The Department of Homeland Security (DHS) divides immigration related functions between three separate departments: ICE (Immigration and Customs Enforcement) for enforcing immigration laws, CBP (Customs and Border Protection) for controlling the inspection and admission of foreign nationals into our country at our land ports of entry and at airports. Additionally, CBP is responsible for patrolling and enforcing our borders; and USCIS (United States Citizenship and Immigration Services) for granting immigration benefits. Separating the benefits branch from the law enforcement branches of DHS was logical and good policy, since these are separate functions and separate roles that are best performed by specialization. Why USCIS of course has always had the ability to and role of identifying foreign nationals that are deportable for serious or public security offenses, this was secondary to their role of analyzing and simply granting or denying a benefit.

Now, based on USCIS’ July 5, 2018 memorandum, starting on October 1, 2018, USCIS will begin placing a much larger number of individuals in immigration court for deportation proceedings. The new USCIS NTA policy can be found in its entirety here. 

THE BIGGEST AND MOST IMPORTANT CHANGE TO THE POLICY

The new policy states that USCIS officers must issue NTA (notices to appear in immigration court) in all cases where a benefit is denied and the individual is not lawfully present at the time of the decision. This is a big departure from past policy.

Previously, if a person had no criminal history or serious immigration violations such as fraud, prior deportation orders or a ground of deportability, USCIS would not place them in immigration court if they denied their benefits application. This was good policy for several reasons. First, many people choose to leave the country on their own if their application is denied. Therefore, it is a tremendous waste of resources to place such individuals in immigration court. Second, the courts are already immensely over-burdened so to add a large new group of individuals, who have never been deportation priorities in the past is only going to exacerbate the resources issues occurring in the immigration court system.

USCIS HAS ALSO BROADENED THE DEFINITION OF UNLAWFUL PRESENCE FOR STUDENTS AND EXCHANGE VISITORS

USCIS has simultaneously broadened the definition of “unlawful presence”, now applying this concept to students who violate their status, even though they were never given a finite end date on their permitted stay in the U.S. Students and exchange visitors are granted a term of stay for the “duration of their status, or “D/S””. Even with minor violations of their status, they were not previously deemed “unlawfully present”. But now, USCIS is applying this concept to them if they violate their status, even for minor reasons such as falling below the required course load. This rule in conjunction with the new NTA rule will further clog the courts with individuals who should not be there.

Sadly, these new policies are a continuation of the illogical, inefficient and inhuman immigration policy of the Trump administration. IF you have questions about how these new rules may effect your situation, give us a call at (303) 872-6985, or email us through our contact forms on our website.

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Last week Trump sent his “term sheet” to congressional republicans containing what he wants in exchange for a “DREAM Act” that would provide an eventual path to citizenship for Dreamers. In contrast to his earlier statements (“I will sign any Dream Act legislation that is put on my desk”), Trump is now attempting to extract an enormously steep price for a path to citizenship for Dreamers. The price is so steep that many Dreamers themselves have already come out against his proposed framework. Rather than being satisfied with an enormous amount of money for his wall, Trump is now demanding massive changes to our entire immigration system. The most striking changes are:

The elimination of all family preference immigration categories AND the right of U.S. citizens to petition for their parents

Currently, the family immigration system is broken into two categories for family members:

(1) The first category is immediate relatives (“IRs”) consisting of spouses, minor children (under 21) and parents of U.S. citizens. There are neither quotas nor wait lists for IR’s (except for the time required to process the applications) since these relationships are so close.

(2) The second category is broadly titled the “preference categories” consisting of adult children and siblings of U.S. citizens, and spouses, minor children and unmarried adult children of lawful permanent residents (LPR’s or green card holders). For preference categories, there are usually very long waiting periods to immigrate to the U.S. (as long as 20 years) because the U.S. only lets in a fixed number of immigrants in these categories each year.

The White House plan proposes to eliminate the immediate relative sub-category of parents of U.S. citizens and eliminate all preference categories. This is a monumental change to our existing immigration system. Ironically, the White House titles this section “Protect the Nuclear Family”, yet the proposal drastically reduces the family members that can immigrate to the U.S., only preserving spouses and minor children of citizens. The elimination of parents is particularly bizarre and heartless. Is the U.S. ready to step this afar away from a valued practical and cultural norm of taking care of your parents as they age? The elimination of the preference categories would also be extremely detrimental and very short-sighted, particularly because it is moving forward without any real discussion or research conducted by the White House or Congress into the issues.

