When Immigration Matters

Karen-Lee Pollak Quoted in Law360 Article About DACA

Posted by Michael Pollak on Fri, Jun 09, 2017 @ 5:08 PM

dream-act-button-resized-120.jpgdream act
Immigration Attorney Karen-Lee Pollak was quoted in the Law360 Article, "What Attys Should Tell DACA Clients as Uneasiness Lingers".

The article provides recommendations from some of the nation's top immigration lawyers for DACA "Dream Act" clients seeking to navigate the turbulent immigration environment created by the Trump administration regarding Dreamers.  Pollak is quoted regarding options beyond DACA:

  • Consider Options Beyond DACA 

Where possible, DACA recipients may also want to look for immigration options beyond the program, attorneys said. For instance, if someone qualifies through a relative, it could be possible to file a hardship waiver, to show difficulty that “would be suffered if they left the country," according to Karen-Lee Pollak of Pollak PLLC.

"In order to get their green card, if the [waiver] is approved, they would actually have to 'consular process,' so they'd have to leave the country to go to a consulate, to get their visa," Pollak noted. 

Learn More 

If you are a Dreamer seeking to learn more about your immigration options, contact the team at Pollak PLLC today.

We are passionate about helping people realize the American Dream, reuniting families, and bringing the best and brightest minds to the U.S. so they can pursue their goals and make a positive, meaningful contribution to the community.

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Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at [email protected] or under her twitter handle law_immigration.

Immigration Reform: How the Bill is Debated in the Senate

Posted by Karen-Lee Pollak on Wed, Jun 12, 2013 @ 12:24 PM

 Dept. of Homeland Security, Comprehensive Immigration Reform, DREAMers, DREAM ActThe American Immigration Lawyers Association ("AILA") explains what is happening as S.744 is debated on the Senate Floor:

Process (Starting the Week of June 10th)  

Senate Majority Leader, Harry Reid (D-NV), filed cloture on the motion to proceed on 6/6/13

 The Senate will debate the motion to proceed for two calendar days and will conclude with a cloture vote on 6/11/13 at 2:15pm and a final vote at 4:00pm.  If cloture is

invoked (requires 60 yes votes—which should not be a problem as Minority Leader McConnell (KY) has indicated he will vote yes), and the motion to proceed passes then the Senate will begin debate of the bill.

 The Congressional Budget Office (CBO) will release a score for the bill—estimating how much the bill will cost the government (add or reduce the deficit) over the next ten years.

 Debate will begin with opening statements from both parties and then time will be divided evenly between Democrats and Republicans

o Sen. Leahy (D-VT), Chairman of the Judiciary Committee, will work with Sen. Reid and the four Democratic members of the “Gang of Eight” to lead the Democratic efforts for the bill.

o For Republicans, the time will be divided between proponents (the four Republican members of the “Gang of Eight” and others) and opponents (Senators Sessions (AL), Grassley (IA), and others).

 Amendments (offered over the next three weeks) see attached  filed as of 6/11/2013 http://www.immigrationbn.com/Portals/52046/docs/amend.pdf

 We anticipate that hundreds of amendments will be filed to S. 744; however, just because an amendment is filed does not mean it will be called up for a vote—in fact most won’t (similar to what happened in the committee process).  

 Time will be allotted to debate the amendments. Many (typically non-controversial) amendments will be accepted on a bipartisan basis.  We expect that the most controversial amendments will be held off until the third week of debate (June 24th), right before the cloture vote on the bill.

 Some amendments may require a higher 60 vote threshold, while others will only need a simple majority.

 Senators may offer amendments in any order to any part of the bill that has not already been amended. The order in which amendments are offered depends largely on the convenience of the Senators proposing them, not on requirements imposed by standing rules or precedents. 

 Senators can offer 2nd degree amendments to any amendment being debated on the bill.  After voting on any second degree amendments, the Senate votes on the first degree amendment as it may have been amended. Third degree amendments—amendments to second degree amendments—are not in order.

 

 

Final Votes on Bill as Amended (Most Likely Week of June 24th)

Filibuster: Because Senate rules establish no generally applicable limits on the length of debate, nor any motions by which a majority could vote to bring a debate to an end, or even limit it, the only formal procedure that Senate rules provide for breaking filibusters (endless amendments being offered, one senator speaking at length, etc…) is to invoke cloture.  

