in the process of becoming Dale Carnegie certified. Aside from serving as an immigration consultant, Ms. Lopez is also our Operations Manager, ensuring that we deliver the highest level of customer service with proven results. She helps train, organize, and improve our operations systems which allow us to gain the customer trust, loyalty, and satisfaction. In her capacity as operations manager, she addresses both internal concerns and client concerns keeping our standards for excellence above our competitors.

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Senate

On October 20, 2015 Democrats in the Senate successfully blocked the Republican backed bill S. 2146: Stop Sanctuary Policies and Protect Americans Act from moving forward with a vote of 54-45. At its core, the bill aimed to hold sanctuary jurisdictions accountable for noncompliance of federal orders including detainment of undocumented immigrants, increasing penalties for individuals caught re-entering the United States after their removal, and providing protection to state and local law enforcement officials cooperating with federal law enforcement officials. The bill was introduced by Republicans after an act of violence took the life of a San Franciscan woman at the hands of an alleged undocumented immigrant with a felony record, who had also been the subject of multiple removals. Public outcry ensued after the city sheriff released the perpetrator despite a federal immigration detainment order. According to Republicans, San Francisco is one of hundreds of sanctuary cities that refuse to comply with federal immigration orders to facilitate the detainment and removal of undocumented immigrants.

Among its provisions, the bill aimed to crackdown on so called ‘sanctuary cities’ notorious for their noncompliance by limiting government funding. By cutting necessary funding, Republicans hoped that this would force cooperation between local law enforcement officials and federal law enforcement officials including ICE officers. Republican Senator Vitter who introduced the bill, argued that the violent crime that occurred in San Francisco was just one example highlighting the magnitude of compliance concerns. According to Vitter, ‘sanctuary cities’ like San Francisco have repeatedly refused to comply with orders of detainment issued by the Department of Homeland Security. Prior to the vote, the White House had warned Senate Republicans that if the bill did pass with the 60 necessary votes, they could expect the President to veto the bill. Although the bill was criticized by Democrats for stereotyping undocumented immigrants and making sweeping allegations against the undocumented immigrant community, the bill raises serious competence and compliance concerns.

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On Monday May 4, 2015 a federal appeals court heard arguments in the case Joseph Arpaio v. Barack Obama, et al, U.S. Court of Appeals for the District of Columbia Circuit, No. 14-5325. Back in November of 2014 in the wake of Obama’s executive actions, Maricopa County Sheriff Joe Arpaio sued President Barack Obama shortly after he announced his executive order extending Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)—a plan which would shield over 4.7 million eligible undocumented immigrants from removal proceedings. Arpaio along with 26 other states sued the administration claiming that the president had overstepped his executive power and that the executive actions were unconstitutional.

In the Arpaio case, two out of the three presiding judges from the District of Columbia ruled that Arpaio did not have standing to sue and that he had failed to prove that he was directly harmed by the executive actions. Arpaio had previously claimed that the executive actions directly harmed him because criminals would not be deported as a result of Obama’s executive actions. However, eligible recipients of extended DACA and DAPA would be required to demonstrate strong ties to the United States by providing documented evidence of their continuous residence in the United States, have no criminal record, and/or have U.S. born children.

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On Monday February 16, 2015 Judge Andrew Hanen of the U.S. District Court in Brownsville, Texas issued a preliminary injunction temporarily preventing President Obama’s executive actions on immigration (expanded deferred action) from going forward. The injunction does not make Obama’s executive actions illegal, however it does prevent the Obama administration from implementing expanded DACA and DAPA until the courts determine the constitutionality of the executive actions announced by Obama on November 20, 2014. According to Judge Hanen, 26 states brought the suit to his attention, all of whom he determined had standing to sue. A lawsuit against President Obama is expected to move its way through the court system in the coming months. The injunction claims that the President lacks the constitutional power to make such executive actions. As a result of the injunction, USCIS will no longer accept applications for DACA on February 18th the date that USCIS initially announced it would begin to accept applications. Additionally, plans to accept requests for DAPA will be suspended until further notice.

The Secretary of Homeland Security, Jeh Johnson announced that while he disagreed with the injunction, that the Department of Homeland Security would be forced to comply. Nevertheless, the Department of Justice plans to appeal on behalf of the federal government.

Will the court order affect existing DACA?

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Father Holding Daughter's Hand

What is DAPA? DAPA allows eligible applicants, who do not have a criminal history, and who do not otherwise pose a threat to national security, to request deferred action having met certain conditions for a period of up to three years. DAPA allows parents of US Citizen or lawful permanent resident children to be granted an employment authorization card. DAPA also safeguards individuals against deportation.

To qualify under Obama’s executive action, an undocumented parent of a U.S. Citizen or lawful permanent resident child must meet the following conditions:

  • The applicant must have lived in the United States continuously since January 01, 2010 to the present
  • The applicant must have had a son or daughter on November 20, 2014 irrespective of age or marital status, who is either a US Citizen or lawful permanent resident
  • The applicant must have been physically present in the United States as of November 20, 2014, the date of President Obama’s announcement
  • The applicant must have had no lawful status on November 20, 2014, the date of President Obama’s announcement
  • The applicant must have been physically present in the United States on November 20, 2014 and at the time of requesting DAPA with USCIS

If you have been convicted of any of the following you may not be eligible for DAPA:

  • Felony
  • Misdemeanor or three or more other misdemeanors
  • Are a threat to national security
  • Are an enforcement priority for removal

When Can I Apply? Currently applications are not being accepted, however USCIS has indicated that requests for DAPA will begin to be accepted in mid to late May of this year.

