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House Unanimously Amends Immigration and Nationality Act

Posted on by Ruby Powers in Immigration Law, Legislative Reform Leave a comment

The New York Times reports that the House passed, by a 426-0 vote, HR 398, to amend the Immigration and Nationality Act to toll, during active-duty service abroad in the Armed Forces, the periods of time to file a petition and appear for an interview to remove the conditional basis for permanent resident status.

http://politics.nytimes.com/congress/bills/112/hr398


DHS: Prioritizing Enforcement and Exercising Prosecutorial Discretion

Posted on by Ruby Powers in DREAM Act, Immigration Law, Interior Enforcement, Legislative Reform Leave a comment

August 22, 2011

American Immigration Council

 For Immediate Release

DHS: Prioritizing Enforcement and Exercising Prosecutorial Discretion
Experts Welcome New Guidance, But Agree the Devil is in the Details

 

August 22, 2011

 

Washington D.C. – Today, the American Immigration Council hosted a briefing to discuss the Department of Homeland Security’s (DHS) announcement last week that it would issue agency-wide guidance to make certain that prosecutorial discretion is exercised in a manner that ensures the agency’s enforcement resources are used to remove those who pose the greatest risk to public safety. DHS also announced the creation of a joint committee with the Department of Justice (DOJ) that will review nearly 300,000 cases currently in removal proceedings to determine which ones are low priority and can be administratively closed in order to begin unclogging immigration courts.  While it is unclear how these proposals will play out in practice, the federal government must continue to assert its authority over immigration given the rise of state legislative initiatives that seek to impose different priorities on immigration enforcement.

Melissa Crow, Director of the Legal Action Center at the American Immigration Council discussed the practical implications of the use of greater prosecutorial discretion and had a warning for immigrants not in removal proceedings:

“Prosecutorial discretion is not a new concept, and is exercised on a daily basis by law enforcement agencies.  It refers to the authority of a law enforcement agency or officer to decide whether – and to what extent – to enforce the law in a particular case. Prosecutorial discretion can take a variety of forms, depending on the nature of the case involved.
DHS has also been clear that last week’s announcements do not impact individuals who are not currently in removal proceedings. Thus, ‘DREAM’ students and others unlawfully present in the United States, but not in removal proceedings should not actively seek out the immigration authorities. Since there are no guarantees that an individual removal case will be administratively closed, anyone who seeks to be placed in removal proceedings could end up being deported.” 

 

Clarissa Martinez, the Director of Immigration and National Campaigns at the National Council of La Razadiscussed the Administration’s move:

“This is a huge step forward for our country. This means that DHS will be using its resources more effectively. For those attacking this approach, I would challenge them to say what should be prioritized over national security and public safety. Every law enforcement agency uses prosecutorial discretion to do just that.”

Javier Morillo-Alicea, President of Service Employees International Union (SEIU) Local 26 in Minnesota said:

 

“For years now we have reminded the Administration that their stated enforcement priorities of going after criminals—not law-abiding citizens—was not an on-the-ground reality. Last week’s announcement, if properly implemented, will give teeth to long-stated enforcement priorities which is an extremely important move on the part of the Administration. It is right on policy and it is right on politics.”

 

To listen to a recording of the briefing or view other resources on Prosecutorial Discretion see:

 ###

 

 

For more information contact Wendy Sefsaf at wsefsaf@immcouncil.org or 202-507-7524


The Obama Administration’s Immigration Announcement is NOT an Amnesty Program!

Posted on by Ruby Powers in Immigration Law Leave a comment

AILA ANNOUNCEMENT

WARNING!
Do NOT believe anyone who tells you they can sign you up for a work permit 
(Employment Authorization Document or “EAD”) or get you legal status 
based on the Secretary Napolitano’s August 18, 2011 announcement!  
Anyone who says that is not to be trusted!   
There is NO “safe” way to turn yourself in to immigration and there is NO 
guarantee that your case will be considered “low priority.”  ANY person who 
comes into contact with immigration authorities may be arrested, detained 
or even removed. 
Only a QUALIFIED IMMIGRATION LAWYER can evaluate your case and tell 
your about your rights.   
Do NOT seek legal advice from a notario or immigration consultant.   
For more information about avoiding immigration scams go to 
www.StopNotarioFraud.org

 

 

 


Did the Obama Administration grant amnesty on June 17?

