OC Immigration Attorney

What guidelines must I meet to be considered for deferred action for childhood arrivals?

Pursuant to the Secretary’s June 15, 2012 memorandum, in order to be considered for deferred action for childhood arrivals, you must submit evidence, including support documents, showing that you:

• Were under the age of 31 as of June 15, 2012;
• Came to the United States before reaching your 16th birthday;
• Have continuously resided in the United States since June 15, 2007, up to the present time;
• Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
• Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
• Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and;
• Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

These guidelines must be met for consideration of deferred action for childhood arrivals. USCIS retains the ultimate discretion on whether deferred action is appropriate in any given case.

How old must I be in order to be considered for deferred action under this process?

• If you have never been in removal proceedings, or your proceedings have been terminated before your request for consideration of deferred action for childhood arrivals, you must be at least 15 years of age or older at the time of filing and meet the other guidelines.
• If you are in removal proceedings, have a final removal order, or have a voluntary departure order, and are not in immigration detention, you can request consideration of deferred action for childhood arrivals even if you are under the age of 15 at the time of filing and meet the other guidelines.
• In all instances, you cannot be the age of 31 or older as of June 15, 2012 to be considered for deferred action for childhood arrivals.

Does “currently in school” refer to the date on which the request for consideration of deferred action is filed?

To be considered “currently in school” under the guidelines, you must be enrolled in school on the date you submit a request for consideration of deferred action under this process.

Do brief departures from the United States interrupt the continuous residence requirement?

A brief, casual, and innocent absence from the United States will not interrupt your continuous residence. If you were absent from the United States for any period of time, your absence will be considered brief, casual, and innocent, if it was before August 15, 2012, and:

• The absence was short and reasonably calculated to accomplish the purpose for the absence;
• The absence was not because of an order of exclusion, deportation, or removal;
• The absence was not because of an order of voluntary departure, or an administrative grant of voluntary departure before you were placed in exclusion, deportation, or removal proceedings; and
• The purpose of the absence and/or your actions while outside the United States were not contrary to law.

May I travel outside of the United States before USCIS has determined whether to defer action in my case?

No. After August 15, 2012, if you travel outside of the United States, you will not be considered for deferred action under this process. If USCIS defers action in your case, you will be permitted to travel outside of the United States only if you apply for and receive advance parole from USCIS.

Any travel outside of the United States that occurred before August 15, 2012, will be assessed by USCIS to determine whether the travel qualifies as brief, casual and innocent (see above).

Note:  If you are in unlawful status and/or are currently in removal proceedings, and you leave the United States without a grant of advance parole, you will be deemed to have removed yourself and will be subject to any applicable grounds of inadmissibility if you seek to return.

If you are considering the DACA process, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you and help you better understand the process and your eligibility.

First off, I believe it is wise for all potential DACA (Deferred Action for Childhood Arrivals) beneficiaries to, at least, consult with an attorney prior to filing for DACA with USCIS. Remember that most beneficiaries are voluntarily putting themselves on USCIS’s radar by filing for DACA. This could result in consequences to the applicant and family members. There are some groups that absolutely need to consult with an attorney before filing a DACA case though:

