Archive | CIS RSS feed for this section

Federal Court Victory for Hospital Staffing Services Company

10 Dec

hospital

Just beforeTKR Thanksgiving, we filed suit in federal district court against U.S. Citizenship and Immigration Services (USCIS) on behalf of a hospital staffing services company. Our lawsuit challenged the agency’s denial of an H-1B specialty occupation visa to a foreign physician whom the company sought to employ to care for patients in a low-income, medically underserved area. This is a story of why litigation matters, and why suing the government is sometimes the only way to achieve a just outcome. Last Friday, a mere fourteen days after the lawsuit was filed, USCIS reopened the case, reconsidered its prior denial, and approved the H-1B visa. The company will get its physician, the physician will get to stay in the U.S. and continue his work in internal medicine, and the residents of the medically underserved area will be afforded the quality medical care they so desperately need. But there’s more to the story …

Many communities throughout the U.S. lack sufficient, quality health care services. Their local hospitals are not sufficiently staffed and the specialties and expertise that many patients require are simply unavailable. Thus, certain regions of the country are designated by the federal government as health professional shortage areas, because they struggle to attract qualified doctors and nurses who are willing to live and work in often rural areas where the residents may be poor or low-income. In an effort to meet this need, Congress passed a law whereby foreign physicians who would otherwise have to leave the U.S. upon completion of their residency – and remain outside the country for at least two years – can waive this Physicianrequirement by committing to spend three years in a health professional shortage area. The program makes sense – patients in medically underserved communities get a qualified, committed physician and the foreign doctor avoids a two-year exile from the United States.

The physician whom our client sought to employ is typical of those who benefit from the program. After completing his residency at a U.S. hospital, he was granted a waiver of the two-year home residency requirement in exchange for his agreement to serve in one of the state’s health professional shortage areas. He was offered a position as an internal medicine physician by the hospital staffing services company, which then filed a petition for an H-1B visa on his behalf. Everything appeared to be in order and it seemed only a matter of time before the visa would be issued. But the immigration service had other ideas.

Rather than approve a straightforward petition filed by a company that had never before been denied an H-1B visa, USCIS issued a lengthy request for additional evidence (RFE), questioning the nature of the job of the viability of the petitioner. The company promptly submitted a detailed response. The agency then issued a second RFE, asking for yet more information and documentation – all of which had previously been provided. Once again, the company filed a thorough response and gave the agency everything it asked for. But USCIS was not convinced, and issued a lengthy decision denying the H-1B petition – based on a purported (and insignificant) discrepancy that had not been raised in either of the RFEs. Remarkably, the agency expressed doubt that the company had made a “credible offer of employment as an Internal Medicine Physician.”

At this point, we were contacted by the attorney who represented the company before USCIS. She knew the agency’s decision was wrong and sought our help in overcoming the denial. Once we’d reviewed the decision and the underlying materials, we agreed, and proposed that litigation in federal court – rather than a protracted administrative appeal – was the best course. The company agreed, so we filed suit challenging the agency’s decision under the Administrative Procedure Act (APA) as arbitrary, capricious, contrary to law and past agency practice, and unsupported by substantial evidence. We described the merits of the petition and detailed the hardships visited upon the company, the physician, and the medically underserved community impacted by the loss of a qualified doctor. To fast-track the case, we also filed a motion for preliminary injunction, asking the Court to enjoin USCIS from its erroneous decision and order the agency to issue the visa.

And it worked. Our litigation forced the agency to reexamine the petition and consider whether its myopic decision could withstand the scrutiny of a federal judge. Just two weeks after the case was filed – and one week before a scheduled court hearing – USCIS reopened the case on its own motion and granted the H-1B petition. Today, instead of packing his bags and preparing his family for an early and unexpected departure from the United States, the physician will go to work in a community in dire need of his services. Suing the government isn’t always the best option, but sometimes it’s the only strategy that works.

EXECUTIVE REFORMS TO IMMIGRATION: Top Six Changes

1 Dec

immigration_reform

The President’s executive reforms to the U.S. immigration system make a number of very positive changes that have the potential to help millions of people.  Although we have written about various components of the reforms individually, we have summarized six major portions here in one place.

Benach Ragland will be offering several free community meetings throughout December and will be offering reduced fee consultations for people who may benefit from these reforms.  To get the latest information about where we will be, please “like” us on Facebook and follow us on Twitter: @benachragland.  To schedule a reduced fee consultation, please email: consult@benachragland.com or call 202-644-8600.