Posted on by Ruby Powers in Immigration Law, Interior Enforcement, Legislative Reform Leave a comment

Did the Obama Administration
grant amnesty on June 17?
Prepared by American Immigration Lawyers Association

On June 17, Immigration and Customs Enforcement (ICE) issued a new policy entitled “Exercising Prosecutorial Discretion…” clarifying how immigration officials should focus on the agency’s key priorities to pursue criminal immigrants who pose real threats to public safety and national security. Commentators, including a member of Congress and the union that represents immigration officers, have criticized the memo, calling it a grant of amnesty that shirks the Obama Administration’s duty to enforce immigration law. Last week, Congressman Lamar Smith (R-TX) sent a letter to all members in the House of Representatives stating that the June 17 “memo suggested that the agency take steps to legalize millions of illegal immigrants.”

Myth 1. The Administration’s “prosecutorial discretion” policy is a grant of amnesty

Ever since President Reagan signed a law in 1986 granting legal status for millions of undocumented immigrants, those in favor of more restrictive immigration laws have complained that Reagan should not have granted an “amnesty” to lawbreakers. In the past decade, every bill proposing to register undocumented immigrants and legalize their status-no matter how tough the enforcement provisions-have been labeled amnesty. Those same charges were leveled at ICE’s June 17 policy announcement. But nothing in that policy can be accurately described as even close to an amnesty. Most importantly, it does not authorize immigration officials to grant any immigrant legal status that is not already established in law. The policy reiterates ICE’s existing enforcement priorities and gives guidance as to how and when to apply them in the field in a variety of settings from the moment an agent speaks to a person through the point of a prosecutor deciding whether and how to appeal a decision by a judge.

Myth 2. The Administration is being soft on immigration enforcement.

Immigration enforcement has never been more vigorous. In the fiscal year that ended September of last year, ICE deported nearly 400,000 people, a record high. Last year, Congress granted the Administration’s request for an additional $650 million to provide increased border resources, including more border patrol agents, more surveillance equipment, and technology improvements. President Obama has also cited significant increases in the number of criminal aliens that have been apprehended and deported. Smart and effective enforcement does not mean picking up everyone on the streets dragnet-style. It requires targeting ICE resources to achieve the agency’s mission of enforcing the law and ensuring public safety and national security.

Myth 3. The Obama Administration has granted “deferred action”-effectively amnesty-to thousands of people.

In March, Homeland Secretary Janet Napolitano testified before Congress that DHS had granted deferred action in less than 900 cases in the previous fiscal year, fewer times than the previous administration. Deferred action is a decision by the government to suspend temporarily deportation proceedings against someone. Deferred action does not grant legal status or provide a path to legal permanent residency, and DHS can revoke it and reinitiate proceedings at any time. Typically deferred action has been granted to ameliorate hardship on a case by case basis both for people who may be eligible in the future for legal status and those who are not.

Since Napolitano testified, she has been accused of misleading the public. The Federation for American Immigration Reform, an advocacy group in support of more restrictive immigration policies, announced that DHS had, in fact, granted deferred action in 12,338 cases in 2010. Of those cases, however, 96 percent (or 11,796) were made to victims of domestic violence, human trafficking and serious crimes as part of the process for granting special visas to protect them, including many who are helping law enforcement in the investigation and prosecution of dangerous criminals. These special visas were authorized by Congress to prevent domestic abuse, human trafficking and other violent crimes, goals that have long had strong bipartisan support in Congress.

Myth 4. Prosecutorial discretion is a new invention of the Obama Administration.

ICE’s June 17 policy did not create anything new but affirmed a long-standing principle used by prosecutors and law enforcement officials nationwide to decide whether and how to enforce the law in a particular case. Every day, our nation’s law enforcement officials make decisions about who to arrest, who to prosecute, and what sentences to seek. In the past decade, administration officials under Presidents Clinton, Bush and Obama have issued more than a dozen memoranda outlining the practice. In 1999, 28 members of the House of Representatives from both parties, including Rep. Lamar Smith who now criticizes the policy, wrote to then-Attorney General Janet Reno encouraging the use of prosecutorial discretion in the enforcement of immigration law. The letter questioned why there were not policies in place to guide prosecutorial discretion in cases where deportation was “unfair” and caused “unjustifiable hardship” – for example, in cases of immigrants who came to this country as children or had U.S. citizen family members. The June 17 policy uses similar criteria to guide its officials.

Myth 5. The Administration is bypassing Congress and creating new immigration law.