1. If you have ever had contact with law enforcement. If a DACA beneficiary (aka DREAMer) has ever been arrested or been in court, even if the final disposition of the case was not a conviction, that person should consult an immigration attorney. Sometimes the judge will say you won’t have a record because you are a minor or you completed community service, etc. While you might not have a record in the eyes of the State of California or for employment purposes, the same is not necessarily true for federal immigration purposes. Misstating contact with law enforcement, even if accidental, can have serious consequences. As I have said many times, USCIS rarely views a misstatement as an accident. They normally regard it as a lie.
2. If you (or an immediate relative) have ever had anything filed on your behalf. Information given of prior applications or petitions needs to be reviewed by an attorney. Many people hire notarios to file applications and incorrect information is presented on the forms. Failure to register an address change can result in in absentia deportation orders that people do not learn about until years later. It is best to get these resolved prior to filing for DACA in order to avoid unexpected visits by Immigration and Customs Enforcement (ICE).
3. If you have ever left the United States. Some departures from the United States result in an interruption of the continuous residence requirement. Others do not. If you have left the United States, it is important to frame these departures as minor, incidental and non-interrupting.
4. If you have been in immigration court. If you have ever sat in a chair in front of an immigration judge, do not file a DACA case without first seeing an attorney. I meet with many potential clients and their recollection of what transpired during their immigration court proceedings is rarely accurate when compared to the record of proceeding.
5. If you have ever used a false identity, social security number or claimed to be a US citizen. These can be serious issues and you need to consult with an attorney before filing your DACA case.
6. Difficulty proving eligibility regarding entry date and continuous residence. DACA applicants bear the burden of proof, which is important to remember. To be eligible for DACA (Deferred Action for Childhood Arrivals), an applicant must prove arrival in the United States when they were under age sixteen. They must prove physical presence in the United States and being under 31 years of age on June 15, 2012. The individual must prove continuous residence for at least five years. Proving continuous residence and entry date can be difficult in some cases (not all). Although DACA is a brand new process, there are many other areas of immigration law (INA 245i, cancellation of removal) that require applicants to prove similar facts. An experienced immigration attorney will be well versed in what USCIS expects to see in order to satisfy the burden of proof.

At The Nunez Firm, we will begin filing DACA cases later this month. We understand the difficult economic times that all of us are experiencing, and we will set reasonable attorney fees that will ensure that we can give our clients the attention they deserve. If you are interested in scheduling a free consultation, contact us via email. Managing attorney Jay Nunez will personally meet with you and help you better understand the DACA process and whether you are a likely beneficiary.

About Deferred Action for Childhood Arrivals

What is deferred action?

Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. Deferred action does not confer lawful status upon an individual. In addition, although an individual whose case is deferred will not be considered to be accruing unlawful presence in the United States during the period deferred action is in effect, deferred action does not excuse individuals of previous or subsequent periods of unlawful presence.

Under existing regulations, an individual whose case has been deferred is eligible to receive employment authorization for the period of deferred action, provided he or she can demonstrate “an economic necessity for employment.” DHS can terminate or renew deferred action at any time at the agency’s discretion.

What is deferred action for childhood arrivals?

On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several key guidelines may request consideration of deferred action for a period of two years, subject to renewal, and would then be eligible for work authorization.

Individuals who can demonstrate through verifiable documentation that they meet these guidelines will be considered for deferred action. Determinations will be made on a case-by-case basis under the guidelines set forth in the Secretary of Homeland Security’s memorandum.

If my removal is deferred pursuant to the consideration of deferred action for childhood arrivals process, am I eligible for employment authorization?

Yes. Pursuant to existing regulations, if your case is deferred, you may obtain employment authorization from USCIS provided you can demonstrate an economic necessity for employment.

Does this process apply to me if I am currently in removal proceedings, have a final removal order, or have a voluntary departure order?

This process is open to any individual who can demonstrate he or she meets the guidelines for consideration, including those who have never been in removal proceedings as well as those in removal proceedings, with a final order, or with a voluntary departure order (as long as they are not in immigration detention). If you are not in immigration detention and want to affirmatively request consideration of deferred action for childhood arrivals, you must submit your request to USCIS – not ICE. If you are currently in immigration detention and believe you meet the guidelines you should not request consideration of deferred action from USCIS but should identify yourself to your detention officer or contact the ICE Office of the Public Advocate through the Office’s hotline at 1-888-351-4024 (staffed 9 a.m. – 5 p.m., Monday – Friday) or by email at EROPublicAdvocate@ice.dhs.gov.

Do I accrue unlawful presence if I have a pending request for consideration of deferred action for childhood arrivals?