  • Deferred Action for the Parents of U.S. Citizens and Permanent Residents

The centerpiece of the President’s immigration reforms announced yesterday is the expansion of deferred action to cover certain foreign national parents of United States citizens. Here are the details:

The U.S. Citizenship & Immigration Service will give deferred action and employment authorization to individuals who:

  • As of November 20, 2014, have a son or daughter who is a United States citizen or lawful permanent resident.
  • Entered the U.S. prior to January 1, 2010
  • Are not in lawful status as of November 20, 2014
  • Are not an enforcement priority
  • Do not present other factors that weigh against a favorable exercise of discretion

People who fall within the DHS’ new enforcement priorities will be ineligible for deferred action.  With a new memo issued today, Nobama immigration reformovember 20, 2014, the DHS has revised the enforcement priorities for the agency.  The new enforcement priorities are divided into three levels of priority of decreasing priority.  Presumably, those not within the enforcement priorities memo are not enforcement priorities and should qualify for benefits and not be subject to efforts to seek removal. We have summarized the new enforcement priorities memo here.

Applicants will be required to provide fingerprints and undergo national security and criminal background checks.  The filing fee will be $465.  CIS has been directed to begin accepting applications no later than 180 days from the date of the announcement (May 19, 2015).  Work permits will be valid for three years and individuals granted deferred action can also seek advance parole to travel internationally.

  • Expanded eligibility for Deferred Action for Childhood Arrivals (DACA)

Another significant development coming out of the Presidential reforms announced yesterday is the expansion of DACA beyond its original parameters established in 2012.  For descriptions of the original DACA requirements, please see here. 

The executive reforms announced yesterday make the following reforms to the DACA program:

  • The date of entry for DACA eligibility has been changed from June 15, 2007 to January 1, 2010.  Individuals who entered the U.S. prior to their 16th birthday and prior to January 1, 2010 can qualify for DACA under the revised guidelines.
  • The age cap has been eliminated.  Originally, DACA was limited to individuals under 31 years of age as of June 15, 2012.  The upper age limit has been eliminated and those who entered the U.S. before January 1, 2010 and were under the age of 16 will qualify regardless of their current age.
  • DACA work authorization will now be valid for three years as opposed to two.

These reforms will be implemented within 90 days. The other DACA requirements regarding education and criminal issues remain unchanged.  The new parole provisions should also assist DACA grantees.

  • The New Enforcement Priorities Memo

s1.reutersmedia.netAs part of the executive actions reforms announced by the administration yesterday, the administration has redefined the enforcement priorities for Immigration & Customs Enforcement.  Briefly, any law enforcement agency with limited resources can not realistically enforce the law against everyone who may have broken it.  Law enforcement agencies must pick and choose how to allocate their limited resources and where to expend their efforts.  The new enforcement priorities memo provides very clear guidance to ICE as to who their efforts ought to be focused upon.  Groups of people have been classified into three priorities for enforcement, in declining orders of priority.  Individuals not within this memo are, presumably, not priorities, and should be eligible for benefits and not subjected to enforcement actions like detention and removal.  The three classes of priority are as follows:

Priority 1 (Most serious)

  • individuals suspected of terrorism, espionage or who are otherwise a threat to national security
  • individuals apprehended at the border while trying to enter the country illegally
  • individuals involved in gangs or gang activity
  • individuals convicted of a felony unless the essential element of the offense is the individual’s immigration status
  • individuals convicted of an aggravated felony

Priority 2 (Medium serious)

  • individuals convicted of three or more misdemeanors, not including traffic offenses or offenses where an essential element is the individual’s immigration status
  • individuals convicted of a “significant misdemeanor”, which is defined as: an offense of domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug trafficking or distribution, driving under the influence, or any offense not included above for which the individual was sentenced to 90 days or more in custody (unlike in most immigration situations, a suspended sentence does not count)
  • those who have entered the U.S. unlawfully after January 1, 2014
  • significant visa or visa waiver abusers

Priority 3 (Less serious)

  • Individuals with a final order of removal entered after January 1, 2014, unless there are other factors that suggest that the individual should not be a priority for enforcement.

Once again, presumably, an individual not on any of these lists should not be considered a priority for removal and ICE is directed not to expend resources of seeking their detention and removal.  We will be watching ICE to see how the agents in the field respond to these revised priorities.

  • Clarifications and increased use of Advance Parole

Another positive change to the immigration laws announced last night is the Secretary of Homeland Security’s instruction that DHS counsel should prepare a legal memorandum forthcoming that departures pursuant to advance parole will not trigger the three and ten year bars.  This memo is to ensure that all departures on advance parole are treated consistently across the country for unlawful presence purposes.