 When Senator Reid has decided that the time for offering amendments has expired, he will invoke cloture to end debate on the bill.  If any Senator objects to cloture it will then require 60 yes votes to end debate and move to a final vote.  If cloture is invoked successfully (60 yes votes) there will still be an additional 30 hours (or two calendar days) of debate when amendments can continue to be offered.

 If cloture is invoked, and after the bill has ripened (the 30 hours have elapsed), the Senate will then move to a final vote on the bill as amended.  This vote only requires a simple majority of the Senate for passage.

So where are we on Immigration Reform? An analysis of the Senate Judiciary Bill

Posted by Karen-Lee Pollak on Thu, May 23, 2013 @ 3:15 PM

comprehensive immigration reformAdvocates for comprehensive immigration reform won their first major legislative victory this week when the Senate Judiciary Committee voted 13-5 to approve the bipartisan "Gang of Eight" plan. 

It is the first step in a series of hurdles for immigration reform that includes increased border security, a pathway to citizenship for 11 million undocumented immigrants and reforms to legal immigration designed to streamline the process.

 It took the 18 senators five days for markups and they considered 300 amendments, with many of those that passed doing so in a bipartisan nature.  Overall, 48 Republican amendments passed primarily strengthening immigration enforcement.  There were few, if any, significant changes made to the original "Gang of Eight" bill.

 So What Does the Bill Include?

 Path To Citizenship

 The estimated 11 million people living in the U.S. illegally could obtain “registered provisional immigrant status” six months after enactment of the bill as long as:

(1) The Homeland Security Department has developed border security and fencing plans.

(2) They arrived in the U.S. prior to Dec. 31, 2011, and maintained continuous physical presence since then.

(3) They do not have a felony conviction or three or more misdemeanors.

(4) They pay a $500 fine.

—People in provisional legal status could work and travel in the U.S. but would not be eligible for federal benefits.

—The provisional legal status lasts six years and is renewable for another $500.

—People deported for noncriminal reasons can apply to re-enter in provisional status if they have a spouse or child who is a U.S. citizen or permanent resident, or if they had been brought to the U.S. as a child.

—After 10 years in provisional status, immigrants can seek a green card and lawful permanent resident status if they are current on their taxes and pay a $1,000 fine, have maintained continuous physical presence in the U.S., meet work requirements and learn English. Also the border triggers must have been met, and all people waiting to immigrate through the legal system as of the date of enactment of the legislation must have been dealt with.

—People brought to the country as youths would be able to get green cards in five years, and citizenship immediately thereafter.

Border Security

Within 180 days of enactment, The Department of Homeland Security is required to submit a “Comprehensive Southern Border Security Strategy” including enhanced border security and fencing plans.  This is significant because any undocumented aliens eligible for Registered Provisional Immigrant Status (“RPI) will not be eligible to apply for a Green card until Border Security is effective and operational.   

Changes to the Family based Immigration (“Green Cards”)

  • Backlog for Family and Employment-based immigrants will be eliminated over a 10 year period
  • Sponsorship of Siblings of US Citizens is eliminated.
  • Sponsorship of Married adult children are only allowed if a child is under 31 years of age. 
  • Spouse/child of Permanent Residents will be treated like a spouse/child of US. Citizens so no wait times and no annual numerical limits

Changes to Employment-Based Immigration (“Green Cards”)

  • Backlog for Employment-based immigrants will be eliminated over a 10 year period
  • No annual numerical limits and no wait times on  Employment-based Derivative Beneficiaries, Aliens with Extraordinary Ability, Outstanding Professors and Researchers, Multinational Executives and Researchers, Doctoral Degree Holders in Any Field and Certain Physicians
    • 40% to Advanced Degree Professionals (Arts Sciences, Professions, Business) and Master’s Degree in STEM with Offer of Employment
    • 40% to Skilled Workers and Professionals•
    • 10% to Special Immigrants•
    • 10% to Job Creators
  • Annual limitation on the number of employment-based immigrant visas but allocation changes:

HIGH-SKILLED WORKERS

  • The cap on the H-1B visa program for high-skilled workers would be immediately raised from 65,000 a year to 110,000 a year, with 25,000 more set aside for people with advanced degrees in science, technology, engineering or math from a U.S. school. The cap could go as high as 180,000 a year depending on demand.
  • New protections would crack down on companies that use H-1B visas to train workers in the U.S. only to ship them back overseas.
  • 60 day Job Transition Period
  • H-4 Work Authorization—(If sending country has a reciprocal law for US Citizens)
  • Additional H1B Fees-50 or More Employees and  more than 30%/ but less than 50% are H-1/L-1--$5000 per additional worker
  • 50 or More Employees and more than 50% are H-1/L-1--$10,000 per additional worker.  If more than 75% Employees H-1/L-1—No more sponsorship

New Visas

  • A startup visa would be made available to foreign entrepreneurs seeking to come to the U.S. to start a company.   Although not clearly defined, the Senate Bill creates an employment-based conditional immigrant visa for a sponsored alien entrepreneur:(1) with certain amounts of financial backing from a qualified investor, government entity, or venture capitalist; and(2) whose commercial activities will generate required levels of employment, revenue, or capital investment.
    • A new merit visa, capped at 250,000 a year, would award points to prospective immigrants based on their education, employment, length of residence in the U.S. and other considerations. Those with the most points would earn the visas.  This visa would be effective 5 years after enactment.  It is similar to the Canadian Landed Immigrant Visa System.
    • The bill would eliminate the government’s Diversity Visa Lottery Program, which randomly awards 55,000 visas to immigrants from countries with historically low rates of immigration to the United

LOW-SKILLED WORKERS

  • A new W visa (No Bachelor’s degree) would allow up to 200,000 low-skilled workers a year into the country for jobs in construction, long-term care, hospitality and other industries.  The visa would be valid for 3 years and can be renewed for three years. 

Employers will need to register with a new Bureau

  • Spouse and Children can receive work authorization
  •  Cannot be Unemployed for over 60 days•
  • 30 Day Recruitment Requirement• Cap—20,000 First Year Increasing Up to 75,000 in subsequent years

A new agriculture worker visa program would be established to replace the existing program. Agriculture workers already here illegally, who’ve worked in the industry at least two years, could qualify in another five years for green cards if they stay in the industry.

  • Spouse and Children(Work Authorization)• Cannot be Unemployed for over 60 days• 30 Day Recruitment Requirement• Cap—20,000 First Year Increasing Up to 75,000 in subsequent years

EMPLOYMENT VERIFICATION

Within four years, all employers must implement E-Verify, a program to electronically verify their workers’ legal status. As part of that, noncitizens would be required to show photo ID that must match with a photo in the E-Verify system.  An amendment by Senator Grassley failed that would have enforced the system within 18 months of the bill's passage, instead of the four years outlined in originally.  The system is going to have to add in 5 million employers.  Right now it can handle only about 180,000

 One major addition to the original bill is the biometric entry/exit provision which requires all non-U.S. citizens to be fingerprinted when leaving the U.S. through the country's 10 busiest airports.

 Late in the day, the bill survived perhaps its most serious challenge when the Democratic committee chairman Leahy introduced and then withdrew an amendment that would have granted gay and lesbian couples the same rights as straight married couples to sponsor their foreign-born partners for immigration.

 Democrats who supported the notion said they could not vote for the amendment because it would have fractured the fragile, bi-partisan coalition that wrote the delicate legislation. Republicans said they would walk away if the amendment was included, resulting in Leahy vowing to fight the battle another day.

 So What Happens Now? 

 "Now the real work begins to see if we can reform this bill before we send it to the House," Sen. Chuck Grassley, R-Iowa, said during closing remarks.  The Bill goes to the Senate for debate and vote.

If the bill is passed by Senate, the bill will then go to the House of Representatives.  The House can vote on the Senate bill or its own legislation.  

 The separate House "Gang of Eight" said last week it had agreed in principle on its own bill and expected to write its legislation and introduce it after the Memorial Day recess.  The House can vote on its own immigration legislation.  If it does, then the House and Senate must work together to reconcile the bills.  If that does not happen, both bills die. 

  If both the House and the Senate approve the same bill, then the bill is sent to the President to sign. After the President signs the bill into law, then the Department of Homeland Security has to figure out how to enforce it—but that is a whole different topic. 