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This week the White House announced that President Obama’s executive action on immigration could stimulate California’s economy as much as $27.5 billion. According to White House advisor Cecilia Muñoz, the executive action could potentially increase wages and productivity in one of the country’s largest economies. The White House Council of Economic Advisors estimates the executive action could raise the country’s gross domestic product up to a figure of $90 billion over the next ten years.

This is not surprising given that Obama’s executive action will allow eligible applicant’s to receive employment authorization cards, thereby expanding the labor force and allowing immigrants the flexibility of seeking new jobs that were not previously available to them. A young, vibrant, employed immigrant population is sure to spark innovation and entrepreneurship at a rate that was not previously available with the restrictive DACA program. The order will allow some foreign workers who are occupying high-skilled fields the ability to benefit from employment portability while awaiting their permanent residency status. The acquisition of work permits will allow eligible immigrants to obtain better paying jobs. Higher incomes would result in greater expenditures and therefore a higher amount of taxes paid.

An analysis published by the President’s Council of Economic Advisers (CEA) revealed that the executive actions on immigration would boost economic output by an estimated figure of 0.4 to 0.9 percent over a period of time years, increasing the country’s GDP from $90 billion to $210 billion by 2024. By allowing foreign workers to come out of the shadows, the productivity of the American workforce as a whole will increase, since workers will find jobs that are best suited to their skills and potential. The White House contends that this labor shift will also allow native workers to specialize in jobs that are best suited to their skills and ability. Altogether, greater productivity and a larger workforce will result in: wage increases for all workers, increased tax revenues, and a reduction of the deficit. The analysis makes the claim that the executive actions would not adversely affect employment options for native workers. To read the complete publication please click here.

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What is President Obama’s Executive Action?

It is not a path to permanent residency. It is not a permanent solution. It is not an option for felons, undocumented individuals with criminal histories, inadmissibility issues, and recent border crossers. In fact, recent border crossers will be made a priority for deportation under the order. The order also makes border security a number one priority, increasing the chances of apprehension for recent border crossers. If you commit fraud by knowingly misrepresenting or failing to disclose the facts, you may be subject to prosecution or removal from the United States. Always be truthful and careful when presenting information and documentation to USCIS. Eligible immigrants must demonstrate that they have resided in the United States continuously for a period of at least five years. Only immigrants who have been living in the United States for at least five years are allowed to reap the benefits under the executive action. The order grants eligible individuals a temporary status allowing applicants to remain in the United States legally without fear of deportation.

Eligible individuals must be either:

  • A parent of a U.S. Citizen or lawful permanent resident as of the date of the President’s announcement of November 20, 2014, have been residing in the United States continuously for at least five years (beginning on January 01, 2010), must not be an enforcement priority, and not have inadmissibility issues

OR

  • Individuals who arrived in the United States before turning 16 years old and who can prove that they have continuously resided in the United States for at least five years (beginning on January 01, 2010) regardless of their age today. Applicants must not be an enforcement priority and not have inadmissibility issues.

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Capitol
Today, January 14, 2015 the Republican-led House of Representatives made their first step toward attempting to dismantle major provisions of Obama’s executive order, an order which will make millions of undocumented immigrant’s eligible for employment authorization and will prioritize deportations based on criminal history. For those who believe all Republicans will be supporting the vote, think again. Many republicans have voiced their concern in the House, fearing that the GOP will have to endure backlash from the immigrant and more liberal population for many years to come. Democrats have said that they will filibuster the bill, while some reluctant Republicans plan on joining the ranks of the opposition. It is very unlikely that there will be enough votes, for the bill to gain momentum, and of course Obama will not be giving his support by signing the bill. The existence of the bill indicates that there is a lack of consensus between Republicans and Democrats as to what comprehensive immigration reform will look like and how far each party is willing to push the envelope.

The majority of Republicans simply do not believe the order is within the purview of Obama’s executive powers and do not want the President overstepping his boundaries. The bill however is helpful in that it has stimulated much debate between the parties which is exactly what is needed to bring about bipartisan support for comprehensive immigration reform. The House will be discussing the budget it will appropriate to the Department of Homeland Security, which will run out of congressional funding at the end of February. Congress can use the power of the purse to their benefit and withhold financing, in opposition of Obama’s executive order.

All in all, 26 House Republicans voted in opposition to an amendment that would end Obama’s 2012 executive order which allowed undocumented immigrant children, known as Dreamers, to stay in the country legally. The amendment passed 218 to 209, all votes from Republicans. The funding bill for the Department of Homeland Security passed 236 to 191. Further amendments of the bill are expected. What is clear: Republicans are making their voice heard. We will keep you updated on the final outcome in the coming months.

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