You will continue to accrue unlawful presence while the request for consideration of deferred action for childhood arrivals is pending, unless you are under 18 years old at the time of the request. If you are under 18 years old at the time you submit your request but turn 18 while your request is pending with USCIS, you will not accrue unlawful presence while the request is pending. If your case is deferred, you will not accrue unlawful presence during the period of deferred action. Having action deferred on your case will not excuse previously accrued unlawful presence.

If my case is deferred, am I in lawful status for the period of deferral?

No. Although action on your case has been deferred and you do not accrue unlawful presence during the period of deferred action, deferred action does not confer any lawful status.
There is a significant difference between “unlawful presence” and “unlawful status.” Unlawful presence refers to a period an individual is present in the United States (1) without being admitted or paroled or (2) after the expiration of a period of stay authorized by the Department of Homeland Security (such as after the period of stay authorized by a visa has expired). Unlawful presence is relevant only with respect to determining whether the inadmissibility bars for unlawful presence, set forth in the Immigration and Nationality Act at Section 212(a)(9), apply to an individual if he or she departs the United States and subsequently seeks to re-enter. (These unlawful presence bars are commonly known as the 3- and 10-Year Bars.)

The fact that you are not accruing unlawful presence does not change whether you are in lawful status while you remain in the United States.  Because you lack lawful status at the time DHS defers action in your case you remain subject to all legal restrictions and prohibitions on individuals in unlawful status.

Does deferred action provide me with a path to permanent residence status or citizenship?

No. Deferred action is a form of prosecutorial discretion that does not confer lawful permanent resident status or a path to citizenship. Only the Congress, acting through its legislative authority, can confer these rights. So, write your congressperson and demand that they pass The Dream Act!

Will my immediate relatives or dependents be considered for deferred action for childhood arrivals?

No. The new process is open only to those who satisfy the guidelines. As such, immediate relatives, including dependents of individuals whose cases are deferred pursuant to the consideration of deferred action for childhood arrivals (DACA) process, may not be considered for deferred action as part of this process unless they independently satisfy the guidelines.

Can I be considered for deferred action even if I do not meet the guidelines to be considered for deferred action for childhood arrivals?

The DACA process is only for individuals who meet the specific guidelines announced by the Secretary. Other individuals may, on a case-by-case basis, request deferred action from USCIS or ICE in certain circumstances, consistent with longstanding practice.

Will the information I share in my request for consideration of deferred action for childhood arrivals be used for immigration enforcement purposes?

Information provided in this request is protected from disclosure to U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to U.S. Immigration and Customs Enforcement under the criteria set forth in USCIS’s Notice to Appear guidance (www.uscis.gov/NTA).  Individuals whose cases are deferred pursuant to the consideration of deferred action for childhood arrivals (DACA) process will not be referred to ICE. The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of deferred action for childhood arrivals, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense. The above information sharing policy covers family members and guardians, in addition to the requestor.

This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.

Does this Administration remain committed to comprehensive immigration reform?

Yes. The Administration has consistently pressed for passage of comprehensive immigration reform, including the DREAM Act, because the President believes these steps are critical to building a 21st century immigration system that meets our nation’s economic and security needs.

Is passage of the DREAM Act still necessary in light of the new process?

Yes. The Secretary’s June 15th memorandum allowing certain people to request consideration for deferred action is the most recent in a series of steps that DHS has taken to focus its enforcement resources on the removal of individuals who pose a danger to national security or a risk to public safety. Deferred action does not provide lawful status or a pathway to citizenship. As the President has stated, individuals who would qualify for the DREAM Act deserve certainty about their status. Only the Congress, acting through its legislative authority, can confer the certainty that comes with a pathway to permanent lawful status.

If you are considering the DACA process, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you and help you better understand the process and your eligibility.