 

Deferred Action (DACA)--School Records are Great Evidence-Here's Why

Posted by Karen-Lee Pollak on Thu, Aug 30, 2012 @ 6:03 PM

Karen Lee PollakOn Tuesday, DHS officials hosted a conference call with educators in regard to school records serving as documentation for DACA applicants. During the call, DHS officials advised educators that school records serve as two-pronged pieces of evidence: firstly, they prove that applicants are either still in school, or have graduated high school, and secondly, they prove continuous presence in the country for at least four years. One of the requirements to be eligible for DACA is continuous presence in the country for five years; DHS officials explained, “[school records is] fantastic evidence in a single document.” Educators seemed concerned by the fact that, while school records can indeed prove presence in the country for four years, summer and other breaks are not accounted for. DHS officials replied by stating that there is no requirement for applicants to account for any given day during school breaks. Additionally, the officials affirmed that the agency, when processing the applications, will keep in mind that schools do have regular breaks.

One of the most important questions on educators’ minds was the question of federal financial aid. If granted DACA, educators wanted to know, would the students then qualify to receive grants or be eligible to participate in work-study programs. The answer given by the immigration officials was disappointing but seemingly expected: DACA provides only two benefits: removing the possibility of deportation and obtaining work authorization, both for at least two years. Those individuals granted DACA will not receive any other benefits such as federal financial aid.

 Some school districts have been highly cooperative with DACA applicants in expediting the processing rates of providing school records to requestors. Thus far, how has your experience been in obtaining your school records? Does your school charge a fee? Is the waiting time too long? Have you encountered any serious difficulties in obtaining the records? Share your experience here!

Do I Need a Lawyer to Apply for Deferred Action?

Posted by Karen-Lee Pollak on Fri, Aug 17, 2012 @ 1:10 PM

It is not required to have a lawyer to apply for deferred action. 

However, PROCEED WITH CAUTION, the government has stated quite clearly that there will be no appeals or motions to re-open cases.  You get one chance to take advantage of this opportunity so it is probably worth it to retain the help of an experienced and reputable immigration lawyer.

Tips for selecting an immigration lawyerfinding immigration lawyer

1. Do your homework!  Choosing your immigration lawyer could have a profound impact on your future.  Get answers to the following questions:

    • How much experience does she have practicing immigration law? 
    • Has the lawyer successfully handled cases simliar in nature to your own?
    • Is the lawyer licensed and in good standing with a State Bar Association?
    • Is she a Certified Specialist in Immigration Law? 
    • How is she regarded by peers and clients?
    • Has she earned accolades such as "SuperLawyer"?
    • Do you trust this person?

2. Choose an AILA lawyer. AILA (American Immigration Lawyers Association) is the only legal association in the United States for immigration attorneys. More than 11,000 immigration lawyers are members of AILA. 

    • "Only a U.S.-licensed lawyer or accredited representative is authorized and qualified to assist with your immigration case. Unlike consultants, lawyers have completed extensive education and training before being licensed to represent clients. Lawyers are also required to maintain high ethical standards: and if they don’t, you can contact your local bar association for action. When a consultant promises to help—but doesn’t deliver—the damage may not be fixable, and there may be no one to turn to.
    • By promising too much—and knowing too little—unauthorized consultants can damage your chances. Many are little better than scam artists, taking your money and never having to answer for the results.
    • It is against the law for “public notaries” or even foreign lawyers who are not licensed in the U.S. to provide immigration advice—even “just” filling out forms is something that only a licensed, properly trained lawyer or accredited representative should do.
    • This is important because only a U.S.-licensed lawyer or accredited representative is authorized and qualified to assist with your immigration case." - AILA

3. Check client & peer reviews on sites like Avvo

    • Avvo is an expert-only Q&A forum where people can ask legal questions of lawyers  for free. The Q&A forum is backed by an online directory of lawyers licensed in the United States. Avvo provides listings to which attorneys can submit their own profiles and histories. The listings may also include client reviews, disciplinary actions, and peer endorsements.

4. Interview a few lawyers and go with your gut

    • Meet with a few lawyers and hire who you trust and feel most comfortable with.  It is common for lawyer to provide a free consulation so that they can understand your case and explain your options.  This is your chance to get a feel for whether you trust this person and feel comfortable with her.  You can also discuss fee structure and agreements. 