Critics have suggested that ICE’s June 17 policy oversteps the Administration’s executive powers and usurps Congress’s authority to legislate. The Constitution delegates authority to Congress to make laws. The executive branch has the responsibility to implement those laws and must do so in a well-balanced manner consistent with the law. Historically, immigration officers, just as any other law enforcement officers, have exercised prosecutorial discretion to conserve finite enforcement resources and to prevent injustices. In a 2010 memo, Attorney General Holder explained, “[t]he reasoned exercise of prosecutorial discretion is essential to the fair, effective, and even-handed administration of the federal criminal laws. Decisions about whether to initiate charges, what charges and enhancements to pursue, when to accept a negotiated plea, and how to advocate at sentencing, are among the most fundamental duties of federal prosecutors.” The June 17 ICE policy does not grant new authority but simply seeks to consolidate, update, and clarify the more than a dozen prosecutorial memos that have been issued over the past decade. ICE is not usurping Congress’ authority; it is doing its job.


Recently Introduced Legislation – Prepared by AILA

Posted on by Ruby Powers in Immigration Law, Legislative Reform Leave a comment

 

Introduced Legislation
 

August 1

H.R. 2730- Strengthening the Child Welfare Response to Human Trafficking Act of 2011
(Bass D-CA)
Better enables State child welfare agencies to prevent human trafficking of children and serve the needs of children who are victims of human trafficking

H.R. 2763
(McDermott D-WA; Ros-Lehtinen R-FL)
Extends by two years the special rule relating to eligibility for benefits under the supplemental security income program for certain aliens and victims of trafficking. Amends section 402(a)(2)(M) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996.

H.R. 2771
(Rivera R-FL)
Amends Public Law 89-732 to increase to 5 years the period during which a Cuban national must be physically present in the United States in order to qualify for adjustment of status to that of a permanent resident

August 2

S. 1506
(Rubio R-FL)
Prevents the Secretary of the Treasury from expanding United States bank reporting requirements with respect to interest on deposits paid to nonresident aliens.

August 5

H.R. 2805 – Doctors for Underserved Areas in America Act
Lofgren D-CA)
Amends Section 220 of the Immigration and Nationality Technical Corrections Act of 1994 to make the section permanent.


DHS Announces Expansion of Prosecutorial Discretion Guidelines, Signals Opportunity to Regain Common Sense

Posted on by Ruby Powers in DREAM Act, Immigration Law Leave a comment

August 18, 2011

Washington D.C. – Today, the Department of Homeland Security (DHS) announced that it would put guidelines in place across all immigration agencies to ensure that its enforcement priorities are focused on removing persons who are most dangerous to the country.

In a letter to Senator Dick Durbin (D-IL) and other senators who had requested that DHS consider deferring the removal of all DREAM Act eligible students, DHS announced that it would not categorically defer removal, but that persons who were not high priority targets for removal would have the opportunity to request prosecutorial discretion on a case by case basis.  Low priority cases—previously identified in a prosecutorial discretion memo issued by Immigration and Customs Enforcement Director John Morton on June 17—include persons who are not criminals and have been in the country since childhood, have strong community ties, are veterans or relatives of persons in the armed services, are caregivers, have serious health issues, are victims of crime or otherwise have a strong basis for remaining in the United States.

DHS announced the creation of a joint committee with the Department of Justice that will review nearly 300,000 cases currently in removal proceedings and determine which cases are low priority and can be administratively closed.  In addition, agency-wide guidance will be issued to ICE, USCIS and CBP officers to ensure that they appropriately exercise discretion when determining whether a low priority case should be referred to immigration court.

Mary Giovagnoli, Director of the Immigration Policy Center, stated:

The American Immigration Council welcomes DHS’s announcement today that it will attempt to put muscle behind new guidelines on prosecutorial discretion. We have long advocated for using the tools of the executive branch to do effective immigration enforcement that does not cripple families and our economy. The creation of an interagency working group and the expansion of prosecutorial discretion guidance is a critical step toward slowing down the deportation of immigrants who have so much to give to this country.  However, only comprehensive immigration reform can permanently address the problems of our immigration system.

According to Melissa Crow, Director of the Legal Action Center:

Today’s announcement clearly indicates the Obama Administration’s commitment to implementing the expansive use of prosecutorial discretion authorized by the June 17th Morton Memo.  As we closely monitor how these new announcements are implemented, DREAM students, military families, victims of crime, and many other individuals who pose no threat to public safety may receive a reprieve from removal.  We hope that the forthcoming guidance will help to ensure that DHS field offices across the country use their enforcement resources in a way that meaningfully advances the agency’s priorities and prevents low priority cases from continuing to clog the court system.