Individuals who have been unlawfully present in the U.S. for more than 180 days who then depart the U.S. are subject to a three year bar on returning.  Individuals with a year or more of unlawful presence face a ten year bar after departure.  In Matter of Arrabally and Yerabelly, 25 I.&N. Dec. 771 (BIA 2012), the Board of Immigration Appeals ruled that individuals who deAPparted on an advance parole granted due to a pending application for adjustment of status have not made a “departure” for purposes of triggering the three or ten year bars.  while this was a welcome decision, there was confusion and disagreement whether this applied to all departures on advance parole or only to those who departed on advance parole issued to applicants for adjustment of status.  For example, DACA recipients can get advance parole and it was unclear whether their departure would subject them to a bar to return due to unlawful presence they may have accrued prior to DACA’s existence.

The new memo is to clarify that any departure from the U.S. under advance parole no matter why that parole was granted would not be considered a departure for purposes of triggering the three and ten year bars.  This means that people with advance parole, perhaps as a result of DACA, or through the new “DAP” program, for parents of U.S. citizens, will be able travel to visit family abroad without having to lose everything they have achieved in the U.S.

  • Expansion of the Provisional Waiver

Another positive development is the proposed expansion of the provisional waiver program, which the President initiated in 2013.  The provisional waiver, as initially introduced allowed the spouses and children of U.S. citizens to seek a waiver of inadmissibility for the three and ten year bars due to unlawful presence to seek a waiver in the U.S. rather than after proceeding abroad to seek a visa at a U.S. consulate abroad.  This program has been successful and we have had several provisional waivers approved and been lucky to witness reunions made possible by the provisional waiver.

The provisional waiver was initially limited only to spouses and children of American citizens.  The new memo instructs CIS to “expand access to the provisional waiver to all statutorily eligible classes of relative for whom an immigrant visa is immediately available.”  This will clearly include the spouses and children of permanent residents, but could also potentially include a larger group of  individuals such as the adult sons and daughters of U.S. citizens.

Also, for tremendous significance, the Secretary of Homeland Security has directed the CIS to “clarify the factors that are considered by adjudicators in determining whether the “extreme hardship” standard has been met.  Most importantly, the Secretary has directed CIS to consider whether a legal presumption of extreme hardship may be determined to exist.  The creation of the presumption of hardship would reduce the burden on applicants seeking to show extreme hardship.  We particularly love this idea, because we suggested it here while pointing out the legal authority for such a move. 

  • Parole in Place for family members of those seeking to enlist in the military

The package of reforms introduced by the President includes new policies on the U.S. of parole-in-place or deferred action for the family members of those seeking to enlist in the military.Military

Parole in place is a function of the Department’s discretionary authority to parole anyone into the U.S.  Parole in place is a mechanism to allow the Secretary of Homeland Security to parole an individual into the U.S., providing that individual with legal status and the ability to seek adjustment of status.  Recently, the government has used parole in place to allow the undocumented spouses, parents and children of Servicemembers, including Veterans, to adjust status We discussed this process here in August.

The new policy builds on this use of parole in place.  The Secretary of Homeland Security has instructed the CIS to work with the Department of Defense to “address the availability of parole in place and deferred action to the spouse, parent or child of a U.S. citizen or resident who seeks to enlist in the armed forces.

The “seeks to enlist” criteria is a major expansion of this authority and may provide residence to the close family members of those who want to join the military.

These reforms present many exciting opportunities for immigrants. In connection with other parts of the law, it may be possible to achieve more than a work permit.  We are excited about the possibilities for so many immigrants and look forward to the chance to serve you.

 

EXECUTIVE REFORMS: Families of U.S. Armed Forces Members and Enlistees

23 Nov

MilitaryThe package of reforms introduced by the President includes new policies on the U.S. of parole-in-place or deferred action for the family members of those seeking to enlist in the military.

Parole in place is a function of the Department’s discretionary authority to parole anyone into the U.S.  Parole in place is a mechanism to allow the Secretary of Homeland Security to parole an individual into the U.S., providing that individual with legal status and the ability to seek adjustment of status.  Recently, the government has used parole in place to allow the undocumented spouses, parents and children of  Servicemembers, including Veterans, to adjust status We discussed this process here in August.

The new policy builds on this use of parole in place.  The Secretary of Homeland Security has instructed the CIS to work with the Department of Defense to “address the availability of parole in place and deferred action to the spouse, parent or child of a U.S. citizen or resident who seeks to enlist in the armed forces.

The “seeks to enlist” criteria is a major expansion of this authority and may provide residence to the close family members of those who want to join the military.

Benach Ragland is offering reduced fee consultations for individuals who may be covered by any of these reforms.  To schedule an appointment, please call 202-644-8600 or email msanchez@benachragland.com.  You can learn the latest news on this blog, on our Facebook page and can follow us on Twitter: @BenachRagland.