The elimination of the diversity lottery program:

The diversity lottery allows 50,000 new immigrants into the country each year from traditionally underrepresented parts of the world. Applicants must meet minimum education or work experience requirements to qualify for the lottery. The lottery is based on the principle that diversity is a source of strength, an idea which use to be a widely shared and valued principle in this country.

The use of “expedited removals” to deport visa overstays:

With this change, any person who overstays their visa would become subject to deportation without the due process right of first seeing an immigration judge. Such a measure would be particularly harsh and have a huge adverse effect on many U.S. citizens since many of these individuals only overstay their visas because they are in a relationship or marry a U.S. citizen. Many others also have an understandable reason for overstaying their visa such as a legitimate claim to asylum or eligibility for a U visa based on being the victim of a serious crime. If these individuals are deported, they will be subject to the deportation bar and face substantial hurdles to returning to this country, despite the fact that they may have a lawful path to obtain their green card. Quite simply, this punishment would severely outweigh the crime in most cases and adversely affect the rights of many U.S. citizen and resident family members.

Is it worth it?

It is truly sad and amoral to use the lives of the Dreamers in an attempt to change our immigration system in such a profound and negative way. These are young people who did not understand that they were were not Americans until they were teenagers. Many were brought here in the arms of their parents. Now Trump dangles their lives in front of the Democrats mercilessly to see how much he can extract for their protection. This starting point is certainly not a positive sign in these negotiations, but perhaps some rational members of his own party can convince Trump to back off from these demands, and merely take the King’s ransom that he is requesting for his wall in exchange for protecting the Dreamers.

Photo by Feifei Peng on Unsplash

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Before our discussion below of recently proposed immigration bills, it is worth reviewing the process of how a bill (a proposed new law) becomes law. The fact of the matter is that, for better or for worse, our country’s founders made it very difficult to change the law (with few exceptions). Bills hit Congress all the time, but in reality only 4% of those bills become law[1] and those bills that do become law are usually substantially different from the original draft. Bills have to be introduced, sent to committees and subcommittees, debated, amended, voted on in the House of Representatives, win a majority of votes to go to Senate, repeat the whole process over again and, if approved by both houses, they must be signed into law by the president (if vetoed, 2/3 of both houses are needed to override the veto).

Since Trump took office, immigrant communities and those who have a close relationship with these communities must temper both our fear and our hope when it comes to new proposed immigration laws. In light of this reality, let’s turn to the bills gaining the most attention in the immigration debate, but let us remember that each of these bills still have a long road ahead of them to become actual law.

The Unlikely Bad News: The RAISE Act

The infamous RAISE Act (Reforming American Immigration for Strong Employment Act) would highly favor immigration for young professionals between the ages of 26-30, holding doctorates, Nobel Prizes or Olympic medals [2]. Of course, less impressive individuals could also gain entrance depending on their capacity to gain 30 points in the proposed point-based merit system based on: the possession of university degrees, fluency in English, placement in the higher income brackets, etc. Investment too, over $1.35 million, would gain favor in a visa application. Family visas apart from immediate family of US citizens, asylum and refugee visas and other categories lacking “merit” would substantially suffer. The green card lottery promoting diversity immigration would be slashed and total legal immigration would be cut by a projected 41% on the first year [3]. Though the bill has the support of President Trump, it hasn’t gained much traction in either house, nor is it in the least bit impressive in the eyes of our leading economists (or really anyone with a general understanding of economics).

The Unlikely Good News: the DREAM Act of 2017

The DREAM ACT of 2017 is a bill with bi-partisan sponsorship that would pave a path towards citizenship for those undocumented immigrants who arrived as children. It would expand the scope of the DACA criteria, making those who entered before their 18^th birthday eligible and providing a “hardship waiver” to those falling outside the general eligibility but facing extraordinary challenges. The process would still be long, requiring its beneficiaries to hold Conditional Permanency Residency Status for eight years, and then applying for Legal Permanent Residency, but it would provide a track for many who are currently unprotected [4]. Remember, DACA is simply “deferred action” in regards to potential deportation (though it does grant the ability to work, go to school and even join the military). Also remember that DACA is an executive order, and that means it can disappear if the president decides to make it disappear.