###

For more information, please contact Seth Hoy at shoy@immcouncil.org or             (202) 507-7509      



Dream Act students cheer Obama’s immigration enforcement policy

Posted on by Ruby Powers in DREAM Act, Immigration Law Leave a comment

Dream Act students cheer Obama’s immigration enforcement policy

 

L.A. NOW

SOUTHERN CALIFORNIA — THIS JUST IN

August 18, 2011 |  2:55 pm

The news that the Obama administration was planning to halt virtually all deportations of Dream Act students and possibly their families  drew cheers and applause from several students and immigrant rights activists who gathered at the downtown Los Angeles office of the Coalition for Humane Immigrant Rights of Los Angeles.

The Obama administration announced Thursday that undocumented students and other low-priority immigration offenders would not be targeted for deportation under its immigration enforcement programs. These eligible students are those who were illegally brought to the U.S. as children by their parents.

….

 

We shall wait and see how this will be played out…


Man who saved girl says he’s illegal immigrant

Posted on by Ruby Powers in Immigration Law, Legislative Reform Leave a comment

Man who saved girl says he’s illegal immigrant

Married to U.S. citizen, New Mexico resident becomes poster child in debate

By JERI CLAUSING

updated 8/19/2011 7:00:53 PM ET
ALBUQUERQUE, N.M. — The man who chased down an alleged child abductor and saved a 6-year-old girl from what could have been a horrible fate will be honored as a hero Friday. But he is also gaining a new kind of celebrity: as a poster child of sorts for immigration rights in state and national immigration debates.

How to Expedite a Foreign-Filed I-601 Waiver

Posted on by Ruby Powers in Consular Processing, I-601 Waivers, Immigration Law Leave a comment

How to Expedite a Foreign-Filed I-601 Waiver

 

If you desire to submit an expedite request, the types of extraordinary circumstances that may, generally, merit expedited processing of a Form I‑601 are those in which there are time-sensitive and compelling situations that necessitate the applicant’s presence in the United States sooner than would be possible if the application were processed under normal processing times or other time-sensitive circumstances that nonetheless merit expeditious processing, principally where the failure to expedite the adjudication could result in significant delays in family reunification.  Those situations may include, but are not limited to, situations in which the applicant establishes one or more of the following:

 

  • The applicant has urgent and critical medical needs that cannot be addressed in the applicant’s country;

 

  • An applicant’s family member in the United States has a serious medical condition and has urgent and critical medical needs related to that condition that require the applicant to assist the family member in the United States;

 

  • The applicant is faced with urgent circumstances related to the death or serious illness of a family member;

 

  • The applicant or qualifying family member is a particularly vulnerable individual due to age, serious medical condition, or disability and this vulnerability is exacerbated by the applicant’s presence outside the United States;

 

  • The applicant is at risk of serious harm due to personal circumstances distinct from the general safety conditions of those living in the applicant’s country;

 

  • It would be in the national interest of the United States to have the applicant in the United States (for example, the applicant’s presence in the United States is urgently required for work with a U.S. government entity); or

 

  • As described in a request from or for a member of the Armed Forces of the United States:

 

o       The applicant’s qualifying family member is a member of the military who is deployed or will soon be deployed; and

 

o       The applicant demonstrates that, in light of the deployment there are compelling reasons to expedite the request due to the impact of the applicant’s absence from the United States on the applicant, the qualifying family member, or their children, if any.

 

The above non-exhaustive list describes some examples of situations that may, depending on the facts of the case, merit a discretionary approval of a request to expedite adjudication of a waiver request.  However, these are not the only circumstances that may warrant expeditious processing.  There may also be other time-sensitive circumstances that do not necessitate the applicant’s presence in the United States sooner than would be possible under normal processing times, but that nonetheless merit expeditious processing.

 

For example, the applicant may be ineligible to receive a visa in the following month due to forecasted visa regression and therefore faces an even more prolonged and unanticipated separation from family members if the application is not expedited.  Similarly, the applicant may request that the case be expedited to prevent a child not covered by the Child Status Protection Act from aging out before visa issuance.  There also may be circumstances in which a prior USCIS error merits expeditious processing of a request.

 

Documentation.

 

Requests must include sufficient evidence to support the claimed need for expedited processing or an explanation of why that evidence is not available.  For example, if the request is based on an urgent, serious medical condition, the applicant should provide a medical report.  If the request is based on urgent need by a U.S. government entity to have the applicant in the United States, the applicant should provide a letter from the entity supporting the expedite request.