EXECUTIVE REFORMS: Expansion of I-601A Provisional Waiver Program

23 Nov

Another positive development included in the President’s administrative reforms to U.S. immigration laws is the proposed expansion of the provisional waiver program, which the President initiated in 2013.  The provisional waiver, as initially introduced allowed the spouses and children of U.S. citizens to seek a waiver of inadmissibility for the three and ten year bars due to unlawful presence to seek a waiver in the U.S. rather than after proceeding abroad to seek a visa at a U.S. consulate abroad.  This program has been successful and we have had several provisional waivers approved and been lucky to witness reunions made possible by the provisional waiver.

The provisional waiver was initially limited only to spouses and children of American citizens.  The new memo instructs CIS to “expand access to the provisional waiver to all statutorily eligible classes of relative for whom an immigrant visa is immediately available.”  This will clearly include the spouses and children of permanent residents, but could also potentially include a larger group of  individuals such as the adult sons and daughters of U.S. citizens.

Also, for tremendous significance, the Secretary of Homeland Security has directed the CIS to “clarify the factors that are considered by adjudicators in determining whether the “extreme hardship” standard has been met.  Most importantly, the Secretary has directed CIS to consider whether a legal presumption of extreme hardship may be determined to exist.  The creation of the presumption of hardship would reduce the burden on applicants seeking to show extreme hardship.  We particularly love this idea, because we suggested it here while pointing out the legal authority for such a move. 

Benach Ragland is offering reduced fee consultations for individuals who may be covered by any of these reforms.  To schedule an appointment, please call 202-644-8600 or email msanchez@benachragland.com.  You can learn the latest news on this blog, on our Facebook page and can follow us on Twitter: @BenachRagland.

EXECUTIVE REFORMS: Deferred Action for the Parents of U.S. Citizens and Residents

21 Nov

As Joe Biden once said, this is a “big f’in’ deal.”

The centerpiece of the President’s immigration reforms announced yesterday is the expansion of deferred action to cover certain foreign national parents of United States citizens. Here are the details:

The U.S. Citizenship & Immigration Service will give deferred action and employment authorization to individuals who

  • As of November 20, 2014, have a son or daughter who is a United States citizen or lawful permanent resident.
  • Entered the U.S. prior to January 1, 2010.
  • Are not in lawful status as of November 20, 2014
  • Are not an enforcement priority
  • Do not present other factors that weigh against a favorable exercise of discretion

People who fall within the DHS’ new enforcement priorities will be ineligible for deferred action.  With a new memo issued today, November 20, 2014, the DHS has revised the enforcement priorities for the agency.  The new enforcement priorities are divided into three levels of priority of decreasing priority.  Presumably, those not within the enforcement priorities memo are not enforcement priorities and should qualify for benefits and not be subject to efforts to seek removal. We have summarized the new enforcement priorities memo here.

Applicants will be required to provide fingerprints and undergo national security and criminal background checks.  The filing fee will be $465.  CIS has been directed to begin accepting applications no later than 180 days from the date of the announcement (May 19, 2015).

Over the coming weeks, Benach Ragland will hold reduced fee consultations for those who think they may qualify under this program.  We will also be holding free information sessions at community centers in the greater Washington metropolitan area.  For the latest information, please like us on Facebook and follow us on Twitter @BenachRagland.  To schedule a reduced fee consultation, please call 202-644-8600 or email msanchez@benachragland.com.

President to Announce Executive Actions on Immigration

19 Nov

Obama

Tomorrow night (Thursday, November 20, 2014) at 8PM, the President of the United States will address the nation to announce what steps his administration intends to take to reform U.S. immigration law and policy.  This announcement represents the culmination of the President’s evolution on his authority as the nation’s chief executive.  In June 2014, when it became clear that the House of Representatives would not take up the immigration reform bill passed by the Senate, the President made a statement that he would take administrative action to ameliorate the harsh effects of our immigration law.  He said that he would take such action by the end of the summer.  However, as summer ended, desperate Democratic Senators in tight re-election races persuaded the President to hold off on his administrative reforms in the hopes that they could retain their seats.  However, the President’s forbearance did not help them- they lost anyway- and the President immediately reaffirmed his intention to “go as far as he can go under the law,” according to his adviser Cecilia Muñoz.  After a week of speculation, the President confirmed today that he will release the details of his immigration reform plans tomorrow night with a televised address from the White House, followed up by a rally in Las Vegas.  Details will not be known until tomorrow, but here is what has been reported most commonly:

  • The President plans to offer deferred action to the foreign national parents of U.S. citizen and permanent resident children who have been here for five years and have been law-abiding.
  • Reports indicate that the administration will make changes to how employment based visas are counted to reduce backlogs for needed workers.
  • The adminsitration will expand DACA to include young people who entered before 2010, as opposed to 2007, and eliminate the upper age limit for DACA.
  • Reports indicate that the plan DOES NOT provide deferred action to the parents of DACA recipients who have no citizen or resident children.
  • The program is reported to end Secure Communities, a disaster of a program.