The Real Concern: DACA

This is the exception to the “laws are difficult to change” statement mentioned above because DACA was created with an executive order, which is unilateral action by our President. As such, it can also disappear with unilateral action from Trump. The possibility that nearly 800,000 young people protected under DACA could lose protection with the stroke of a pen is a real reason for concern. Though Trump initially showed a degree of sympathy for “DREAMERS”, Texas has recently threatened to file a lawsuit if the Trump administration does not phase DACA out by September 5^th[5]. In light of this, the Trump administration has not clarified whether or not DACA will continue.

Regardless of DACA’s fate, the current political climate threatening the fate of millions of immigrants has also created a force of passionate advocates who will continue to fight for the basic rights of immigrants.

[1] https://www.washingtonpost.com/news/wonk/wp/2014/01/16/almost-none-of-the-bills-introduced-into-congress-ever-becomes-a-law/?utm_term=.c8b85452a

[2] http://time.com/4885453/donald-trump-legal-immigration-bill/

[3] https://medium.com/@UNITEDWEDREAM/lawmakers-just-introduced-a-dream-act-bill-what-does-it-means-for-you-4aa09e193b6f

[4] https://medium.com/@UNITEDWEDREAM/lawmakers-just-introduced-a-dream-act-bill-what-does-it-means-for-you-4aa09e193b6f

[5] http://www.washingtontimes.com/news/2017/aug/14/daca-faces-challenges-trump-courts/

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Changing Trends in Immigration

Our tumultuous political climate has once again brought immigration to its forefront. The heated issue, however, involves a myriad of misconceptions further complicating a very important, and very personal, discussion. The following data, largely gathered by the Pew Institute, provides relevant information challenging various notions that have colored the immigration debate for the last few decades:

• There are far more documented immigrants than undocumented (74.5% to 25.5% respectively)
• Most undocumented immigrants have been here for over a decade. 65.7% have lived here for 10 years or more, compared to 14.3% who have lived here less than five years.
• Mexican immigrants make up the majority immigrant population, but their numbers are declining, especially amongst new arrivals.
• Many unauthorized immigrants entered legally, but overstayed their visas. A 2006 Pew estimate calculates that as many as 45% of undocumented immigrants entered legally, but overstayed their visas.
• 61% of undocumented immigrants live in metropolitan areas, but the majority live in the suburbs.
• The majority of undocumented immigrants work in construction and service. Only 4% of undocumented immigrants work in agriculture.
• One-third of undocumented immigrants live with at least one U.S. citizen child.

These realities, among many others still unconsidered by most, heavily impact groups within an already vulnerable population given our unstable immigration policies. Many may find themselves separated from their children. Others may find their industries lacking in available labor. Whatever the case may be, the group we are mainly referring to is a group that has become integrated into our society by living and working here for a decade or more, by having American children, contributing to all sectors of the economy, and needless to say, it is a group that would suffer great losses if removed from its home country, just like any other sector of our population.

For the full NPR article detailing this data, click here.

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The Immigration and Naturalization Act (INA) is the body of law currently governing immigration policy. Though very complicated, a starting point is to understand that we grant entry on either a permanent (legal permanent resident) or temporary (nonimmigrant) basis.  Currently, there is a worldwide limit of 675,000 permanent immigrant visas, with certain exceptions for immediate family members of US citizens. Once a Legal Permanent Resident (LPR), an individual can live and work in the US permanently and eventually apply for naturalization (after 5 years of LPR status, or 3 years if LPR status is through marriage to a US citizen).

The guiding principles of US immigration are: family reunification, admitting immigrants with skills valuable to the US economy, protecting refugees, and promoting diversity. These principles are reflected in our general visa categories.

Family based Immigration

For immediate relatives of US citizens (spouses, unmarried children under 21, or parents of citizens over 21), there are an unlimited number of visas. However, for those outside these categories, there are a limited number of visas through the family preference system including:

• adult children (married and unmarried),
• siblings of US citizens over 21
• spouses and children of LPRs.

