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 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




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


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.




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
For more information, visit


Posted on by Ruby Powers in Immigration Law Leave a comment

1)      Difference between “Inadmissibility” and “Deportability”




  • Law: INA §212(a). Regs: 8 U.S.C. §1182(a)
  • Interpreted more “broadly”
  • Burden of proof on the foreign national (“clearly and beyond any doubt admissible”)
  • Becomes relevant when the foreign national is seeking “Admission” (at a Port of Entry, application for a visa at the consulate, AOS, COS, EOS)
  • Ineligible for visas or admission to the United States
  • Ineligible for adjustment of status and changes/extension of non-immigrant status
  • Foreign National can be either physically present in the US, at a Port of Entry or abroad




  • Law: INA §237(a).  Regs: 8 U.S.C. § 1227(a)
  • Interpreted more “tightly”
  • Burden of proof on the government (“clear and unequivocal evidence”)
  • Becomes relevant any time after the alien has been admitted and/or is applying for naturalization
  • Generally applicable when individual is physically present in the US
  • Deportable aliens are removed through removal proceedings in Immigration Court


Posted on by Ruby Powers in Immigration Law Leave a comment


1)      US Department of Homeland Security (DHS)


Homeland Security combines the resources of several federal, state and local agencies into a single, integrated agency focused on protecting the American people and their homeland. More than 87,000 different governmental departments at the federal, state, and local level have homeland security responsibilities.


  • US Citizenship and Immigration Services or USCIS– Responsible for the administration of immigration and naturalization court functions and establishing the policies and priorities of immigration related services.
  • Administrative Appeals Office or AAO–  Should a petition or application be denied or revoked by the USCIS, in most cases it is possible to appeal that decision to a higher authority. The AAO has oversees the appeals of over 40 different petitions and applications (see list below).
  • Customs and Border Protection or CBP– Responsible for protecting our nation’s borders in order to prevent terrorists and terrorist weapons from entering the United States, while aiding the flow of legitimate trade and travel.
  • Immigration and Customs Enforcement or ICE– Largest investigative arm of the Department of Homeland Security. ICE is responsible for identifying and shutting down vulnerabilities in the nation’s borders, specifically those having to do with the economy, transportation and infrastructure.


2)      Executive Office for Immigration Review (EOIR)


The Executive Office for Immigration Review (EOIR) was created on January 9, 1983 through an internal Department of Justice (DOJ) reorganization which combined the Board of Immigration Appeals (BIA or Board) with the Immigration Judge function previously performed by the former Immigration and Naturalization Service (INS) (now part of the Department of Homeland Security). Besides establishing EOIR as a separate agency within DOJ, this reorganization made the Immigration Courts independent of INS, the agency charged with enforcement of Federal immigration laws, much like national court of laws are separate from local and federal police departments The Office of the Chief Administrative Hearing Officer (OCAHO) was added in 1987.


EOIR is also separate from the Office of Special Counsel for Immigration-Related Unfair Employment Practices in the DOJ Civil Rights Division and the Office of Immigration Litigation in the DOJ Civil Division.


  • Immigration Courts

The Office of the Chief Immigration Judge (OCIJ) provides overall program direction, establishes policies and procedures, and sets priorities for more than 200 Immigration Judges located in 54 Immigration Courts throughout the Nation. The Chief Immigration Judge carries out these responsibilities with the assistance and support of two Deputy Chief Immigration Judges and 10 Assistant Chief Immigration Judges.

Immigration Judges are responsible for conducting formal court proceedings, and act independently in deciding the matters before them. Their decisions are final unless appealed or certified to the Board of Immigration Appeals. In removal proceedings, Immigration Judges determine whether an individual from a foreign country (an alien) should be allowed to enter or remain in the United States. They also have the power to consider various forms of relief from removal. In a typical removal proceeding, the Immigration Judge may decide whether an alien is deportable or inadmissible under the law, then may consider whether that alien may avoid forced removal by accepting voluntary departure or by qualifying for asylum, cancellation of removal, adjustment status, protection under the United Nations Convention Against Torture, or other forms of relief.

Many removal proceedings are conducted in prisons and jails as part of an initiative called the Criminal Alien Institutional Hearing Program. In coordination with Department of Homeland Security and correctional authorities in all 50 states, Puerto Rico, the District of Columbia, selected municipalities, and Federal Bureau of Prison facilities, Immigration Judges conduct on-site hearings to rule on, the immigration status of aliens while they are serving sentences for criminal convictions.

  • Board of Immigration Appeals

The Board of Immigration Appeals (BIA or Board) is the highest administrative body for interpreting and applying immigration laws. It is composed of 11 Board Members, including the Chairman and Vice Chairman who share responsibility for Board management. The Board is located at EOIR headquarters in Falls Church, Virginia. Generally, the Board does not conduct courtroom proceedings – it decides appeals by conducting a “paper review” of cases. On rare occasions, however, the Board does hear oral arguments of appealed cases, almost always at their headquarters.