5. Be careful who you listen to!

    • "Be smart! If it sounds too good to be true, it probably is.
    • Don’t believe it if someone tells you about a secret law or claims to have connections or special influence with any agency.
    • Never sign an application that contains false information, and try to avoid signing blank forms. If you must sign a blank form, make sure you get a copy of the completed form and review it for accuracy before it is filed.
    • Always get proof of filing—a copy or government filing receipt—when anything is submitted in your case.
    • Insist on a written contract that details all fees and expenses and make sure you receive a receipt, especially if you pay cash. If terms change, get a written explanation." - AILA

GOOD LUCK!!!

Related articles:

USCIS Releases Forms to Apply for Deferred Action

What are the risks with applying for deferred action?


 

What are the risks with applying for deferred action?

Posted by Karen-Lee Pollak on Thu, Aug 16, 2012 @ 5:51 PM

The recent announcement that the U.S. Citizenship and Immigration Services (USCIS) will begin accepting completed forms to allow individuals to request consideration of deferred action for childhood arrivals is an exciting time for many young people across the nation.  

risk deferred actionHowever, applying for deferred action is not without risk.  There are several factors to consider.  First, the political risk. What if President Obama is not re-elected?  Could deferred action be reversed?  Applying for deferred action requires you to reveal a lot of personal information about yourself and your family.  Although U.S. Citizenship and Immigration Services Director Alejandro Mayorkas says that the information in applications will be confidential and will not be used to round up other undocumented people, you should give careful consideration to the fact that you could be exposing your family to the risk of deportation by providing this information.  

Now fast-forward to Election Day on November 6thWhat if President Obama is not reelected?  Mitt Romney has been floundering for a position on the issue.  During a speech in Iowa in December, he flatly promised to veto the DREAM act.  However, in April, he expressed support saying that Republicans needed to propose a GOP version of the bill to garner support of Hispanic voters.  However, that version supposedly being drafted by Sen. Marco Rubio (R-Fla) has yet to materialize even after President Obama’s announcement in June.   The point is that the DREAM act is an executive order, not law, and if Mitt Romney wins the presidential election, he will have the power to revoke it.

The second risk is that the policy is a “temporary” measure. The President issued what he called a "stopgap" measure directing the Department of Homeland Security to halt the deportation of undocumented immigrants under the age of 30 who were brought to the U.S. as children. This order effectively decriminalized the status of individuals who would have qualified for permanent residency under the DREAM Act, and is valid only for two years.  So, if President Obama is re-elected in November, Dreamers do not have immunity or a shortcut to citizenship and must assume they will be renewed, but will not know until further guidance is provided.

USCIS Releases Forms to Apply for Deferred Action

Posted by Karen-Lee Pollak on Tue, Aug 14, 2012 @ 2:50 PM

deferred actionToday, U.S. Citizenship and Immigration Services (USCIS) released new forms and instructions to allow individuals to request consideration of deferred action for childhood arrivals from USCIS.  USCIS will begin accepting completed forms tomorrow, August 15, 2012. 

On June 15, 2012, U.S. Secretary of Homeland Security Janet Napolitano and President Barack Obama announced that, effective immediately, certain undocumented youth who were brought to the United States as young children, who do not present a risk to national security or public safety, and meet several key criteria will be considered for relief from removal from the country or from entering into removal proceedings. Under the administration plan, certain unauthorized immigrants, will be able to avoid deportation and obtain work authorization if they can satisfy specific key criteria:

  1. Came to the United States before they turned 16;
  2. Have continuously resided in the United States for a least five years preceding the date of the memorandum (June 15, 2012) and are present in the United States on the date of this memorandum (June 15, 2012);
  3. Are currently in school, have graduated from high school, have obtained a general education development certificate or are honorably discharged veterans of theU.S. Coast Guard or Armed Forces of the United States;
  4. Have not been convicted of a felony offense, a significant misdemeanor offence, multiple misdemeanor offenses or otherwise pose a threat to national security or public safety;
  5. Are not above the age of 30.

Only those individuals who can prove through verifiable documentation that they meet these criteria will be eligible for deferred action and work authorization. Individuals will not be eligible if they are not currently in the United States and cannot prove that they have been physically present in the United States for a period of not less than five years immediately before June 15, 2012. Types of evidence include but are not limited to school records, medical records, high school diploma or GED certificate. Those who demonstrate that they meet the criteria will be eligible to receive deferred action for a period of two years, subject to renewal, and will be eligible to apply for work authorization.

