Birthright Citizenship--Whack-a-Mole Starts All Over Again in the Senate

Like the proverbial Whack-A-Mole game of our youthful carnival weekends, the anti-immigration crowd once again trumpets this unicorn as a solution to America’s undocumented immigration problem. Most recently Louisiana Senator David Vitter (he of prostitute fame) seeks to eliminate what some call “birthright” citizenship.

 I have blogged on this before, because this issue pops up each year, usually with a politician facing a primary, as a way to gin up support from the margins of the GOP. "Birthright citizenship" is a derogatory way of saying the following: If you are born in the United States, you are a citizen by right of birth in the United States. This was not always the case in America, at least as it applied to African Americans or Native Americans. It took the Civil War, and the 14th Amendment, to ensure that anyone born in the United States “and subject to the jurisdiction thereof” is a United States Citizen.

Since at least 1994, when Congressman Bob Stump (R-AZ) filed H.R. 3862 calling for, among other things, an end to “birthright” citizenship, the anti-immigration crowd has been championing the idea that the 14th Amendment does not mean what it says. The “anti-birthers” argue that a U.S. born child who is born of a mother or a father who are NOT “legally” in the United States is therefore not a citizen because their parents are somehow “not subject to the jurisdiction” of the United States.

Some of these anti-birthers go so far as to claim that the Supreme Court has only on one occasion, and that in footnote, discussed the meaning of “subject to the jurisdiction thereof.” The problem with a lie (among other issues) is that if you tell it often enough some folks will believe it is the truth (such as, we never actually landed on the moon). 

Well to help you out (and possibly steer some of our Congressman and Senators from the precipice of irrationality on this issue) let’s look at what the “subject to the jurisdiction thereof” means in the context of the 14th Amendment to the United States Constitution.

First, a little history lesson. One of the first acts of Congress, after the adoption of the Constitution, was the passage and signing into law of the Naturalization Act of 1790, a copy of which is framed in my office lobby. As noted in Wikipedia: 
This law limited naturalization to immigrants who were “free white persons” of “good moral character”. It thus, left outindentured servants,slaves, free blacks, and later Asians. While women were included in the act, the right of citizenship did “not descend to persons whose fathers have never been resident in the United States….” Citizenship was inherited exclusively through the father.In order to address one’s “good moral character,” the law required two years of residence in the United States and one year in the state of residence, prior to applying for citizenship. When those requirements were met, an immigrant could file a Petition for Naturalization with “any common law court of record” having jurisdiction over his residence asking to be naturalized. Once convinced of the applicant’s good moral character, the court would administer an oath of allegiance to support the Constitution of the United States. The clerk of court was to make a record of these proceedings, and “thereupon such person shall be considered as a citizen of the United States.
The Act also establishes the United States citizenship of children of citizens, born abroad, without the need for naturalization, “the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens. 
So, prior to the Civil War, white people of good moral character were considered citizens of the United States. Beyond that rules on U.S. citizenship were, at best, haphazard. 

Second, under universally accepted rules of statutory and constitutional construction, we must consider the “plain meaning” of the words used, when they were used. “[S]ubject to the jurisdiction thereof” meant, in 1866: 
to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the national government, unknown to the common law), the two classes of cases,- children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state,-both of which, as has already been shown, by the law of England and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. Calvin’s Case, 7 Coke, 1, 18b; Cockb. Nat. 7; Dicey, Confl. Laws, 177; Inglis v. Sailors’ Snug Harbor, 3 Pet. 99, 155; 2 Kent, Comm. 39, 42. See, U.S. v. Wong Kim Ark, 169 U.S. 649 (1898)(citing Elk v. Wilkins, 112 U.S. 94 , 5 Sup. Ct. 41 (1884, and a LONG line of subsequent cases).
Quite clearly, the phrase “subject to the jurisdiction thereof” has long worked to exclude only the children of diplomats and native Americans who were members of sovereign nations. Everyone else born in the United States is a U.S. citizen by birth. Period. 

