Over the last few weeks, there has been significant coverage of immigration in the media due to the government shutdown as well as President Trump's bold agenda to tighten border security and restrict immigration. While much attention has been given to the fate of "Dreamers" and their ability to acquire permanent residency, the welfare of their undocumented parents as well as family immigration, in general, has been given short shrift. To state things plainly, there is a movement underway to drastically limit family immigration. Under President Trump's Framework on Immigration Reform and Border Security, the Administration is seeking to curb the legal migration of family members and limit visas to only the nuclear family. Under the its definition, only spouses and minor children of US Citizens and Lawful Permanent Residents are considered eligible to apply for a green card. Parents, adult children 21 years or older, as well as siblings have been relegated to the category of "extended family," which traditionally would encompass cousins, aunts and uncles. In short, the following preference categories would be eliminated under President Trump's plan:
Individuals seeking to immigrate to the United States must normally demonstrate that they will not be a "public charge"-that is, that they will not become primarily dependent on the government for subsistence (usually in the form of public cash assistance for income maintenance or institutionalization for long-term care at government expense). Since the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), officers have traditionally considered the following factors:
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