Articles Posted in Immigration News

Published on:

Dream ActivistJust over five years ago, President Obama announced the Deferred Action for Childhood Arrivals (DACA) program, which allowed certain undocumented immigrants who had been brought to the United States as children to remain here. The idea behind the program was that people brought here as children, who had no say in the matter, and who have demonstrated commitment to certain ideals deemed particularly American, should be allowed to remain in the country they call home. The creation of DACA occurred after Congress had failed multiple times to pass legislation addressing this issue, known as the DREAM Act. Since DACA began in 2012, around 800,000 people have benefited. In early September 2017, however, the new White House administration announced plans to terminate the program. This would leave hundreds of thousands of people vulnerable to loss of work authorization and possible deportation. Multiple states have filed suit to challenge the termination of the program, and they have been joined by a group of DACA beneficiaries in Garcia, et al. v. United States, et al., No. 3:17-cv-05380, complaint (N.D. Cal., Sep. 18, 2017).

President Obama first announced DACA on June 15, 2012. At that time, Congress had considered but not enacted the Development, Relief, and Education for Alien Minors (DREAM) Act three times. In order to qualify for DACA protection, applicants had to have entered the U.S. as children and have been present in this country for at least five years. They must not have a felony criminal record, and they must have either attended college or served in the U.S. military. DACA status was initially valid for two years, and it has been subject to renewal several times. DACA beneficiaries are also eligible for work authorization.

On September 5, 2017, the White House announced that it would end the DACA program after a six-month period. The announcement included a request to Congress to enact legislation making DACA protections a formal part of federal immigration law. Senator Richard Durbin (D-IL) re-introduced the DREAM Act shortly afterwards, but if Congress does not act by March 2018, hundreds of thousands of DACA recipients—often known as “Dreamers”—could face deportation.

Published on:

Bald Eagle PortraitThe future of immigration law in the U.S. is, to put it as simply as possible, uncertain at the moment. The White House has expressed interest in reducing the total number of immigrants allowed into the country, and it has stepped up immigration enforcement to an even greater degree than the previous administration. In this environment, immigrants living in the U.S. seem to be stepping up their own efforts to claim whichever benefits may be available to them under current immigration laws. U.S. Citizenship and Immigration Services (USCIS) has reportedly seen an increase in the number of naturalization applications that it has received in recent months. Immigrants in the New Jersey and New York areas, including lawful permanent residents, nonimmigrant visa holders, and others, should be aware of their status and their rights under federal immigration law.

The Naturalization Process

“Naturalization” allows an immigrant to become a citizen of the United States, with almost all of the rights and obligations associated with that status. An individual begins the process of becoming naturalized by filing Form N-400 with USCIS. The general eligibility criteria for naturalization can be broadly divided into three groups:  age and immigration status, residence, and education and character. An applicant must be at least 18 years old as of the date they file their N-400, and they must have held lawful permanent resident status (i.e., a “green card”) for at least five years.

Published on:

Supreme CourtThe Immigration and Nationality Act (INA) provides that almost anyone born within the territorial jurisdiction of the United States is a U.S. citizen by birth, also known as “birthright citizenship.” Individuals who were born outside the U.S. may be eligible to claim birthright citizenship if at least one parent was a U.S. citizen who meets certain residency requirements. If an individual was born outside the U.S. to an unwed U.S. citizen parent, more stringent residency requirements apply, but only if the father is the U.S. citizen. A man born in the Dominican Republic to unwed parents, with a U.S. citizen father, challenged the constitutionality of this provision. The U.S. Supreme Court ruled that it violates the Equal Protection Clause of the Fifth Amendment, although the court’s solution was ultimately not beneficial to the respondent. Sessions v. Morales-Santana, 582 U.S. ___ (2017).

If a person’s mother was a U.S. citizen at the time of their birth outside the U.S. and was not married to their father, they are a citizen by birth as long as the mother had at least one year of continuous physical presence in the U.S. before the birth. 8 U.S.C. § 1409(c). The standard is very different, however, if the father was a U.S. citizen, the mother was not, and they were not married. In order for the person to have birthright citizenship, the father must have “a blood relationship [with the person] established by clear and convincing evidence,” must have “agreed in writing to provide financial support for the person” during their childhood, and must have acknowledged paternity or been adjudicated to be the father prior to the person’s 18th birthday. Id. at § 1409(a).

