News & Developments

U.S. SUPREME COURT AND ONE U.S. DISTRICT COURT HAND DOWN IMPORTANT DECISIONS DIRECTLY AFFECTING FOREIGN NATIONALS

In just the past week alone, the U.S. Supreme Court made two important decisions that directly affect the rights of immigrants and the benefits to which they may be entitled. In the past week also, a U.S. District Court in California issued an injunction that puts a stop to the administration’s forced separation of parents from their children at the Southwestern border.

U.S. SUPREME COURT UPHOLDS PRESIDENT TRUMP’S TRAVEL BAN

In Trump v. Hawaii, No. 17-965, decided on June 26, 2018, the U.S. Supreme Court ruled that the President’s Travel Ban, although the President initially described it as a “Muslim Ban”, was within the President’s authority to suspend the entry of aliens into the United States. The ban currently applies to seven countries: Iran, Libya, North Korea, Syria, Yemen, Somalia and Venezuela. The reason the President stated for implementing the ban is that these countries have inadequate procedures for identifying and screening their nationals who are coming to the United States and so cannot ensure that their nationals do not pose a security risk to this country. Presumably, a country may be removed from the ban when its vetting procedures improve.

The ban does not apply to Lawful Permanent Residents of the United States or those who have been granted asylum, already admitted to the U.S. as a refugee, or have been granted Withholding of Removal, Advance Parole or protection under the Convention Against Torture (CAT). The ban on Venezuela only applies to certain members of the Venezuelan government and their immediate family members.

Foreign nationals from the affected countries who wish to visit or immigrate to the United States may apply for a “waiver” to be allowed entry into the U.S. To be eligible for a waiver, the foreign national must show: 1) “undue hardship” if entry to the U.S. is denied; 2) his/her entry would not be a threat to the national security or public safety of the United States; and 3) his/her entry would be in the national interest.

So far, there are no set procedures or guidelines for applying for a waiver and for now, how and when to apply for a waiver appears to be in the discretion of the United States Citizenship and Immigration Service (U.S.C.I.S.), the National Visa Center (NVC), and/or the Consulate where the foreign national is applying for an immigrant or non-immigrant visa.

U.S. SUPREME COURT DECISION CAN HELP MORE PEOPLE QUALIFY FOR CANCELLATION OF REMOVAL

In order for a non-permanent resident to be eligible for Cancellation of Removal, the person must show that they have been continuously present in the United States for at least 10 years. However, service of the Notice to Appear (NTA) cuts off the 10-year period, commonly referred to as the “stop-time rule”. This means that if someone was only living continuously in the U.S. for 9 years, for example, and was then served with the NTA, that person would not qualify for Cancellation of Removal.

Quite frequently, however, the NTA does not state either the date or place for the person to appear for their removal hearing but instead states that they will receive another notice sometime in the future telling them where and when to appear. Up to now, the common rule was that even when the NTA does not contain the date or place to appear for the hearing, service of the NTA cuts-off the time for counting the required 10-years of continuous presence in the United States. Frequently also, the person may move to another address or for some other reason, not receive the subsequent notice telling them when and where to appear in court leading to an Order of Removal to be entered against them in their absence.

On June 21, 2018, the U.S. Supreme Court ruled in Pereira v. Sessions, No. 17-459, that when the NTA does not tell the person the time or place to appear for their hearing, that such an NTA, because it is deficient, does not stop the clock on the 10-year presence requirement.

This decision by the U.S. Supreme Court may open the door for many people who did not previously qualify to apply for Cancellation of Removal to qualify now.

Persons who have been placed in Removal Proceedings who believe they may qualify for Cancellation of Removal but for the “stop-time rule” should examine their NTAs to see whether the document informs them of where and when to appear in an Immigration Court. They should then seek qualified counsel to assist them in their Removal case.

UNITED STATES DISTRICT JUDGE ORDERS TRUMP ADMINISTRATION TO STOP SEPARATING PARENTS FROM THEIR CHILDREN

On June 26, 2018, in response to the Administration’s “zero tolerance policy” under which all adults entering the United States illegally – even those applying for Asylum – would be criminally prosecuted and separated from their children, a U. S. District Court Judge for the Southern District of California issued a nationwide Preliminary Injunction that orders the Administration to stop separating parents from their children unless a determination is made that the parent is unfit or presents a danger to the child. The case is Ms. L v. U.S. Immigration and Customs enforcement (“ICE”), Case No. 18cv0428(DMS)(MDD).