In a change from the prior announcement, people currently in removal proceedings will use the USCIS process when it is implemented on August 15, 2012, rather than go through ICE. Only individuals in detention will go through ICE to make a deferred action request. Requestors will use a form developed for this specific purpose.

  • Requestors will mail their deferred action request together with an application for an employment authorization document and all applicable fees to the USCIS lockbox. Total fees including biometrics will be $465.00
  • All requestors must provide biometrics and undergo background checks.
  • Fee waivers cannot be requested for the application for employment authorization and biometric collection. However, fee exemptions will be available in limited circumstances. The four USCIS Service Centers will review requests.
  • Information provided as part of the deferred action request process is protected from disclosure to ICE or CBP for purposes of removal proceedings unless the requestor meets the criteria of USCIS' November 2011 NTA memo.
  • If a departure from the U.S. was due to removal, voluntary departure, etc., the absence was not brief, casual and innocent and would interupt the continuous residence that is required since June 15, 2007. Short absences before August 15, 2012, reasonably calculated to accomplish the purpose of the trip, would not be interuptive.
  • Only people who are currently not in status and were not in any lawful status on June 15, 2012 are eligible
  • A "significant misdemeanor" is one for which the individual was sentenced to more than 90 days, or a conviction for domestic violence, sexual abuse, burglary, firearm violation, drug distribution or trafficking (but not possession), or DUI, regardless of the sentence.
  • Whether a person has reached age 15, and whether the requestor meets the education requirements, will be determined as of the date the request for deferred action is filed, NOT the June 15, 2012 date.

We have attached copies of the pertinent applications and instructions for your review.

USCIS Announces Cost & Procedures to Apply for Deferred Action

Posted by Karen-Lee Pollak on Fri, Aug 03, 2012 @ 4:46 PM

deferred action, dream actOn August 3, 2012, the Department of Homeland Security provided additional information on the deferred action for childhood arrivals process during a national media call in preparation for the August 15 implementation date.

USCIS expects to make all forms, instructions, and additional information relevant to the deferred action for childhood arrivals process available on August 15, 2012. USCIS will then immediately begin accepting requests for consideration of deferred action for childhood arrivals.

Information shared during today’s call includes the following highlights:

  • In a change from the prior announcement, people currently in removal proceedings will use the USCIS process when it is implemented on August 15, 2012, rather than go through ICE.  Only individuals in detention will go through ICE to make a deferred action request. Requestors will use a form developed for this specific purpose.

 

  • Requestors will mail their deferred action request together with an application for an employment authorization document and all applicable fees to the USCIS lockbox.  Total fees including biometrics will be $465.00

 

  • All requestors must provide biometrics and undergo background checks.

 

  • Fee waivers cannot be requested for the application for employment authorization and biometric collection. However, fee exemptions will be available in limited circumstances. The four USCIS Service Centers will review requests.

 

  • Information provided as part of the deferred action request process is protected from disclosure to ICE or CBP for purposes of removal proceedings unless the requestor meets the criteria of USCIS' November 2011 NTA memo.

 

  • If a departure from the U.S. was due to removal, voluntary departure, etc., the absence was not brief, casual and innocent and would interupt the continuous residence that is required since June 15, 2007. Short absences before August 15, 2012, reasonably calculated to accomplish the purpose of the trip, would not be interuptive.

 

  • Only people who are currently not in status and were not in any lawful status on June 15, 2012 are eligible

 

  • A "significant misdemeanor" is one for which the individual was sentenced to more than 90 days, or a conviction for domestic violence, sexual abuse, burglary, firearm violation, drug distribution or trafficking (but not possession), or DUI, regardless of the sentence.

 

  • Whether a person has reached age 15, and whether the requestor meets the education requirements, will be determined as of the date the request for deferred action is filed, NOT the June 15, 2012 date.