This is the question many undocumented young people are asking as the August 15th start date for the Deferred Action for Childhood Arrivals (DACA) process nears. Many people, including fellow attorneys, believe immigration law is simply filling out forms. Why would anyone hire an attorney to fill out forms?

Immigration law is not just filling out forms. It’s more akin to tax law in that it is based on regulations, statutes and ever-changing interpretations by government agencies. There are many pitfalls when filing the forms with the government. If an application or petition includes certain information, it can raise a red flag and start in motion the process of removal and court proceedings. Each question on any immigration form is included for a reason. Answering incorrectly can have substantial consequences for the applicant or applicant’s family members. From my experience, USCIS rarely regards incorrect information provided on a form as merely an error.

Many beneficiaries of DACA (Deferred Action for Childhood Arrivals) will be able to fill out the forms, which are admittedly straightforward; however, there exists a broader context to the DACA process. For example, the forms, when released on August 15th, will likely ask for certain information about family members as well. Issues of confidentiality and potential deportation risks to those family members should be considered in depth.

I cannot tell you how many times I have met with people who either began the immigration process (245i adjustment, marriage-based adjustment of status, consular processing, I-601 waiver) on their own or had a family friend help them. They filed the wrong forms or included incorrect information or suddenly were facing deportation in immigration court. The cost to hire an attorney at the outset, or at least consult with an attorney before moving forward, would have been nominal, but the costs to extricate the person from the situation afterwards, was thousands of dollars.

When you hire an experienced immigration attorney, you are buying peace of mind. You know you have someone on your side that understands the pitfalls and knows how to avoid them. While you will undoubtedly pay less to fill out the forms yourself or hire a notario to file your DACA case, sometimes the cheap gets expensive.

At The Nunez Firm, we will be filing DACA cases later this month. We intend to charge a reasonable flat rate attorney fee that is affordable and fairly compensates us for the time spent preparing the case. We are offering free consultations to help potential DACA beneficiaries better understand the process and how we can help. Managing attorney Jay Nunez will personally meet with you and answer your questions regarding the exciting new changes that are coming about in immigration law.

Washington D.C. – Today, U.S. Citizenship and Immigration Services (USCIS) released important details about the Deferred Action for Childhood Arrivals (DACA) process, which will temporarily allow some eligible youth to go to school and work without fear of deportation.

The IPC estimates that roughly 936,930 undocumented youth between the ages of 15 and 30 might immediately qualify to apply for the new program. The new report breaks down the deferred action-eligible population by nationality and age at the national and state level, as well as by congressional district.

Because potential applicants reside in all states and every congressional district, today’s announcement clarifying the application process sets the stage for an intense period of preparation around the country, as communities wait for the request form to be released on August 15. The DACA program is designed for young people who are under the age of 31; entered the United States before age 16; have resided in the country for at least five years as of June 15, 2012; have not been convicted of a felony, a “significant” misdemeanor, or three other misdemeanors; and are currently in school, graduated from high school, earned a GED, or served in the military.

Among the key points shared by USCIS:

• A new form will be available on August 15. All DACA requests will require payment of the standard $85 biometric fee, but no additional fee will be charged. Persons who wish to receive work authorization must pay, with limited exemptions, the current employment authorization document fee of $365.

• Information provided on the form will be kept confidential, including information relating to applicants’ family members or legal guardians, meaning it will not be used for immigration enforcement proceedings, unless the applicant meets current USCIS criteria for referral to Immigration and Customs Enforcement or issuance of a Notice to Appear (NTA) in immigration court.

• DHS will deem “significant” any misdemeanor, regardless of the sentence imposed, involving burglary, domestic violence, sexual abuse or exploitation, unlawful possession of firearms, driving under the influence, or drug distribution or trafficking. In addition, DHS will deem significant any other misdemeanor for which an applicant was sentenced to more than 90 days in jail, not including suspended sentences and time held pursuant to immigration detention.  Minor traffic offenses and convictions for immigration-related offenses classified as felonies or misdemeanors by state laws (e.g. Arizona SB 1070) will not be considered.