The respondent in Morales-Santana challenged a deportation order, arguing in part that § 1409(a) was unconstitutional because it discriminated against individuals born to unwed U.S. citizen fathers. He was born in the Dominican Republic to a U.S. citizen father who met all but one of the statutory requirements, missing the five years of U.S. residency by only 20 days. The Second Circuit Court of Appeals ruled that this part of the statute was unconstitutional, distinguishing the case from prior rulings affirming its constitutionality. See, e.g. Miller v. Albright, 523 U.S. 420 (1998).

Continue Reading

Published on:

Residency PaperworkThe future of the H-1B specialty worker visa program has been uncertain since the new presidential administration took over in January 2017. The White House formally addressed the program for the first time in an executive order (EO) issued in April. EO 13788 of April 18, 2017, 82 Fed. Reg. 18837 (Apr. 21, 2017). The EO, entitled “Buy American and Hire American,” directs the federal government to purchase products manufactured in the United States and to hire American workers whenever possible. It also directs certain cabinet departments to review immigration regulations, including the H-1B program, and possibly to revise its rules and guidance in order “to protect the interests of United States workers in the administration of our immigration system.” EO 13788 § 5(a), 82 Fed. Reg. 18838. It provides no specific guidelines with regard to the H-1B program, although the language of the EO suggests that the administration does not intend to eliminate the program entirely, as some have feared.

H-1B visas are available to workers in “specialty occupations.” 8 U.S.C. § 1101(a)(15)(H)(i)(b). This refers to an occupation that requires the “theoretical and practical application of a body of highly specialized knowledge,” as well as at least a bachelor’s degree or the equivalent in the relevant field of study. Id. at § 1184(i)(1). Additionally, the intended visa holder must have any and all required licensure for the job, if any, and must have either received the academic degree mentioned earlier or obtained enough on-the-job experience to equal the work required for a degree. Id. at § 1184(i)(2).

Both the employer and the prospective visa holder must meet eligibility criteria before the government will issue an H-1B visa. The employer must obtain a labor certification from the U.S. Department of Labor (DOL). Id. at § 1182(n)(1). This requires certifying to the DOL that the employer will pay a wage to the H-1B worker that is comparable to what it would pay to an American worker and provide the same general working conditions. The goal here is to prevent employers from driving down wages and other conditions of employment. The employer must also certify that the H-1B worker will not immediately “displace a United States worker.” Id. at § 1182(n)(1)(E).

Continue Reading

Published on:

Marbury v. MadisonAn ongoing dispute in immigration law, which has taken on new urgency since January, involves the question of whether local authorities are obligated to cooperate with federal officials on immigration enforcement. Numerous judges have ruled that the Constitution prohibits the federal government from requiring local officials to cooperate. A recent court ruling held that a local policy requiring cooperation with federal officials is unconstitutional. LaCroix v. Junior, Nos. F17-376, F17-1770, order (Fla. 11th Jud. Cir., Mar. 3, 2017). While Immigration and Customs Enforcement (ICE) and others often claim that this issue only pertains to undocumented immigrants, it actually has the potential to affect all immigrants, from people here on tourist visas to permanent residents with green cards, and many citizens as well.

The term “sanctuary cities” refers—often pejoratively—to local jurisdictions that do not cooperate with ICE to some extent. ICE often places “detainers” on individuals in local custody when it suspects them of immigration violations. The detainer directs local officials to hold the person until ICE can take custody of them, even if the person is otherwise entitled to release. Many cities and counties have stated that they will not detain people solely based on a detainer, unless ICE also presents a warrant or court order. Reasons cited by local officials include due process concerns regarding warrantless detainer requests and Tenth Amendment concerns relating to the different roles of the federal and local governments.

Legislative and executive actions have sought to penalize “sanctuary cities.” Recent court decisions have directly addressed this issue, and the U.S. Supreme Court has more broadly limited federal authority to direct local officials. In Printz v. United States, 521 U.S. 898 (1997), the court ruled that requiring local officials to perform duties reserved to the federal government—in that case, enforcing provisions of the federal Brady Handgun Violence Prevention Act—violates the Tenth Amendment. The Constitution expressly reserves authority over immigration to the federal government, U.S. Const. Art. I § 8, cl. 4, so Printz would certainly seem to apply to federal efforts to direct local officials.