 

 

 

DREAM Act | Spotlight On Obama's Policy For Undocumented Youth

Posted by Michael Pollak on Mon, Jul 30, 2012 @ 2:22 PM

 As appearing in Law360, New York (July 11, 2012, 2:16 PM ET)

DREAM Act-- On June 15, 2012, U.S. Secretary of Homeland Security Janet Napolitano and President Barack Obama announced that, effective immediately, certain undocumented youth who were brought to the United States as young children, who do not present a risk to national security or public safety, and meet several key criteria will be considered for relief from removal from the country or from entering into removal proceedings. Under the administration plan, certain unauthorized immigrants, who are Development, Relief and Education for Alien Minors (DREAM) Act-eligible, will be able to avoid deportation and obtain work authorization if they can satisfy specific key criteria:

  1. Came to the United States before they turned 16;
  2. Have continuously resided in the United States for a least five years preceding the date of the memorandum (June 15, 2012) and are present in the United States on the date of this memorandum (June 15, 2012);
  3. Are currently in school, have graduated from high school, have obtained a general education development certificate or are honorably discharged veterans of theU.S. Coast Guard or Armed Forces of the United States;
  4. Have not been convicted of a felony offense, a significant misdemeanor offence, multiple misdemeanor offenses or otherwise pose a threat to national security or public safety;
  5. Are not above the age of 30.

Only those individuals who can prove through verifiable documentation that they meet these criteria will be eligible for deferred action and work authorization. Individuals will not be eligible if they are not currently in the United States and cannot prove that they have been physically present in the United States for a period of not less than five years immediately before June 15, 2012. Types of evidence include but are not limited to school records, medical records, high school diploma or GED certificate. Those who demonstrate that they meet the criteria will be eligible to receive deferred action for a period of two years, subject to renewal, and will be eligible to apply for work authorization. This policy will not lead toward citizenship but will remove the threat of deportation and grant the ability to work legally, leaving eligible immigrants able to remain in the United States for an extended period. Illegal immigrant children won’t be eligible to apply for this benefit of deferred action and work authorization until they turn 16, but these younger children will not be deported.

For individuals who are in removal proceedings and have already been identified as meeting the eligibility criteria and have been offered an exercise of discretion as part of U.S. Immigration and Customs Enforcement (ICE) Immigration and Custom Removal ongoing case-by-case review, ICE will immediately begin to offer them deferred action for a period of two years, subject to renewal. If this has not occurred and you have clients that satisfy the above criteria, you may call the ICE 24-hour hotline at 855-448-6903. If your clients are subject to a final order of removal are eligible for the above relief, you may call 800-375-5283. Some argue that enlistment in the military is not currently a viable option for persons affected by the above announcement, as Napolitano cannot authorize anyone to enlist in the U.S. Armed Forces — except perhaps the Coast Guard — and did not do so on June 15, 2012. Generally, unauthorized immigrants are not currently allowed to enlist in the U.S. Armed Forces voluntarily. People with work permits or "deferred action" are likewise ineligible for voluntary enlistment. The announcement does not change the military enlistment law found at 10 USC 504. No service secretary has to date authorized the enlistment of DREAMers, or of people who have been granted "deferred action. This announcement does not expand the categories of noncitizens who are eligible to enlist in the U.S. Armed Forces (Army, Navy, Marines, Air Force and Coast Guard, including their reserve components and the National Guard). The U.S. Department of Homeland Security announcement did state that "honorably discharged veterans" age 30 or younger are eligible for deferred action under the terms of the memorandum signed by Napolitano. Given that most honorably discharged veterans under 31 who meet the memorandum’s requirements are eligible for naturalization under Immigration and Nationality Act 329, very few will need the relief afforded by the announcement. While this guidance takes effect immediately, to date, U.S. Citizenship and Immigration Services (USCIS) has not announced the procedure or cost to apply for deferred action and/or work authorization. On July 6, 2012, USCIS issued the following announcement on its website at www.uscis.gov :

"U.S. Citizenship and Immigration Services (USCIS) alerts eligible individuals NOT to submit a deferred action request under the Deferred Action Process for Young People memorandum issued by Secretary Napolitano on June 15. If you submit now, your application will be rejected."

Because USCIS has not as yet announced a procedure to apply for relief, we cannot be sure that the process will be simple or effective. Already, some Republican senators have written letters to Obama in strong terms against his announcement, and more ominously, Lamar Smith, R-Texas, chairman of the House Judiciary Committee — the committee with direct jurisdiction over DHS/USCIS's finances in these matters — has written to the director of ICE raising objection after objection designed to ensure that very few, if any, DREAMers actually get an employment authorization document. And that brings us back to the issue of time. It is entirely believable that DHS/USCIS will soon advertise themselves as under fire from Smith and his fellow conspirators in Congress and will push back the announced 60-day timetable to later, perhaps September or October.