The District Judge also ordered the government to reunify the parents with their minor children who are under the age of five (5) within fourteen (14) days of the Judge’s Order and to reunify the parents with their children who are age five (5) and older within thirty (30) days of the Judge’s Order. The Judge also ordered the government to allow parents to have telephonic contact with their children within ten (10) days.

It remains to be seen whether the government is fully complying with the Judge’s Order. A conference with the Judge is scheduled for July 6, 2018.

POSTED: July 6, 2018

YEMEN DESIGNATED FOR TEMPORARY PROTECTED STATUS

Due to the ongoing armed conflict in Yemen, the U.S. Department of Homeland Security has desginated nationals of Yemen for Temporary Protected Status (TPS).  The designation is from September 3, 2015 to March 3, 2017.  This means that during this period, nationals of Yemen who apply for and are granted Temporary Protected Status will not be removed (deported) from the United States and will be granted Employment Authorization Documents.

In order to be granted TPS, nationals of Yemen who are in the United States must register before March 1, 2016.  They must show that they have been continuously physically present and continuously residing in the U.S. since September 3, 2015.

For more information about Temporary Protected Status, please visit www.usics.gov.

Posted: September 10, 2015

HAITI RE-DESIGNATED FOR TEMPORARY PROTECTED STATUS

Due to the major earthquake on January 21, 2010 that caused so much damage to Haiti, Haiti has been re-designated for Temporary Protected Status (TPS) for an additional eighteen (18) months. The re-designation period is from January 23, 2016 to July 22, 2017.

Eligible Haitians must re-register between August 25, 2015 and October 26, 2015. Eligible Haitians will receive new Employment Authorization Documents (EADs) with an expiration date of July 22, 2017.

For more information about TPS for Haiti, please see earlier News and Developments on this site as well as www.USCIS.gov.

Posted: September 10, 2015

PRESIDENT OBAMA ANNOUNCES NEW IMMIGRATION POLICIES

On Thursday, November 20^th, President Barack Obama announced new Immigration policies that will primarily benefit parents of U.S. citizens and lawful permanent residents. Here are some of the highlights of the new policies:

•UNDOCUMENTED PARENTS OF U.S. CITIZENS OR LAWFUL PERMANENT RESIDENTS

•Undocumented persons who have children who are either U.S. citizens or lawful permanent residents may apply for temporary legal status and obtain work authorization for three (3) years. In order to be eligible, such parents must:

1. Have resided in the United States since January 1, 2010;

2. Have been present in the United States on November 20, 2014, the day of the announcement;

3. Have no lawful status on November 20, 2014;

4. Not be among those individuals who are considered “High Priority” for removal from the United States.

CAUTION: Applications are not being accepted at this time but are expected to be accepted no more than six months after November 20, 2014.

•DREAM ACT EXPANDED TO INCLUDE MORE CHILDREN

•Deferred Action for Childhood Arrivals (DACA) has been expanded to include children who have been present in the United States since on or before January 1, 2010. Previously the cut-off date was June 15, 2007. In addition, the age cap of 31 has been removed.

CAUTION: In order to be eligible, the child must still have entered the U.S. before age 16.

Applications are not being accepted at this time but are expected to be accepted no later than 90 days after November 20, 2014.

•STATESIDE PROVISIONAL WAIVER EXPANDED TO MAKE A LOT MORE PEOPLE ELIGIBLE

Up to now, provisional stateside waivers were only available to spouses and children of U.S. citizens. This is the I-601A waiver application that is filed in the United States and, if approved, allows the applicant to go to the U.S. Embassy abroad to be processed for a Green Card. The program is now extended to include spouses and children of lawful permanent residents as well as adult sons and daughters of U.S. residents and lawful permanent residents.

Posted: November 22, 2014

TEMPORARY PROTECTED STATUS DESIGNATED FOR SIERRA LEONE, LIBERIA AND GUINEA

As a result of the Ebola crisis in these countries, effective as of November 21, 2014, the U.S. Department of Homeland Security has designated Sierra Leone, Liberia and Guinea for Temporary Protected Status. Nationals of these three countries who have been continuously residing in the United States since November 20, 2014 may now register for such status in order to obtain legal authorization to work in the United States for the next 18 months.

The registration period runs from November 21, 2014 to May 20, 2015.

Posted: November 22, 2014

SOME HAITIAN FAMILIES TO BE REUNITED ON AN EXPEDITED BASIS

The U.S. Department of Homeland Security (DHS) has announced that starting in early 2015, certain family members of Haitians living in the United States may be reunited with their families on an expedited basis. Only relatives of U.S. citizens and Lawful Permanent Residents who already have approved family-based immigrant visa petitions are expected to benefit from this new program.