These are the details that have been reported.  The plan may be different and we will now know until the formal announcements are made.  However, the provisions mentioned above, are the most commonly and consistently reported details.

What is deferred action?

Deferred action is a tool of law enforcement which allows an agency to define its priorities and focus its resources on its priorities.  It is a formal statement by the agency that a particular individual is not an enforcement priority and that the immigration agency will not utilize its limited resources to seek removal of that individual.

Is it residence?

No.  It is a temporary and revokable classification of convenience to the agency.  It does not provide an individual with residence or any promise of future residence.  It can be revoked at the discretion of the agency.  For example, a new administration could choose to eliminate the entire program.

Is this legal?

Almost certainly.  The Immigration & Nationality Act has provided the executive branch with wide latitude as to how it enforces the laws.  There are sizable gaps in the statutes passed by Congress that require the executive agencies to exercise their discretion about how they intend to enforce the immigration laws.   This discretion has been recognized by the Supreme Court in Arizona v. United States, where the Court wrote “A principal feature of the removal system is the broad discretion exercised by immigration officials.  . . .  Federal officials, as an initial matter must decide whether it makes sense to pursue removal at all.”  This broad discretion was also noted by the Supreme Court fifteen years ago in Reno v. America-Arab Anti-Discrimination Committee, where the Court wrote, “At each stage, the Executive has discretion to abandon the endeavor [referring to the removal process] and at the time the Illegal Immigration reform and Immigrant Responsibility Act of 1996 was enacted the INS had been engaging in a regular practice (which had come to be known as ‘deferred action’) of exercising that discretion for humanitarian reasons or simply for its own convenience.”

How are Republicans going to react?

Reactions have ranged from pragmatic to hysterical.  There are voices, not to be underestimated, within the GOP that will declare that the President’s action is an impeachable offense.  Although Speaker of the House told the President that he would be “playing with fire” if he moved ahead with immigration, the Republicans seem genuinely conflicted about how to respond.  There are people within the GOP who believe that the Congress should pass its own legislation on immigration.  There are others who want to shut down the g0overnment or not confirm the President’s nominee for Attorney General to force the President to abandon his plan.

When will these changes take effect?

We don’t know.  They will not take effect overnight and there will be some lead time before the administration is prepared to take applications for deferred action from the up to 5 million people believed to be eligible.

What should I do while we are waiting?

First, don’t get arrested!  Second, gather essential documents, such as passports, matricula cards, birth certificates, marriage certificates, tax, school, medical and work records.  Third, consult with reputable lawyers to discuss issues like removal orders, criminal records or other potentially sensitive issues.

We will keep you informed with reliable and accurate information.

 

Five Things We Have Learned About I-601A Provisional Waivers

18 Nov

Nearly two years since the announcement of the provisional waiver of inadmissibility, known as the I-601A extreme hardship waiver, we have learned quite a bit about the people that need this waiver and the way the government is processing them.  Here are the top five things we have learned:

  1. The process has transformed lives.  We have witnessed families emerge from desperation and hopelessness to seize the opportunity to take charge of their lives.  Freed of the fear that a trip to a consulate abroad would mean a lengthy separation, families are empowered and made optimistic that their dreams can be realized and that the law and the U.S. recognize their value.
  2. CIS has gotten better at this.  When the program started in April 2013, I-130 petitions became very backlogged, with delays of over a year.  Since then, the government has significantly reduced the processing time for I-130 petitions to about five months, as of the time of this blog.
  3. People should never presume that their hardship is not enough.  This point reminds us of the Bob Dylan line “I have never gotten used to it, I just learned to turn it off.”  People who live with many forms of pain have become so used to it that they think it is normal or appropriate.  Detailed conversations with compassionate counsel can elicit many factors relevant for an extreme hardship determination.  Extreme hardship is never the same from one person to another.  There is no substitute for taking the time to learn about people and what makes them tick.  Documenting extreme hardship is the most personal of tasks and requires the time and compassion necessary to understand where people are coming from.
  4. We are reminded why we love our job.  Facebook has given us a front seat view of the process.  We now can watch through photos, videos and status updates the thrill that a client has when they return home after several years of not seeing their family.  We can see the happy reunions and the good luck wishes from friends in the U.S.  We see grandparents meeting their grandchildren for the first time.  We share the client’s nerves as they prepare to enter the Embassy.  And we get to see the moment that they return to the U.S. on their immigrant visas.  It does not end there however.  We get to hear about their lives, buying a house, changing jobs,having a baby, and returning home for the holidays for years to come.
  5. Expanding the provisional waiver would be great.  The provisional waiver only applies to the immediate relatives of U.S. citizens.  Expanding it to be available for the spouses and children of permanent residents, for example, or the adult children of citizens, as has been suggested in some reports, would multiply the benefit that has been given through the provisional waiver.