Third, and finally, the Supreme Court clearly and definitively ruled on the full and entire meaning of the 14th Amendment in U.S. v. Wong Kim Ark in 1898, over 110 years ago! In that case, the court considered whether: 
a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States.For the reasons above stated, this court is of opinion that the question must be answered in the affirmative. U.S. v. Wong Kim Ark, 169 U.S. 649 (1898). 
Mr. Ark, and the Supreme Court, have long ago resolved this question for us. Children born in the United States whose parents are not officially working on behalf of a foreign government are STILL United States Citizens. 

The proverbial “Rule of Law” standard espoused by the anti-birther movement would seem to stop these folks in their tracks. But, the anti-immigration, anti-birthe rmovement will not be stopped by law, logic or by fact. Nonetheless, besides being good public policy, it is good to know that the law is already crystal clear, and that no act of Congress is going to change what the Constitution says. As of yet, the anti-birther movement is still a small minority and does not have the power to adopt or pass the Constitutional Amendment necessary to strip citizenship away from U.S. born children. After all, and as noted by the Supreme Court in 1898, we fought a Civil War over this issue.

Why is USCIS Taking So Long to Renew DACA Work Permits?

If the calls to our office are any indicator, there are thousands of DACA recipients whose work permit applications were filed at least three months prior to expiration, who are still waiting for their renewed work permits.  Without renewed permits, these individuals lose the right to work legally, the right to drive, and may once again accrue unlawful presence.

The DHS published a notice in October 2014 advising DACA recipients that they could file their request for extension up to 150 days (5 months) prior to expiration.  As with all things government, very few of the DACA recipients, who tend not to frequent government websites, knew about the memo and many did not file so far before expiration perhaps thinking that extending a work permit was a like extending a drivers license, its is done in a few minutes.  As an experienced immigration lawyer will tell you, the USCIS does nothing quickly, and certainly does not worry that a person may lose their job or their driver's license just because they cannot efficiently print a new card after a background check.

Perhaps responding to the increasing number of panicked calls to their service centers (and from immigration lawyers), USCIS issued another memo in January 2015 advising DACA beneficiaries to file in the window between 150 and 120 days prior to expiration.  USCIS also said that if the exension is pending more than 105 days, they can contact the USCIS online with a request for a status:
USCIS’ current goal is to process DACA renewal requests within 120 days. However, you may submit an inquiry about the status of your renewal request after it has been pending more than 105 days. To submit an inquiry, please visit egov.uscis.gov/e-request or call the National Customer Service Center at 1-800-375-5283 (TDD for the hearing impaired: 1-800-767-1833)
If your DACA renewal case has been pending for at least 105 days, we strongly encourage you to actively follow up with the USCIS directly at the website and phone number provided.

As to the first question?  Why is it taking so long to renew a DACA work permit after the applicant has paid $465 and taken their fingerprints?  The crushing number of cases?  Hardly.  Extensive background checks?  Not likely.  Bureaucratic intransigence and poor management of resources?  That sounds like a more likely answer.  Like all things with USCIS, getting answers takes time, but when that time directly impacts a person's ability to work and drive, it is time to get aggressive.

USCIS has uniformly refused to abide by a time in which it MUST issue these work permits (if all other criteria are met).  So the only solution for DACA recipients facing this type of problem is to call USCIS, and to also call their congressman or senator. Each of those offices have individuals whose job it is to inquire on behalf of constituents (including DACA recipients) as to why your case is taking longer than normal. Be aggressive in seeking a response to your application. You paid for "customer service," you deserve to get actual timely service.


DAPA and The Court: You Can't Get There From Here

There is that old story of a person stopping in a small town to ask directions outside an old general store.  An old man on the porch of that store, when asked how to get to the destination, says "you can't get there from here."   It seems that the District Court in Texas is having the same problem understanding the DHS's policy memos on DAPA and expanded DACA, as the old man on the porch had with understanding the road system.