Caution: The new program has not yet begun and no petitions or applications are being accepted yet by DHS. In addition, only those Haitians who receive a written notice of program eligibility may apply. For more detailed information about the new program, please visit www.uscis.gov.

Posted: November 1, 2014

***BREAKING NEWS***

“DREAM ACT” POLICY ANNOUNCED

On June 15, 2012, President Obama followed by Secretary Napolitano announced that certain young people who are present in the U.S. through no fault of their own will no longer be removed (deported) from the U.S. as a matter of policy, effective immediately.

In order to benefit from the new policy, the young person must satisfy the following criteria:

• 1) Have entered the U.S. before age 16;
• 2) Have continuously resided in the U.S. for at least 5 years and have been present in the U.S. on June 15, 2012;
• 3) Be attending school, have graduated from High School (a GED Diploma satisfies this requirement) or have been honorably discharged from the military or Coast Guard;
• 4) Have not been convicted of a felony, a significant misdemeanor or otherwise pose a threat to national security or public safety; and
• 5) Be 30 years old or younger at this time.

Those who qualify will obtain Deferred Action- meaning that the government will not take action to deport them for at least two years- and will be eligible for a Work Permit.

In the coming weeks, U.S.C.I.S. is expected to announce the procedure for applying for Deferred Action and the applicable fees. Visit www.uscis.gov and this site for accurate information on further developments.

PERMANENT RESIDENCE TO BE MORE EASILY AVAILABLE FOR SPOUSES AND PARENTS OF U.S. CITIZENS

Currently, spouses and adult children of U.S. citizens who entered the U.S. without being inspected and admitted or paroled (for example, those who crossed the Mexican or Canadian border unlawfully) are unable to obtain Green Cards unless they first return home and visa process through their consulates. Usually, this means they are unable to return to the U.S. for many years since they have been present in the U.S. unlawfully.

The U.S. government has proposed, however, a new rule which would allow persons who entered the U.S. illegally to apply for a Waiver based on Extreme Hardship to their U.S. citizen spouse or parent if they were to be removed (deported). Under the proposed rule, once U.S.C.I.S. approves the Waiver provisionally, the applicant may then go to their consulate at home, after obtaining an appointment for an interview, and if successful, return to the U.S. as lawful permanent residents.

Cautionary Notes:

**The proposed rule is expected to be in effect at the end of this year – 2012- and so no Waiver applications should be filed at this time.***

**The Waiver will only apply where the person’s unlawful presence in the U.S. is the only reason that the person is unable to get a Green Card. It will not apply, for example, where the reason for being unable to get a Green Card is a criminal conviction. **

Visit www.uscis.gov and this site for accurate information on further developments.

Posted: July 13, 2012

PROSECUTORIAL DISCRETON NOW AN ACTIVE POLICY

The U.S. government has always had the discretion to decide whether or not to place someone in removal (deportation) proceedings and whether to make other enforcement decisions under the Immigration and Nationality Act. However, under a Memorandum of the Director of Immigration and Customs Enforcement (ICE) dated June 17, 2011, ICE officials have been given a specific directive to exercise Prosecutorial Discretion consistent with the agency’s enforcement priorities- called the “Morton Memorandum”. As a result, most ICE offices have now put in place policies and procedures for reviewing individual cases to determine whether removal of a particular foreign national is consistent with the agency’s priorities and with the Morton Memorandum .

JANUARY 2012

GREEN CARDS PROPOSED TO BE MORE EASILY AVAILABLE FOR IMMEDIATE RELATIVES OF U.S. CITIZENS IN U.S. ILLEGALLY

Currently, spouses, parents and some children of U.S. citizens who entered the U.S. without being inspected and admitted or paroled-for example, those who crossed the Mexican or Canadian border illegally-are unable to obtain Green Cards unless they return home and visa process through their Consulates. Usually, this means they are unable to return to the U.S. since they have entered and remained here unlawfully for many years.

On January 9, 2012, U.S.C.I.S. announced in the Federal Register its intent to propose a new rule that would allow persons who entered the U.S. illegally to apply for a Waiver based on “extreme hardship” to their U.S. citizen spouse, child or parent if they were to be deported. Once U.S.C.I.S. approves the Waiver provisionally, the applicant would return home for their visa interview and then return to the U.S. as lawful permanent residents.

It is important to note that this proposed Waiver will only apply where Unlawful Presence in the U.S. is the only problem It will not apply where, for example, it is a criminal conviction that makes the applicant unable to get a Green Card. Nevertheless, the new rule is expected to benefit a large class of people who are currently unable to gain lawful residence in the United States without great difficulty.

The proposed rule is expected to be published in the spring and become effective by the end of this year-2012.