Is Executive Action on Immigration Imminent?

14 Nov

obama immigration reformIt is only fitting that major technological achievements like the successful placement of a lander on a comet be paired with news that the Obama administration is planning many reforms to our nation’s immigration policies.  After all, our space program and many of our most successful technological breakthroughs are directly related to an immigration policy that made it easier for the best and brightest to come and work here.  Yet, many worry today that our immigration system is so broken that it prevents the entry and lawful integration of hard workers struggling to improve their lives in the U.S.  The comet lander was a project of the European Space Agency and not NASA.

U.S. immigration policy today, instead, says no to the best and brightest, rejects those who are willing to perform jobs that others refuse to do, and breaks up families over minor violations.  In short, U.S. immigration policy not only does not help America grow, but is actually a hindrance.  Most people of fair judgment recognize this.  Last year, the Senate took a step to make some needed reforms to U.S. immigration law.  While the bill the Senate passed was far from perfect, it would have gone a long way to fixing many of the problems with the immigration system.  However, the House of Representatives refused to take up the bill and instead voted to deport DREAMers and sue the President.

In light of the crisis in immigration, the President announced in June that he would make changes by the end of the summer in regulations and policies to ameliorate the harsh edges of immigration law.  He pushed this back until after the November election to help certain Democrats retain their Senate seats, which they lost anyway.  Ironically, the one democrat that he could have helped with executive action, Mark Udall of Colorado, also lost, partially due to a discouraged Latino electorate.  Immediately after the drubbing Democrats took, the President reiterated his commitment to executive action on immigration reform.  Then IT happened.  A breathless report appeared last night (November 12) on FOX News stating that the President was going to announce his immigration “amnesty” plan on November 21 and he would legalize millions of immigrants.  The White House quickly denied that any final decisions had been made and that, certainly, no timelines had been promised.  Yet, today, the New York Times reported that the President was weighing an option that could provide up to 5 million immigrants with some type of DHS_cis_WR_atprotection from removal.  The NYT article stated that a central part of the plan is to provide deferred action, like DACA, to the parents of U.S. citizens or to people who have been here for a long period of time.  In addition, according to the Times:

Mr. Obama’s actions will also expand opportunities for immigrants who have high-tech skills, shift extra security resources to the nation’s southern border, revamp a controversial immigration enforcement program called Secure Communities, and provide clearer guidance to the agencies that enforce immigration laws about who should be a low priority for deportation, especially those with strong family ties and no serious criminal history.

A new enforcement memorandum, which will direct the actions of Border Patrol agents and judges at the Department of Homeland Security, the Justice Department and other federal law enforcement and judicial agencies, will make clear that deportations should still proceed for convicted criminals, foreigners who pose national security risks and recent border crossers, officials said.

So far, these articles are the clearest indication that the President intends to do something about immigration.  And it appears that he is ready to do it soon.  It is important to note that nothing has been decided, no timetables have been set, and that the President is still free to choose to do nothing.  In addition, the Republican Speaker of the House John Boehner has stated that the House will fight him “tooth and nail” on administrative reform.

In the meantime, it does appear that some form of administrative reform is coming.  We still don’t know what it might look like.  We asked this in August and still do not know for sure.  Although we do have some ideas. People who may benefit, such as the parents of U.S. citizens, should make sure that they have certified birth certificates, marriage certificates, tax returns, dispositions of criminal charges, school records, church records, passports and other papers showing who they are, what they have done with their lives and why they deserve a chance to stay.  And, since it is ThrowOverwhelmedback Thursday, we offer you this post from just over two years ago about what immigrants should do while waiting for deferred action relief.  Many of the suggestions remain good advice.

Stay tuned.  We will give you accurate and current information as it happens.

The Great Green Card Procurement Announcement Internet Freak-Out of October 2014.

23 Oct

Kim Jong un

In the past two months, North Korean despot Kim Jung-un disappeared and reappeared.  And earlier this week, the U.S. government sought bids on a potential government contract.  Both events caused massive speculation but little information regarding critical policy issues.