Some argue that it is to Obama's political advantage to dangle a promise before these undocumented youth, and do nothing to actually deliver employment authorization cards — all the while blaming Republicans such as Smith for the inaction — since this will arguably give the immigrant community a reason to vote for him in November. While the president deserves to be applauded for his June 15, 2012, announcement, critics have reason to remain skeptical. After all, the Obama administration has deported more immigrants than any other administration in the history of the United States. As the famous saying goes "the devil is in the details." We have no choice but to adopt a wait-and-see approach while remaining cautiously optimistic that the procedure to apply for deferred action will be simple, practical and, most of all, announced soon. --By Karen-Lee Pollak, Bell Nunnally & Martin LLP

 

Karen-Lee Pollak is a partner at Bell Nunnally & Martin, where she chairs the immigration practice group.

DREAM Act Advisory | DREAMers Don't Get Scammed!!

Posted by Karen-Lee Pollak on Thu, Jun 21, 2012 @ 7:19 PM

DREAM ActDeferred Action for Certain Young Immigrants:

On June 15, 2012, DHS announced that certain young people who entered the U.S. before age 16 will no longer be removed from the United States. Qualifying individuals will be granted "deferred action" and be eligible for a work permit.

You cannot apply for deferred action at this time.   If you are currently in removal proceedings, you may be offered deferred action by Immigration and Customs Enforcement (ICE). Otherwise, you will have to wait until the government finalizes an application process.

If you believe you are eligible for deferred action but face imminent removal from the United States, contact either the Law Enforcement Support Center’s hotline at 1-855-448-6903 (staffed 24/7) or the ICE Office of the Public Advocate at 1-888-351-4024 (staffed 9am – 5pm, Monday – Friday) or [email protected].

You should only trust information from a reliable source, such as an official government website or reputable legal or charitable organizations. Consult with a qualified immigration attorney before requesting deferred action.

Eligibility

In order to be eligible for deferred action, an individual must prove that he or she:

  1. Was under 31 years old on June 15, 2012;
  2. Came to the United States under the age of 16;
  3. Has continuously resided in the United States for at least five years before June 15, 2012, and was physically present in the United States on June 15, 2012;
  4. Is currently attending school, has graduated from high school, has obtained a G.E.D. certificate, or is an honorably discharged veteran of the U.S. Armed Forces or Coast Guard;
  5. Has not been convicted of a felony offense, significant misdemeanor offense, multiple misdemeanor offenses, nor otherwise poses a threat to the community or national security.

Requests for deferred action will be reviewed on a case-by-case basis, and not every young immigrant will qualify. Individuals who are found to be ineligible due to criminal history or because they represent a danger to the community may be subject to removal or other immigration enforcement action. DHS considers many misdemeanor offenses to be "significant misdemeanors," including those for which the individual received no jail time. A single DUI is considered a significant misdemeanor.  If you have ever been arrested by the police, talk to a qualified immigration attorney before applying for deferred action.

Don’t get scammed!

The government will inform the public how to apply, within 60 days or by August 13, 2012. Until then, you CANNOT apply for deferred action. You should NOT "turn yourself in" to start the process. However, you CAN begin gathering the documents that you will need to apply for deferred action:

  1. Documents, such as a birth certificate or passport, showing age on June 15, 2012;
  2. Financial records, medical records, school records, employment records, and military records that demonstrate an individual came to the U.S. before the age of 16, AND resided in the U.S. for at least five years preceding June 15, 2012 AND was physically present in the U.S. as of June 15, 2012;
  3. School records, including diplomas, GED certificates, report cards, school transcripts and other evidence of enrollment, or documentation as an honorably discharged veteran of the U.S. Armed Forces or Coast Guard.

More information is available at: www.aila.org/deferredaction, www.uscis.gov, www.ice.gov, USCIS hotline at 1-800-375-5283, (staffed from 8 a.m. to 8 p.m), ICE Office of the Public Advocate hotline at 1-888-351-4024 (staffed 9am – 5pm, Monday – Friday), or www.unitedwedream.org.

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