Immigration law is complicated.  So complicated that at least one federal court judge has said: 
The statutory scheme defining and delimiting the rights of aliens is exceedingly complex. Courts and commentators have stated that the Immigration and Nationality Act resembles ‘King Mino’s labyrinth in ancient Crete,’ and is ‘second only to the Internal Revenue Code in complexity.'” Chan v. Reno, 1997 U.S. Dist. Lexis 3016, *5 (S.D.N.Y. 1997). 
The District Court Judge in the DAPA case was never an immigration lawyer prior to becoming a federal court judge.  And, we cannot fault the court for not understanding the nuances and complexities of immigration law, regulation, and policy.  But, the issues before the court are not really about immigration law.  The main issues are about general issues of standing and statutory construction.  Yet, even in these two areas the District Court in Texas has found itself unable to get there from here, even though a District Court judge in Washington, D.C. clearly understood these issues, and found DAPA and expanded DAPA fully within the executive branch's authority.

On March 9, 2015, the District Court in Texas issued a ruling refusing to rule on the government's Emergency Motion to Stay the Court's February order stopping implementation of DAPA, for the reason that the matters were too serious to rule quickly on the Motion. The Court also simultaneously asked for the government to explain the accusation from Texas that the USCIS has issued 100,000 three year (instead of two year) work permits to DACA recipients (individuals who are NOT covered by the District Court's ruling in February). Anyone who practices immigration law knows that our DACA clients have been getting three year work permits when renewing their DACA since late November 2014, when the Obama administration announced this change in policy, and simultaneously announced the expansion of DACA and DAPA.  

Secretary Jeh Johnson was quite clear that the three year work permit expansion would begin on November 24, 2014:
Extend DACA renewal and work authorization to three-years. The period for which DACA and the accompanying employment authorization is granted will be extended to three-year increments, rather than the current two-year increments. This change shall apply to all first-time applications as well as all applications for renewal effective November 24, 2014. Beginning on that date, USCIS should issue all work 3 authorization documents valid for three years, including to those individuals who have applied and are awaiting two-year work authorization documents based on the renewal of their DACA grants. USCIS should also consider means to extend those two-year renewals already issued to three years. 
The District Court wants the government to explain that they did, in fact, do exactly what they said they would do. This type of query is an example of the District Court not understanding the difference between DACA, which is NOT part of the litigation before him, and DAPA and expanded DACA which he has currently stayed. It also appears that the District Court is simply looking for reasons to delay an appeal in this matter, rather than dealing with the factually erroneous finding that Texas is harmed by DAPA and expanded DACA (but not apparently by DACA), and that the administration had to comply with the APA in issuing DAPA and expanded DACA (although the Supreme Court recently gave extraordinary policy making authority to the executive branch, exempting policy changes from the APA). 

Hopefully, the Obama Administration will realize that the District Court has no intention of lifting its stay, and will file an expedited appeal to the 5th Circuit Court of Appeals, where at least 12 states are set to argue that they are harmed by NOT have DAPA and expanded DACA in place.

Undocumented Parents of U.S. Citizens keep asking us, "when will DAPA start?"  The answer, unfortunately, is that we do not know when it will begin.  Certainly not in the original time frame envisioned by Secretary Johnson.  But, we remain convinced that the Court of Appeals, and even the Supreme Court will both find that there is no real standing in this case for states to object, and that even if there were standing, Secretary Johnson's policy memos are will within the purview of the executive branch and that no compliance with the APA was necessary.   



9 PREGUNTAS MAS RELEVANTES DE DAPA Y LAS RESPUESTAS QUE CONOCEMOS HASTA AHORA

1.     No estoy casado con mi pareja, pero tuvimos hijos en conjunto.   Puedo aplicar?
Si. No tiene que estar casado para calificar a DAPA. El único caso en que puede haber inconveniente es si el nombre del padre no aparece en el certificado de nacimiento porque los padres no estaban casados. En este caso lo que simplemente debe hacer es corregir el certificado de nacimiento en el condado donde el niño nació y reflejar el nombre del padre en el certificado. Si la madre no estuviese de acuerdo, un test de DNA sería necesario. 
2.     No tengo hijos propios pero mi esposa tiene hijos que hemos criado en conjunto. Yo califico?
Si. Siempre y cuando estuviesen casados antes que los niños cumplieran 18 anos. Inmigración los considera sus hijos para el caso de las aplicaciones de inmigración. Si actualmente usted no está legalmente casado, no se pueden considerar a estos niños como propios.     