Those who watch the immigration issue with obsessive scrutiny noticed this week that the U.S. Citizenship & Immigration Service put out a request for bids for a contractor who could provide supplies to produce up to 34 million work permits.  Anti-immigration outlets quickly picked up on this obscure notice and sounded the alarm that the administration was preparing for “amnesty.”  Likewise, immigrant advocates were heartened and thought that this requisition orderCards was evidence that the administration planned to “go big” and announce expansive administrative measures to relieve the suffering caused by our merciless immigration laws.  The speculation grew so hot that White House Press Secretary Josh Earnest felt the need to tamp down expectations.  Yesterday, Earnest said, “I think those who are trying to read into those specific orders about what the president may decide are a little too cleverly trying to divine what the president’s ultimate conclusion might be. What I would caution you against is making assumptions about what will be in those announcements based on the procurement practices of the Department of Homeland Security.”

If people are “a little to cleverly trying to divine what the president’s ultimate conclusion might be,” the blame lies squarely with the White House.  On a topic of immense policy importance, the White House has been extraordinarily tight-lipped about that it plans to do or not do.  After resisting administrative action for several years while presiding over the most efficient deportation machine this country has ever known. the President raised hope of executive action in June 2014, announcing that he would take action on administrative reform by the end of the summer.  He charged the Secretary of Homeland Security with offering plans as to what steps the administration could take to relieve the suffering his removal policies have caused.  Of course, proposals for administrative reform have been around since before the President took office in 2009.  That deadline was scuttled to assuage skittish and vulnerable Democrats facing election in November.  So, the President announced that he would hold off on reform until after the elections.

Meanwhile, the tension mounts.  The anti-immigrant crowd is screeching about “Obama’s lawless amnesty” and the “ISIS-ebola-unaccompanied minor” threat.  Families continue to be torn apart and many Latino leaders are calling on people to sit out this election.  Everyone is waiting on the President to announce his plan.  The lack of information about what the President may do is what causes the internet to go berserk over “the procurement practices of the department immigration-protest-your-handsof Homeland Security.”  In the absence of real information, speculation and hysteria will fill the void.

Last month, the world engaged in speculation that North Korean despot Kim Jong-un had been overthrown because he had not been seen in weeks.  Reports of injuries to the dictator filled the airwaves until he reappeared in public.  Of course, such speculation makes complete sense in a country that tightly controls its media and in a government that operates by power and secrecy.  People interested in those affairs have learned how to divine what may be happening through little clues.  Just like in the Soviet era, insiders would try to figure out who was in and who was out by where they were seated at Party Congresses.

The internet freak-out caused by the White House’s lack of information about its plans and a cannily-timed procurement request can only be expected where the administration behaves more like the secretive cabal in North Korea than an American administration genuinely interested in solving a real problem.

GUEST BLOG: Special Immigrant Juvenile Status: Maryland Closes Gap with Federal Law to Expand Courts’ Jurisdiction. By Michelle Mendez

25 Aug

This blog post was written by FOBR Michelle Mendez, Senior Managing Attorney at Immigrant Legal Service of Catholic Charities of the Archdiocese of Washington.MM

 

On April 8, 2014, Maryland Governor Martin O’Malley signed into law Chapter 96, which, through a small, technical fix that closes a gap between state and federal law, expands the jurisdiction of an equity court to include custody or guardianship of an immigrant child pursuant to a motion for Special Immigrant Juvenile Status (SIJS) factual findings. 2014Md. Laws, Chap. 96. The law expands the jurisdiction of the court by defining a child for the purposes of SIJS factual finding determinations in guardianship or custody proceedings as an unmarried individual who is not yet 21 years of age thus aligning the definition of child with the federal definition. The idea for this change in law arose from the experience of Catholic Charities Archdiocese of Washington Immigration Legal Services staff as they continued to encounter youth with harrowing life situations that rendered them SIJS eligible but who were already 18 years old. This law goes into effect October 1, 2014, but some judges have already begun accepting cases of those who have already reached the age of 18.

 

md_fi

What is SIJS?

There are few groups more vulnerable than immigrant children who are SIJS-eligible. As we have seen with the recent surge of unaccompanied minors fleeing Central America, many have arrived in the United States fleeing APphoto_Immigration Obamaa combination of violence, threats, natural disasters, human trafficking, child labor, and abuse, neglect, and abandonment from their families. Though SIJS-eligible, without competent counsel to guide them through the complexity of this family law and immigration law hybrid relief, these children face the constant threat of deportation and without legal status, access to student loans and work authorization, they face significant barriers to becoming stable, productive members of society. That is why it is imperative that we as attorneys know and understand SIJS.

