Starting next month (December 5, 2017), USCIS will begin implementing new policy guidance regarding extreme hardship waivers and how they should be adjudicated. The new instructions for officers, as laid out in the updated USCIS Policy Manual, is a tremendous resource for applicants looking to understand what they need to prove to have a successful hardship case. One section of the guidelines refer to "Particularly Significant Factors," that the government has determined "often weigh heavily in support of finding extreme hardship." It is important to note that the presence of one or more of these factors do not necessarily guarantee that a hardship waiver will be approved. In other words, they do not create a presumption of hardship. Nevertheless, if the applicant can demonstrate, through reliable evidence, that one or more of these factors pertain to the case, the officer should give strong consideration to them.
There is a new bill making its way through the New Jersey Legislature that, if signed into law, would make New Jersey one of a select group of states to offer driving licenses to those who do not have lawful immigration status in the United States. The Bill, No. 2135, was introduced this past January (2014) and sponsored by Assemblywoman Annette Quijano and Assemblyman Joseph Cryan. It revises New Jersey Statute 39:3-10 to authorize the Motor Vehicle Commission to issue driving privileges to applicants who reside in New Jersey but "who are unable to prove lawful citizenship in the United States." The amendments provide that regulations be formulated to establish the type of documentation necessary for an individual to prove identity, proof of age, and New Jersey residency. Among the items listed include the following:
Late last week, the Republican Party finally released their much-anticipated list of principles regarding immigration reform, which the GOP was reluctant to grapple with last year. It is a one page document entitled "Standards for Immigration Reform" and arguably signifies a more open and willing attitude to address legalization for the eleven million undocumented aliens in this country-something which it was adamantly opposed to in 2013.
Can our country afford Immigration Reform? That is the question raised by Robert Rector of the Heritage Foundation. He argues making 11 million illegal immigrants eligible for legal status would "generate costs in Medicare and Social Security alone of $2.5 trillion above any taxes paid in." Rector argues that this is because only 15-20% of eligible illegal immigrants have a degree past that of high school, and only 40% have a high school diploma. Based on these numbers, Rector believes that the average household will put $10,000 into the system, but will take out $30,000 in benefits.The numbers, however, are suspect and do not tell the whole story. First of all, according to the Pew Research Center, 51% of illegal immigrants have a high school diploma, instead of 40% as Rector has claimed More importantly, it calculates the cost only during retirement years (where a household always takes more than it puts in) and did not calculate any taxes paid during working years.
DHS Secretary Janet Naplitano announced today the posting of a final rule in the Federal Register concerning the provisional or stateside waiver process that we had written about earlier. Under this new process--which will become effective March 4, 2013--waivers of the unlawful presence bar may, for some individuals, be filed here in the United States prior to a scheduled visa interview abroad. Stay tuned to the blog for further details and check out our website for future articles/information.
Is it better to Achieve, or to Dream? That is a question that was raised late last year by Senators Hutchison, Kyl, and McCain. They introduced the Achieve Act, which acts as a counter-offer to the Democrats' Dream Act. Both Acts seek to offer legal status to illegal aliens who came to the United States as children. (As of now, neither of these proposed Acts are law.) But if these are competing offers, then exactly has each party put on the table?
In an interesting decision out of the First Circuit, Sheikh vs. Holder, the Court of Appeals recently ruled that it was not an abuse of discretion for an Immigration Judge to deny a six-month continuance to the Respondent to wait for the passage of comprehensive immigration reform that would allow him to possibly adjust status. In this particular case, the Respondent, Mr. Sheikh acknowledged that while he was not eligible to adjust his status based upon an approved I-140, and that he had no other pending applications, he argued that the Judge committed reversible error by failing to grant his request for a postponement, so that "a change in immigration law would inure to his benefit." The BIA affirmed the Judge's decision, and eventually the case made its way up to the Court of Appeals. The case is an interesting read because it reviews the standard for continuances as laid out in Matter of Hashmi, 24 I&N Dec. 785 (2009), considerations of which include:
1) the [government's] response to the motion; 2) whether the underlying visa petition is prima facie approvable; 3) the [alien's] statutory eligibility for adjustment of status; 4) whether the . . . application for adjustment merits a favorable exercise of discretion; and 5) the reason for the continuance and other procedural matters.
DREAM Deferred Action and Advance Parole
USCIS has released the official form which individuals must use file to apply for an exercise of Deferred Action by the government. The form is the I-821D, which according to instructions, must also be filed with the I-765, Application for Work Authorization as well as an I-765WS Worksheet, which is something new. Additionally, the government has clarified and added more information to its Frequently Asked Questions regarding ages of potential applicants as well as what is considered to be "in school." Especially now, more than ever, it is critical that young people potentially affected by this program seek the advice of qualified immigration attorneys who understand the implications of applying as well how the status, if granted, may affect a person's eligibility for future applications or benefits. Things are rarely simple, especially when it comes to immigration status.
One of the concerns most clients have when visiting the office about the DREAM Deferred Action Program is whether they will be exposing themselves to removal proceedings by coming forward. This is a very legitimate and understandable reservation given that these people are, so to speak, "off the radar." By coming forward and, in a sense, "registering," they are providing their information and whereabouts to the government. Young people with criminal records and convictions should be very wary of rushing forward to apply. They most definitely would want to consult with qualified immigration counsel regarding their eligibility for Deferred Status given their involvement with the criminal justice system. For those without criminal records who can prove that they meet the criteria of the program, USCIS has attempted to allay those concerns by announcing that any information provided by an applicant as part of the process is protected, and will not be disclosed or referred to ICE or CBP, unless there are facts and circumstances that would render the applicant removable pursuant to USCIS' November 2011 NTA ("Notice to Appear") Memo. The NTA Memo pertains to "Egregious Pubic Safety Cases and Non-Egregious Public Safety Cases." In line with this policy, most applications for Deferred Action will not be filed with ICE directly, which is in charge of enforcements and removal. Rather, applicants under most cases are directed to file the applications with USCIS, which is geared more towards the granting of benefits. So, hopefully, this should be encouraging news to many out there who have apprehensions--understandably so--about coming forward. The best thing to do, of course, is to consult with an attorney to determine eligibility and to honestly assess reward against risk.