3.     Yo fui deportado antes del 2010, pero me devolví a los Estados Unidos después de que me deportaron. Aun califico?
Si. Siempre y cuando usted no fuera deportado o estuviera ausente de los Estados  Unidos después de enero 1, 2014. Las deportaciones pasadas no afectan la elegibilidad de la persona para el DACA.

4.     Mi hijo tiene DACA pero yo no tengo hijos que son ciudadanos o residentes permanentes. Aun puedo aplicar?
No. Desafortunadamente no puede aplicar. DAPA solo da la autorización de trabajo a los padres de ciudadanos norteamericanos y residentes permanentes. El presidente escogió no incluir a los padres de los hijos DACA en el programa de DAPA.   

5.     Yo fui arrestado y condenado por DUI 10 hace diez (10) anos. Aun soy elegible para DAPA?
Todavía no tenemos una respuesta solida a esta pregunta. Hay rumores de que inmigración le dará el DAPA a la gente que fue encontrada culpable hace mas de 5-7 años atrás. Sin embargo, existen otros rumores que dicen que con solo un (1) DUI seria descalificado. Tendremos que esperar y ver la dirección que inmigración tomara en este aspecto en los próximos meses. 

6.      Podría calificar así no haya reportado los impuestos durante el tiempo en que he trabajado en los Estados Unidos?
Hasta ahora no existe un requisito que diga que usted debe haber pagado o reportado sus impuestos.  Esto puede cambiar, pero si este es el caso usted probablemente debe pagar los impuestos desde el 2010 hasta la fecha. Lo que nosotros estamos seguros en asumir es que si usted recibió el DAPA por tres anos, y usted quiere renovar el permiso de trabajo, lo más seguro es que a usted le exijan que muestre el reporte de los impuestos de los anos que trabajo con el permiso de trabajo de DAPA.  

7.     Que pasa después de que Obama deje la presidencia? El programa se terminaría?
No tenemos la manera de saber con certeza que pasaría una vez Obama deje la presidencia. Lo más seguro es que esto dependerá de dos factores: Si una reforma de inmigración integral pasa en el 2015, y si un republicano o demócrata es elegido presidente. Si una reforma integral pasa el próximo ano, DAPA no importaría mucho puesto que la gente tendría algo aun mucho mejor por aplicar. Si la reforma integral no pasa y un republicano es elegido, el próximo presidente cancelaria el DAPA. Si embargo, aun así inmigración no tiene manera de conseguir 4,000,000 de personas y deportarlas, pero por lo menos usted tendrá permiso de trabajo por dos años.

8.     Puedo dejar los Estados Unidos una vez mi aplicación de DAPA sea aprobada?
Si. Usted puede aplicar por una autorización de viaje y en la mayoría de los casos retornar a su país de origen.

9.     Yo tengo cinco (5) condenas por manejar sin licencia. Estas condenas me impedirán calificar para el DAPA?
No. Si usted tiene condenas por ofensas de tráfico como manejar sin licencia, estas condenas no lo descalificaran para el DAPA. 

Notificaremos a todos nuestros clientes y amigos de cualquier cambio de estas preguntas, y, por supuesto, los detalles del program cuando son anunciados!


The Form I-9: A Little Document with Big Consequences


Employers are required to verify the identity and employment authorization of individuals hired for employment in the United States.  This is done by the employer and employee completing a Form I-9.  In fact, we have probably all had to fill out a Form I-9 at one point or another in our careers.  Likely, we did not pay much attention to the document and simply viewed it as another small paperwork hassle.