 

Each USCIS office has a different response time.

 

According to the USCIS Juarez office, if you do not receive a response to your request to expedite within 15 days from the date of notice of receipt of the request, your request to expedite may be presumed to be denied.

Ruby L. Powers

I-601 Waiver Attorney


Secretary Napolitano Announces Initiatives to Promote Startup Enterprises and Spur Job Creation

Posted on by Ruby Powers in Immigration Law Leave a comment

Secretary Napolitano Announces Initiatives to Promote Startup Enterprises and Spur Job Creation

Release Date: August 2, 2011
For Immediate Release
Office of the Press Secretary
Contact: 202-282-8010
WASHINGTON—Secretary of Homeland Security Janet Napolitano and U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas today outlined a series of policy, operational, and outreach efforts to fuel the nation’s economy and stimulate investment by attracting foreign entrepreneurial talent of exceptional ability or who otherwise can create jobs, form startup companies, and invest capital in areas of high unemployment.
“The United States must continue to attract the best and brightest from around the world to invest their talents, skills, and ideas to grow our economy and create American jobs,” said Secretary Napolitano. “Today’s announcements will help our nation fully realize the potential of existing immigration laws.”
“Current immigration laws support foreign talent who will invest their capital, create new jobs for American workers, and dedicate their exceptional talent to the growth of our nation’s economy,” said Director Mayorkas. “USCIS is dedicated to ensuring that the potential of our immigration laws is fully realized, and the initiatives we announce today are an important step forward.”
These actions mark the six-month anniversary of Startup America, a White House-led initiative to reduce barriers and accelerate growth for America’s job-creating entrepreneurs. They have also been one key focus of the President’s Council on Jobs and Competitiveness, which has recommended taking action to help ensure that America can out-innovate and out-compete the world in a global economy.
USCIS has published a Frequently Asked Questions (FAQs) document on its website clarifying that entrepreneurs may obtain an employment-based second preference (EB-2) immigrant visa if they satisfy the existing requirements, and also may qualify for a National Interest Waiver under the EB-2 immigrant visa category if they can demonstrate that their business endeavors will be in the interest of the United States. USCIS will complement these FAQs with internal training on the unique characteristics of entrepreneurial enterprises and startup companies and incorporate input from the upcoming stakeholder engagements detailed below.
The EB-2 visa classification includes foreign workers with advanced degrees and individuals of exceptional ability in the arts, sciences, or business. Generally, an EB-2 visa petition requires a job offer and a Department of Labor certification. These requirements can be waived under existing law if the petitioner demonstrates that approval of the EB-2 visa petition would be in the national interest of the United States.
In response to stakeholder feedback, USCIS has also updated existing FAQs to clarify that an H-1B beneficiary who is the sole owner of the petitioning company may establish a valid employer-employee relationship for the purposes of qualifying for an H-1B nonimmigrant visa – which is used by U.S. businesses to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as science, engineering, and computer programming.
The EB-5 immigrant investor program is also being further enhanced by transforming the intake and review process. In May, USCIS proposed fundamental enhancements to streamline the EB-5 process which include: extending the availability of premium processing for certain EB-5 applications and petitions, implementing direct lines of communication between the applicants and USCIS, and providing applicants with the opportunity for an interview before a USCIS panel of experts to resolve outstanding issues in an application. After reviewing stakeholder feedback on the proposal, USCIS is developing a phased plan to roll out these enhancements and is poised to begin implementing the first of these enhancements within 30 days.
Created by Congress in 1990, the program stimulates the U.S. economy through capital investment and resulting job creation by immigrant investors. As of June 30, 2011, it is estimated that the program has resulted in more than $1.5 billion in capital investments and created at least 34,000 jobs.
USCIS has also announced the expansion of its Premium Processing Service to immigrant petitions for multinational executives and managers (often referred to as “E13”). The Premium Processing Service allows employers to expedite processing of their petitions, absent evidentiary deficiencies, fraud or national security concerns.
Finally, USCIS is launching a new series of engagement opportunities for entrepreneurs and startup companies. These opportunities will focus on soliciting input from stakeholders on how USCIS can address the unique circumstances of entrepreneurs, new businesses and startup companies through its policies and regulations in the employment-based arena. For detailed information on USCIS’s public meetings, please visit www.uscis.gov/outreach.
For more information, visit www.uscis.gov.
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