A Special Immigrant Juvenile is an immigrant child who has been declared dependent on a juvenile court because a state court judge has determined that (1) his or her reunification with one or both parents is not viable due to abuse, neglect, or abandonment and (2) it is not in the best interest of the child to be returned to his or her home country. A juvenile court is defined as “a court located in the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles,” and can include a juvenile court, family court, probate court, county court at law, or child welfare court. SIJS is the only area of immigration law that incorporates the best interest of the child principle to take into account the special needs of abused, abandoned, or neglected immigrant children. When introducing SIJS back in 1990, Congress designated this task to state juvenile court judges because federal immigration authorities are not equipped to determine the best interests of children. State juvenile judges do not make immigration determinations and instead only determine if the facts required for SIJS are present in a case; U.S. Citizenship and Immigration Services (USCIS) has sole authority to grant SIJS status via the approval of Form I-360 Petition for Amerasian, Widow(er), or Special Immigrant, subject to extensive background and biometrics checks.

SIJS factual findings are issued in state courts in accordance with foster care, guardianship, delinquency, adoption, or sole custody proceedings, meaning that the request for SIJS factual findings must accompany one of these types of filings. Submitting only a motion for factual findings for SIJS will not vest the state court with jurisdiction. Dependency on a juvenile court does not require state intervention; a judge may commit a minor to the care of a private individual through a guardianship or sole custody determination, which was clarified by William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008. A finding for SIJS purposes does not require formal termination of parental rights or a determination that reunification will never be possible, but Special Immigrant Juveniles are ineligible from ever sponsoring their parents for immigration status so the “chain migration” arguments do not apply to this relief.

What does Chapter 96 change?

Maryland law already permitted courts to issue SIJS factual findings. However, prior to Chapter 96, juvenile courts in Maryland could only exercise jurisdiction to consider individuals for SIJS up to age 18, which is the age of majority for guardianship and custody matters, even though federal immigration law permits anyone to apply for SIJS who is under age 21. This three-year gap significantly abrogated the federal law and caused undue hardship on the most vulnerable immigrant children. Chapter 96 closes this gap for this discrete class of Marylanders to carry out the will of the federal law on SIJS.

How Does Chapter 96 Benefit Maryland?

By expanding Maryland courts’ jurisdiction when determining whether immigrant youth qualify for SIJS, Maryland will have more stable families and community members. Through guardianship and sole custody proceedings, private individuals who want to take on the full legal and financial responsibilities of youth who have been abused, neglected, and abandoned can do so, providing an adult role model and easing reliance on state resources. At the tender age of 18, adult supervisiMD mapon makes a critical difference – studies show that involvement of surrogate parents is a key factor in educational achievement and avoiding risks such as alcohol and drug abuse, teen pregnancy, and violence. SIJS youth can gain protection against being forced to return to unstable, life-threatening environments as well as obtain legal status, making it easier to qualify for student loans and attend school, learn English, and work legally. These youth become productive members of society, benefiting Maryland’s economy and increasing tax revenue and consumption. Moreover, SIJS proceedings are fiscally neutral to the state: the Department of Legislative Services determined the changes made by Chapter 96 fit within existing judicial procedures and carry no additional fiscal effect.

With children from Honduras, El Salvador, and Guatemala seeking safety in United States and Maryland having received 2,205 of these children from January 1 to July 7, 2014, Maryland will be able to serve the families of these children better than any other state thanks to Chapter 96. Chapter 96 will allow SIJS-eligible children to pursue this relief consistent with the intent of the Congressional framework, and not needlessly close the courthouse door on them on their 18th birthdays. This is crucial because the number of non-profit and private attorneys with SIJS competency do not meet the demand for representation for SIJS-eligible children so the wait lists are long and the cases slow-moving. Thanks to Chapter 96, the abused, abandoned, or neglected undocumented immigrant children who come to Maryland will have better chances and a longer opportunity of becoming documented, fully-contributing members of our society.

To learn more about SIJS, consider taking a case pro bono case from one of the following reputable non-profits with in-house SIJS expertise and a pro bono program offering mentorship and sample materials:

 

Catholic Charities of the Archdiocese of Washington

Immigration Legal Services

Pro Bono Coordinator Jim Feroli, James.Feroli@catholiccharitiesdc.org

 

Kids in Need of Defense (KIND)

Washington, DC Office

Christie Turner, cturner@supportkind.org

Baltimore Office

Liz Shields, lshields@supportkind.org

 

Catholic Charities of the Archdiocese of Baltimore

Esperanza Center

Managing Attorney Adonia Simpson, asimpson@catholiccharities-md.org

 

Capital Area Immigrant Rights (CAIR) Coalition

Legal Director Heidi Altman, haltman@caircoalition.org

*Detained cases only

 

To learn more about how this law came to fruition, visit: https://cliniclegal.org/resources/articles-clinic/maryland-law-expands-eligibility-special-immigrant-juvenile-status