Most of the potential beneficiaries of deferred action live in large immigrant-receiving states like California and Texas, but many also reside in North Carolina, Georgia, Colorado, and Washington State, and nearly every state has a significant DREAMer population. Also, while nearly 70 percent of potential beneficiaries are from Mexico, there are significant populations from Central America, South America, the Caribbean, and Asia. In some states, such as Virginia, the population is quite diverse, with no single dominant nationality.

Knowing who the potential beneficiaries are and where they live will be critical as USCIS initiates this new program. Using this data, USCIS, as well as advocates offering assistance, can locate pockets of potential beneficiaries who may be living in geographic areas that are underserved or who may require information in languages that were unanticipated.

The Nunez Firm will begin preparing DACA cases immediately. If you are interested in scheduling a consultation, contact us. Managing attorney Jay Nunez will personally meet with you to help you better understand the DACA process and whether you are a likely beneficiary of the program.

Democrats on Capitol Hill urged the government to recognize binational same-sex relationships in deportation cases.

In a letter sent to the Department of Homeland Security, Minority Leader Nancy Pelosi (D-Calif.) and 83 Democratic members of Congress pushed the Obama administration and DHS Secretary Janet Napolitano to recognize in writing “the ties of a same-sex partner or spouse as a positive factor for discretionary relief in immigration enforcement deportation cases.”

It was the second attempt by congressional Democrats since September 2011 to persuade the Obama administration to make official what they promised last August: that gay couples would be given the same protections as straight couples in deportation cases.

“Keeping loving families together, particularly in cases in which one partner or spouse is a U.S. citizen, should be a priority for immigration enforcement,” Pelosi said in a statement. “The Department of Homeland Security has stated that their policy will positively factor in family ties, including those of LGBT couples, but we have now asked them to put this in writing to provide a measure of clarity to those enforcing our laws and confidence to families facing separation.”

Under the Defense of Marriage Act, immigrants in relationships with Americans of the same-sex are denied various protections, including eligibility for green cards, because the federal government does not recognize their relationship.

Whether it was progressive policymaking or a shrewd political move, President Barack Obama’s announcement to stop deportations for some undocumented immigrants in June was hailed as victory by immigrant rights activists. Since the 2001 introduction of the federal “DREAM Act” bill, which would grant higher education and a path to citizenship for undocumented youth, many of these youth have organized one of the strongest online and offline movements in American history. They staged sit-ins in June at Obama campaign offices around the country, putting additional pressure on the Administration and later resulted in Obama’s deferred action announcement.

This month, the Department of Homeland Security will release additional details on how to apply for the deferred action program. What we know so far is that applications will be considered on a case-by-case basis for those who meet specific criteria, such as completing education or military service, meeting a certain number of years of U.S. residency, reaching a certain age, and having a clean criminal record. Those who are granted deferred action get a guarantee that they will not be deported for two years, with an option to extend that period.

Regardless of this promise, many eligible undocumented youth still remain in danger of eventual deportation. For instance, Daniela Pelaez, a high school valedictorian from Florida, found out that she may still be deported as she prepares for her freshman year at Dartmouth College this fall, with immigration authorities promising only to hold off for two years before initiating deportation proceedings again.

The feeling that deferred action is only temporary has caused frustration among immigrant rights advocates and undocumented immigrant communities, who continue to be on alert.

Deferred action serves as only a temporary solution to our nation’s problem of undocumented immigration. Immigrant youth hesitate to apply for fear that if Obama is not re-elected, they may fall to the whims of Mitt Romney, who has vowed to veto the DREAM Act should it ever reach his desk as president.

“As it [deferred action] is a policy change, a new administration could simply reverse the policy,” Uy said. “Further, there is no guarantee as to what will happen to the families of eligible students, as the guidance does not contemplate what the government will do with the information gathered from the eligible students in their applications. As such, many students and youth are afraid to apply at this point.”