Continue Reading

Published on:

Algodones sand-dune-fenceThe Deferred Action for Childhood Arrivals (DACA) program, first announced in June 2012, allows undocumented immigrants who arrived in the U.S. as children to remain here and work, provided they meet certain eligibility criteria. The purpose of the program is to focus immigration enforcement priorities away from people who contribute to American society. The status of the program under the new administration, however, remains uncertain. Some recent enforcement actions have resulted in the arrest and detention of DACA beneficiaries. One such individual has filed suit against the U.S. Department of Homeland Security (DHS) and an official of its agency, Immigration and Customs Enforcement (ICE). Ramirez Medina v. Asher, No. 2:17-cv-00218, pet. for writ of habeas corpus (W.D. Wash., Feb. 13, 2017).

DACA constitutes an agreement by the federal government to refrain from immigration enforcement actions against approved individuals for a two-year period. This was made renewable for additional two-year periods in 2014 and 2016. Beneficiaries are also granted work authorization. They are not, however, granted lawful immigration status, which is outside of the president’s authority under federal immigration law. The program attracted close to a million applications, more than 700,000 of which were approved.

To be eligible, a candidate had to be under the age of thirty-one as of June 15, 2012, and had to have entered the U.S. prior to their sixteenth birthday and before June 15, 2007. They had to be physically present in the U.S. without lawful immigration status on both June 15, 2012 and the date they applied for DACA. They could not have a felony or major misdemeanor conviction, nor more than three minor misdemeanor convictions. They had to pass a national security-related background check. Finally, they had to have a high school diploma or GED, honorable discharge from the U.S. Armed Forces, or current enrollment in school.
Continue Reading

Published on:

US CongressWith a new administration preparing to move into the White House in January 2017, bringing with it a decidedly different take on immigration policy from the outgoing administration, it seems safe to say that the current state of immigration law in this country is uncertain. Most immigrant and nonimmigrant visa programs are based on legislation passed by Congress and implemented through rules and regulations created by the Executive Branch. Congress has allowed a short-term extension for several immigration programs through April 28, 2017, in the Further Continuing and Security Assistance Appropriations Act (FCSAAA) of 2017, Pub. L. 114-254 (Dec. 10, 2016).

The FCSAAA offers an excellent example of the complexity of both the government’s budget and its budgeting process. The bill amends the Continuing Appropriations Act (CAA) of 2017, Pub. L. 114-223, Div. C, 130 Stat. 908 (Sep. 29, 2016). That bill, in turn, authorized the appropriation of funds that Congress had already authorized in previous bills. Appropriations for immigration-related programs are mostly found in the Department of Homeland Security Appropriations Act of 2016 (DHSAA), Pub. L. 114-113, Div. F, 129 Stat. 2493 (Dec. 18, 2015). Taken together, these bills extend funding for some immigration programs, including the following.

E-Verify

Federal immigration law prohibits employers from employing anyone who is not a U.S. citizen or lawful permanent resident and who has not obtained authorization to work in the U.S. from the government. Employers must review certain documents presented by new hires to verify that they fit the criteria for work authorization, and they must maintain a record of this verification on Form I-9. Congress first provided for the creation of an electronic system employers could use to verify employment eligibility, commonly known as “E-Verify,” in legislation passed in 1996. See 8 U.S.C. § 1324a note.

Continue Reading

Published on:

George Washington BridgeThe recent presidential election has brought a massive amount of uncertainty for immigrants, prospective immigrants, their employers, and their families. The uncertainty ranges from the new president-elect’s rhetoric regarding deportations to the future of various permanent and temporary visa programs. The extent to which local governments participate in immigration enforcement potentially affects all immigrants. The U.S. Constitution gives the federal government exclusive authority over immigration, but enforcement efforts have expanded to include local law enforcement. Many local officials have pushed back in recent years, stating that they will not actively participate in federal immigration enforcement. Multiple court decisions support this position, but it remains controversial. Cities that have taken this position are often known as “sanctuary cities,” a term that can be both descriptive and pejorative, depending on the circumstances.

