OPTIONS TO CONSIDER WHILE WAITING FOR PRESIDENT OBAMA TO ACT ON IMMIGRATION
Much to the disappointment of immigrants and immigration reform activists, President Obama recently announced a delay in the use of executive action to solve the country’s immigration issues. On June 30, he promised that he would use executive action before the end of the summer. However, during the weekend of September 5-7, he announced that no action would be taken until after the midterm elections in November. His decision to put off taking action was influenced by potential threats faced by the Democrats in the upcoming November election. Members of Congress feared that the President acting alone on immigration could result in the loss of seats needed to maintain control of the U.S. Senate. Toxic political fallout from the huge surge of unaccompanied immigrant minors at our southern border was another factor in the President’s decision. Although many people are discouraged and angered by the announced delay, it is important for all those who could be affected by immigration reform to understand the options that Obama could provide through the use of executive action, as well as understand what remedies are already available under current U.S. immigration law and policy.
President Obama’s executive action initiatives could potentially help millions of immigrants by expanding eligibility for deferred action and Parole-in-Place. Deferred action under DACA is currently limited to individuals who, among other requirements (1) were under 31 years of age as of June 15, 2012; (2) have no legal status, (3) arrived in the United States before their 16th birthday; and (4) are currently in school, have graduated or obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States. Through executive action, the President could extend deferred action to the parents and siblings of DACA recipients and to the parents of U.S. citizen or Legal Permanent Resident children. Parole-in-Place (PIP) currently allows the immediate relatives of American citizens who are active or former members of the U.S. Armed Forces to pursue Legal Permanent Residence (a green card) in the United States without having to travel abroad to a U.S. embassy or consulate. In many cases, such travel would trigger either a 3-year bar to re-entry for those who had been unlawfully present in the United States for more than 180 days or a 10-year bar for those unlawfully present for more than 365 days. The President could expand Parole in Place to cover the immediate relatives of ALL U.S. citizens, not just those presently or formerly in the armed services.
Despite the inability of Congress to pass comprehensive immigration reform and the delay of executive action by President Obama, there are currently a number of options available to immigrants. Some of the options are discussed below:
Deferred Action for Childhood Arrivals (DACA)
Eligibility: Individuals are eligible for DACA if, they (1) were under the age of 31 as of June 15, 2012; (2) arrived in the United States before their 16th birthday; (3) have continuously resided in the United States since June 15, 2007, up to the present time; (4) were physically present in the United States on June 15, 2012, and at the time of making a request for deferred action; (5) had no lawful status on June 15, 2012; (6) are currently attending school or have graduated or obtained a General Education Development (GED) certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States; and (7) have not been convicted of a felony, significant misdemeanor, or three other misdemeanors, and do not otherwise pose a threat to national security or public safety.
Benefit: The individual will receive an Employment Authorization Document (EAD) which allows him/her to legally work in the United States for a period of two years. DACA is renewable for periods of two years subject to the discretion of the Department of Homeland Security (DHS).
Provisional Unlawful Presence Waivers
Eligibility: Individuals are eligible for provisional unlawful presence waivers if they are the spouses, parents, or children (unmarried and under the age of 21) of U.S. citizens.
Benefit: Individuals who are currently in the United States and have accumulated more than 180 days of unlawful presence and are therefore subject to the 3 year bar, or those individuals who have accumulated more than 365 days of unlawful presence and are therefore subject to the 10 year bar can apply for a waiver of these bars in the United States. If granted the waiver, they are then able to travel abroad for the processing of the immigrant visa at a U.S. embassy or consulate.
Cancellation of Removal
Eligibility: An individual could be eligible to apply for cancellation of removal during removal proceedings before an immigration judge. The eligibility requirements differ for permanent residents and non-permanent residents.
For lawful permanent residents, individuals must demonstrate that they have been legal permanent residents for five years, have resided in the United States for seven years in any status, and have never been convicted of an aggravated felony.
Benefit: Individuals who are granted Cancellation of Removal for Permanent Residents are allowed to continue living in the United States as Legal Permanent Residents.
For non-permanent residents, individuals must demonstrate that they have continuously resided in the United States for at least ten years; have maintained good moral character during that period; have not been convicted of a criminal offense that makes them inadmissible or deportable; and can demonstrate that removal would result in exceptional and extremely unusual hardship to their U.S. citizen or legal permanent resident spouse, parent, or child.
Benefit: Individuals who are granted Cancellation of Removal for Non-Permanent Residents are also granted adjustment of status to legal permanent residency.