The Board has been given nationwide power to hear appeals from certain decisions made by Immigration Judges and by District Directors of the Department of Homeland Security (DHS) in a wide variety of proceedings in which the Government of the United States is one party and the other party is either an alien, a citizen, or a business firm. In addition, the Board is responsible for the recognition of organizations and accreditation of representatives requesting permission to practice before DHS, the Immigration Courts, and the Board.

Decisions of the Board are binding on all DHS officers and Immigration Judges unless modified or overruled by the Attorney General or a Federal court. All Board decisions are subject to judicial review in the Federal courts. The majority of appeals reaching the Board involve orders of removal and applications for relief from removal. Other cases before the Board include the exclusion of aliens applying for admission to the United States, petitions to classify the status of alien relatives for the issuance of preference immigrant visas, fines imposed upon carriers for the violation of immigration laws, and motions for reopening and reconsideration of decisions previously rendered.

The Board is directed to use its independent judgment in hearing appeals for the Attorney General. Board decisions chosen for publication are printed in bound volumes entitled Administrative Decisions Under Immigration and Nationality Laws of the United States.

3)      US Court of Appeals


The 94 U.S. judicial districts are organized into 12 regional circuits, each of which has a United States court of appeals. A court of appeals hears appeals from the district courts located within its circuit, as well as appeals from decisions of federal administrative agencies.  In addition, the Court of Appeals for the Federal Circuit has nationwide jurisdiction to hear appeals in specialized cases, such as those involving patent laws and cases decided by the Court of International Trade and the Court of Federal Claims.


*The US Court of Appeals for the Fifth Circuit has jurisdiction over Texas.



4)      US Supreme Court


The Supreme Court consists of the Chief Justice of the United States and such number of Associate Justices as may be fixed by Congress. The number of Associate Justices is currently fixed at eight, bringing the total current number of justices on the court to nine. Power to nominate the Justices is vested in the President of the United States, and appointments must be approved by the Senate. Only cases challenging the constitutionality of a decision by a lower court may be appealed before the Supreme Court.

Born in the USA—But Does that Guarantee Citizenship?

Posted on by Ruby Powers in 14th Amendment, Immigration Law Leave a comment

Born in the USA—But Does that Guarantee Citizenship?

By Martha J. Heil
American Bar Association
Aug. 4, 2011

This article discusses the hot topic of the 14th Amendment.

TORONTO — Does the 14th Amendment provide that children born in this country automatically become citizens? And if it doesn’t, should we fix it? A debate on that topic today at the American Bar Association’s Annual Meeting covered several centuries of legislation but started with just three words.

Those words, “subject to jurisdiction,” are a clause in the amendment to the U.S. Constitution that defines who is an American citizen.

Reading this reminded me that not all people born on US soil receive US citizenship but there are few exceptions.

My friend, Margaret D. Stock was quoted on the issue:

Stock gave a list of practical objections to modifying the 14th Amendment through laws in Congress. “If we get rid of birthright citizenship, we will lose our tax base, but we will also lose the benefit of those who are not born in the U.S. [while] we take advantage of their services,” she said. “Actually, the U.S. will get more undocumented immigration, because second, third, and fourth generations will also be illegal. We will have social disruption, discrimination and we’ll go back to the Dred Scott era.”

The ABA Annual Meeting takes place in Toronto Aug. 4-9. “The Battle Over Birthright Citizenship: History, International Perspectives and the Path Ahead” was sponsored by the ABA Commission on Immigration.

Tips on creating a paperless office—it is possible!

Posted on by Ruby Powers in Immigration Law Leave a comment

I came across this article  (July 2011) with the ABA about going paperless. It is a summary of another blog and article about going paperless by  Margaret (Molly) DiBianca:

“The paperless office is not a myth,” says Margaret (Molly) DiBianca, who practices labor and employment law at Young Conaway Stargatt & Taylor, LLP, in Wilmington, Del., and writes the Going Paperless Blog. “It is, and has been a reality for many lawyers for many years.”

In fact, the Law Office of Ruby L. Powers has striven to be as paperless as possible from inception in 2009.  With paper you are using paper, ink, staples, staple removers, hole punchers, trash cans, trash can bags, physical storage of paper and files in the office and in storage locations, charging clients for copies, storage, postage, labor which can include to make copies, collate, mail, go to the post office, etc.

You can easily see the savings on:

  • Supplies and equipment
  • Storage
  • Labor
  • the Environment
What is great is that practices that use this model or culture, can pass on tremendous savings to their clients. We charge clients for copies and postage but most of those copies and postage are for the packets sent to the Government and we scan and email copies to our clients decreasing their expense charge. Additionally, we use an e-fax system to eliminate wasting paper and to have the documents already scanned for review and filing.
It would be great if more businesses could do this!
Ruby L. Powers
US Immigration Attorney