Part of the problem with addressing this issue is the lack of a clear definition of a “sanctuary city.” It does not mean that anyone in such a city is “safe” from immigration enforcement. At a minimum, it means that local officials will not cooperate with simple requests from a federal agency like Immigration and Customs Enforcement (ICE). Federal immigration officials routinely review county jail rosters to check for possible immigration violations, and they place “detainers” on people they believe may be undocumented or otherwise in violation of federal immigration laws.

Congress has the sole authority “to establish an uniform Rule of Naturalization.” U.S. Const. art. I, § 8, cl. 4. This means that the federal government has exclusive jurisdiction over immigration questions. Immigration proceedings are federal civil matters. Local courts therefore have no jurisdiction to adjudicate such questions with regard to inmates in their custody. A detainer amounts to a request that local law enforcement continue to hold a person beyond the time they would otherwise be released, until ICE can take custody of them. Many local officials are saying that they will not comply with such requests unless they are accompanied by additional legal authority, such as a warrant or court order.

Continue Reading

Published on:

Federal Courthouse BrooklynThe White House’s 2014 executive actions on immigration have been cause for controversy from the moment President Obama announced them almost two years ago. The Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program prompted a lawsuit by 26 state governments. A U.S. district judge in Texas issued an injunction against the program, and the Department of Homeland Security (DHS) halted the implementation of DAPA nationwide in response. A new lawsuit filed in New York, however, challenges this action by DHS. Batalla Vidal v. Baran et al., No. 1:16-cv-04756, am. complaint (E.D.N.Y., Sep. 29, 2016). The plaintiff claims that the Texas court that granted the injunction lacked the authority to bind the DHS in New York.

The White House announced DAPA on November 20, 2014. The program would be similar to the existing Deferred Action for Childhood Arrivals (DACA) program, and it would cover qualifying undocumented parents of U.S. citizens and lawful permanent residents. The program represents an agreement by the federal government not to pursue (to “defer”) immigration enforcement action against a person for a defined period of time. To be eligible, an individual must show that they are a parent of a citizen or permanent resident, that they have been continuously present in the U.S. since 2010, and that they are not an “enforcement priority” under the administration’s immigration enforcement criteria. DAPA recipients may also be eligible for work authorization.

The Texas court granted the temporary injunction in February 2015. Texas, et al., v. United States, 86 F.Supp.3d 591 (S.D. Tex. 2015). The injunction covered DAPA and expansions to DACA included in the 2014 executive actions, but it did not affect the existing DACA program. The Fifth Circuit denied a request to stay the injunction in May 2015, 787 F.3d 733 (5th Cir. 2015), and affirmed it that November, 809 F.3d 134 (5th Cir. 2015). When the case went to the Supreme Court, the death of Justice Antonin Scalia meant that only eight justices were available to hear the case, and they split 4-4. 579 U.S. ___ (2016). The Fifth Circuit’s ruling was therefore allowed to stand, but with no adjudication on a national level.

Continue Reading

Published on:

red markerUndocumented immigrants who meet certain criteria can apply for waivers allowing them to proceed with an immigrant visa petition. One type of waiver is known as a “provisional unlawful presence waiver” (PUPW). Individuals with six months to one year of accrued unlawful presence in the U.S. who voluntarily depart the U.S. are deemed inadmissible for a period of three years. A PUPW allows a person who meets these criteria to request a waiver of the three-year inadmissibility period, provided they leave the U.S. and apply to reenter at a U.S. consulate abroad. A new rule that took effect at the end of August 2016 streamlines the application process and expands eligibility for PUPWs. 81 Fed. Reg. 50243 (Jul. 29, 2016). Previously, PUPWs were only available to people seeking family-based immigrant visas. The new rule makes them available for employment-based and other visa petitions.

To qualify for a PUPW, an individual must be inadmissible under § 212(a)(9)(B)(i)(I) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(9)(B)(i)(I). This provision applies to people (1) who have been unlawfully present in the U.S. for more than 180 days but less than one year, (2) who voluntarily depart the country, either on their own or with the government’s permission under 8 U.S.C. § 1229c, (3) prior to the beginning of removal proceedings under 8 U.S.C. §§ 1225(b)(1) or 1229a.

People covered by this provision of the INA are ineligible for readmission for three years, beginning on the date they leave or are removed from the U.S. The PUPW waives the six- to 12-month period of unlawful presence, making them eligible for an immigrant visa without the three-year bar.

Continue Reading