Adjustment of Status
Eligibility: The Immigration laws permit the change of an individual's immigration status while in the United States from nonimmigrant (temporary) to immigrant (permanent) if the individual was inspected and admitted or paroled into the United States and is able to meet all required qualifications for permanent residence (green card) in a particular category (family relationship to a U.S. citizen or legal permanent resident; employment or investment, membership in a special class of self-petitioning immigration, or on a humanitarian basis).
Benefit: Individuals who are granted Adjustment of Status become Legal Permanent Residents.
This way of obtaining a green card contrasts with consular processing which is available for individuals outside the United States (or who are in the United States but are ineligible to adjust status. These individuals must first obtain a visa abroad and enter the United States as permanent residents.)
Eligibility: Individuals are eligible for U visas when they have been the victim of certain violent crimes. The individuals must demonstrate through a certification process that they were the victims of a qualifying criminal activity, that they have cooperated with the authorities in the investigation of the crime, and that they have suffered significant physical or mental harm as a consequence of the crime.
Benefit: Beneficiaries of U Visa are allowed to legally work in the United States for four years. Beneficiaries, however, may apply to become lawful permanent residents after 3 years of holding U Visa status. The U visa holder’s spouse, parents, children, and in some cases, siblings can also benefit from a U visa grant.
Violence Against Women Act (VAWA):
Eligibility: Individuals are eligible for VAWA when they have been the victims of trafficking. These individuals may self-petition for adjustment of status (green card). Also eligible to self-petition under VAWA are those persons who can demonstrate abuse at the hands of their U.S. citizen or legal permanent resident spouse or ex-spouse if the marriage ended two years prior to filing the VAWA petition. Also eligible for VAWA are the parent of a child who has been subjected to abuse by that parent’s U.S. citizen or LPR spouse; persons who are widows of a deceased U.S. citizen, and persons classified as special immigrants.
Also, VAWA can be done as a defense to removal proceedings and doesn’t require a finding by U.S. Citizenship and Immigration Services (USCIS) of abuse on Form I-360, but rather via a formal hearing with testimony.
Benefit: Usually, a person who has been granted VAWA becomes eligible for Adjustment of Status (green card).
Eligibility: Political Asylum may be granted to individuals who are currently in the United States and are seeking protection because they have suffered persecution or because they fear that they will suffer persecution due to their: race, religion, nationality, membership in a particular social group, or political opinion. An asylum seeker may include his/her spouse and children (under 21 and unmarried). However, these family members must be in the United States at the time of filing or must arrive in the United States at any time before a final decision on the asylum application is made.
Benefit: Individuals who have been granted Political Asylum are eligible for Adjustment of Status (green card) one year after the application for Political Asylum has been approved. Work authorization is granted after 150 days of filing a complete application for Political Asylum.
Special Immigrant Juvenile Status (SIJS):
Eligibility: Minors are eligible for Special Immigrant Juvenile Status when either a family court, juvenile court, or orphan’s court has determined that the minor is a dependent of the court or a ward of a state/private agency or person; the minor’s best interest is not to return to his or her country of origin; and the minor cannot be returned to the parents’ custody because of abandonment, abuse, neglect or similar circumstances. Eligible children must be under 21 years of age and must be physically present in the United States when the application is filed. Also, the law requires that the minor is not currently married, divorced (including annulment) or widowed.
Benefit: Minors who have been granted Special Immigrant Juvenile Status can apply for Adjustment of Status (green card). Minors who have been granted adjustment of status through this form of relief may never petition for a green card for their parents and may file petitions for their brothers and sisters only after they become U.S. citizens.
While most of the above applications are pending, a person may become eligible for a work permit, called an Employment Authorization Document (EAD). However, the rules are tricky and vary. Moreover, many of their dependents can benefit. And in the case of a U visa, both parents and siblings, in some circumstances, become eligible for the EAD and the actual benefit too.
The information above is intended as a basic introduction to some of the options currently available to immigrants and their families. More detailed information is available on our website. Our office has extensive experience in all areas of Immigration Law. We offer consultations to help you to weigh the many options available under current immigration law.
We are hopeful that immigration reform will occur after the coming midterm elections either through congressional action or through President Obama’s executive action. As always, we will keep abreast of any changes in immigration policy and will give information and advice on developments that may affect your particular immigration issues. There are no guarantees as to what actions Congress or President Obama will take. Do not let yourself by misled by anyone claiming they know what actions will be taken.
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