Department of Homeland Security announced eight items pertaining to the new deferred action plan:

In a change from the prior announcement, people currently in removal proceedings will use the USCIS process when it is implemented on August 15, 2012, rather than go through ICE. Only individuals in detention will go through ICE to make a deferred action request.

Information provided as part of the deferred action request process is protected from disclosure to ICE or CBP for purposes of removal proceedings unless the requestor meets the criteria of USCIS’ November 2011 NTA memo.

If a departure from the U.S. was due to removal, voluntary departure, etc., the absence was not brief, casual and innocent and would interupt the continuous residence that is required since June 15, 2007. Short absences before August 15, 2012, reasonably calculated to accomplish the purpose of the trip, would not be interuptive.

Only people who are currently not in status and were not in any lawful status on June 15, 2012 are eligible.

A “significant misdemeanor” is one for which the individual was sentenced to more than 90 days, or a conviction for domestic violence, sexual abuse, burglary, firearm violation, drug distribution or trafficking (but not possession), or DUI, regardless of the sentence.

Minor traffic offenses, such as driving without a license, are not considered misdemeanors that count toward the “3 or more” standard.

The Form I-765 will be required, along with another form that will be made available on August 14 or 15. Total fees, including biometics, will be $465. Fee waivers will not be available, but fee exemptions will be permitted in very limited circumstances, and must be requested and approved before submitting a deferred action application without a fee.

Whether a person has reached age 15, and whether the requestor meets the education requirements, will be determined as of the date the request for deferred action is filed, NOT the June 15, 2012 date.

The country’s largest privately prisons are generating huge profits as the U.S. detains more undocumented immigrants than ever, and an Associated Press review shows the businesses are spending tens of millions on lobbying and political campaigns. The Arizona law that was recently struck down by the US Supreme Court was drafted by lobbyists for the private prison industry.

The cost to American taxpayers is on track to top $2 billion for this year, and the companies are expecting their biggest cut of that yet in the next few years thanks to government plans for new facilities to house the 400,000 immigrants detained annually.

After a decade of expansion, the sprawling, private system runs detention centers everywhere from a Denver suburb to an industrial area flanking Newark’s airport, and is largely controlled by just three companies.

The growth is far from over, despite the sheer drop in illegal immigration in recent years.

In 2011, nearly half the beds in the nation’s civil detention system were in private facilities with little federal oversight, up from just 10 percent a decade ago.

The companies also have raked in cash from subsidiaries that provide health care and transportation. And they are holding more immigrants convicted of federal crimes in their privately-run prisons.

The financial boom, which has helped save some of these companies from the brink of bankruptcy, has occurred even though federal officials acknowledge privatization isn’t necessarily cheaper.

Read more: http://latino.foxnews.com/latino/news/2012/08/02/immigrants-are-big-business-for-private-prisons/#ixzz22Pd6C7ki

Republican Chuck Grassley removed a huge barrier to legislation that could speed the outdated visa system for highly skilled would be immigrants. He removed his “hold” on the proposed legislation that would ease the immense backlogs for applicants from countries like India and China, home to many highly skilled immigrants. President Obama has endorsed the bill, and ironically, so has the Republican-led U.S. House of Representatives, which passed the bill last year.

The bill, termed the Fairness for High-Skilled Immigrants Act, would remove per-country quotas on permanent work visas. Under the current system, countries like Iceland get allotted the same number of available visas as China.

The legislation would not add to the overall number of available green cards unfortunately. However, it would speed processing for skilled immigrants who now face waits of many years. While on temporary visas, they can’t change jobs or vote, and their spouses can’t work.

Grassley had been the holdout in the Senate (although there may be others lurking behind him) keeping the bill from moving forward. He wanted the Senate to take up legislation that he and Senate Majority Whip Dick Durbin have been working on for years to reform the H-1B temporary visa program.