The number of available visas for this category is calculated by starting with 480,000, subtracting immediate family visas and parolees, and then, adding unused employment-based visas. There is a minimum of 226,000 visas and, because of all the mentioned subtractions, it often ends up being the actual number of family preference visas. Moreover, these limits include derivative visas (spouses and minor children of principal immigrants).

Employment based Immigration

Employment is another channel trough which immigrants with valuable skills can come to the US. There are over 20 types of temporary visas including: L1 for intracompany transfers, P for Athletes, entertainers and skilled performers, O-1 for extraordinary abilities, H visas for both highly skilled and lesser skilled employment, etc. Generally speaking, these employees must leave after their visa expires or if their job is terminated.

In the case of employment based visas for permanent immigration, there is a limit of 140,000 each year including derivative visas for family members, and they are more difficult to obtain.

Refugees, Aslyees, and other forms of Humanitarian Relief

Refugees are admitted to the US based upon an inability to return to their country of origin because of a “well-founded fear of persecution” due to race, membership of particular social group, political opinion, religion, or national origin. Each year, the president and congress determine the ceiling for refugee visas. Likewise, asylum is granted to persons already in the US who meet the same criteria as refugees.

For other cases of hardship including natural disasters, “ongoing armed conflict”, and other extraordinary cases, there are avenues such as: TPS (Temporary Protected Status), DED (Deferred Enforced Departure), the possibility of being paroled into the country, and various other special categories.

Promoting Diversity

The Diversity Visa Program, created by the Immigration Act of 1990, allocates 55,000 visas to be randomly given to nations whose immigrants are underrepresented in our population. Inversely, our current system also caps immigration from any one country to 7% of the total number of new immigrants per fiscal year to prevent any one area from dominating our migration patterns. This 7% rule applies across the board, to the family and employment categories as well. For this reason, in certain categories, foreign nationals from oversubscribes countries have to wait in line for visa availability before immigrating to the country. Common examples are the long lines for Mexican nationals in family based preference categories. On the employment side, Chinese and Indian nationals have to wait in line for visa availability because of the large number of skilled professionals from these countries.

Here is the detailed Fact Sheet provided by the American Immigration Council on our immigration system 

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The Background on “Bleeding” Cuba

The Cuban Adjustment Act of 1966 assumed that Cubans migrating to the United States were political refugees in need of protection. Therefore, the act made it possible for Cubans to apply for a green card while they were in the United States, if they were admitted or paroled into the United States, and were physically present in the United States for at least one year. Because of this policy, immigration authorities paroled Cubans who either reached the United States via land or U.S. territorial waters, thereby allowing Cubans to get a green card after one year. This law effectively made it much easier for Cubans to obtain a green card than for immigrants from other countries.

Cuban authorities did not take kindly to this policy as they felt the United States was “bleeding” their island. In 1995, in an effort to somewhat restore relations with Cuba, the Clinton administration enacted the infamous “wet foot, dry foot” policy. Cubans who reached the United States via land would still be paroled and allowed to pursue residency as before. Cuban migrants who were intercepted at sea however, would be sent back to Cuba or resettled in a third country.

This “wet-foot, dry-foot” policy was the policy that President Obama ended a few weeks ago, in an effort to continue to restore diplomatic relations with Cuba. Whereas previously, Cubans were almost always paroled into the United States if they arrived by land, now the Department of Homeland Security will treat Cubans the same as migrants from other countries. Now to enter the United States, Cubans will usually need visa. While this does not repeal the Cuban Adjustment Act of 1966, it makes it much more difficult for Cubans to get a green card under that Act.

Wet-Foot, Dry-Foot Going Forward

While the end of the “wet-foot, dry-foot” policy will make it much more difficult for Cubans to immigrate to the United States, immigrating for them is still much easier than it is for immigrants of other countries. If Cubans manage to be admitted or paroled, then under most circumstances they will be eligible to apply for a green card after one year of living in the United States. This is a benefit the United States does not give to immigrants of any other country. This benefit will continue until and unless the Cuban Adjustment Act of 1966 is repealed.

Immigration Help for Cuban Nationals

If you are a Cuban national here in the United States without U.S. permanent residency, we strongly recommend you contact Shaftel Law as soon as possible to discuss your immigration status and possible residency.
 
 
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