However, there can be big problems for employers who take this attitude as an incorrectly completed Form I-9 can lead to substantial penalties.  Many employers mistakenly believe that penalties are only assessed to employers who hire undocumented workers and so they do not take the time to make sure the I-9 is completely and correct filled out.  They are often shocked to discover that fines can be assessed regardless of whether or not the employee is legally able to work in the United States.   

For example, ICE recently fined a small New York company several thousand dollars because the company did not fill out Form I-9’s within three days of hiring some of its employees.  All of the employees were authorized to work in the United States legally. The company was further fined because some of the Form I-9’s had not been fully completed.  Again, all of the employees were legally authorized to work in the United States; the employer simply skipped over some required fields in the form.

In short, the Form I-9 is a little document that can have some very big consequences.  Employers need to ensure that their human resource departments are adequately prepared and trained in how to correctly complete the Form as an incorrectly completed Form I-9 is a large liability despite the fact that the employee may be authorized to work in the United States.

 

5 Reasons Why You Shouldn't Wait Another Moment to Become a U.S. Citizen

President Obama, in his recent Executive Action on Immigration, made the naturalization of the more than 8 million legal permanent residents in the United States a priority. The President is currently promoting naturalization, possibly letting applicants pay with a credit card, and may consider a fee waiver. The time to naturalize is now.

Legal permanent residents, also known as residents or green card holders, may apply to naturalize, or become a citizen after 5 years of being a permanent resident (or 3 years if received got your green card through a U.S. citizen spouse). You can file your application 90 days before your 5 (or 3) years are complete.

You should begin this process as soon as you are eligible, and here's why:

1. Immigration authorities can almost never deport you once you are a citizen.

Once you become a citizen of the United States, immigration authorities cannot deport you under any circumstances unless they denaturalize you. Immigration can only denaturalize you if you lied or committed fraud on your naturalization or green card application. This means that no matter what happens in your future, no matter what mistakes you make, you cannot be sent back to your home country unless your green card or naturalization applications were fraudulent.
Remember the brothers who bombed the Boston Marathon? They were naturalized citizens, meaning they were not born U.S. citizens. The surviving brother, regardless of what crimes he is convicted of, cannot be deported due to his U.S. citizenship. Immigration simply cannot do it. While you should never violate laws of the United States just because you are a citizen, if you do make a mistake, citizenship will stop you from being deported at the end of your punishment. 

2. Immigration authorities will be able to deport you from the United States if you are not a citizen, no matter how long you've been a green card holder or how long you've been in the United States.

If you are not a citizen, regardless of favorable considerations in your case, immigration will always have jurisdiction over you and the authority to deport you depending on your actions. And even if you do not commit any intentional crimes, accidents do happen. What if you are not a citizen, get distracted while driving, get into an accident, and kill someone? Depending on how you are charged criminally, there will always be a possibility you could be deported as a result of this accident. Neither extensive residency in the U.S. nor your good character before any accident or crime can guarantee you won't be deported.

3. You do not have to relinquish other citizenships to gain U.S. citizenship.

Contrary to some popular belief, the U.S. does not absolutely require you to relinquish all previous citizenship before naturalizing. While there are a very few exceptions and your case might be different if you hold a position of nobility in another country, the U.S. will let you retain your other citizenships when you naturalize. 

4. You can travel outside the U.S. with much more freedom as a citizen than as a green card holder.

Many green card holders do not know that they do not have complete freedom to travel outside the United States with a green card. If you travel abroad for more than 6 months at a time, you could be denied re-entry when you come back to the United States. And this rule applies no matter how long you have been a resident. With U.S. citizenship, you are able to travel outside the United States without time restrictions.  

5. You can apply for green cards for your family members much faster as a citizen than as a resident.

While the area of law governing whether you can give lawful status to your family is extremely complicated, in almost every case, your spouse, parent, or child can get a green card through you MUCH more quickly when you are a citizen instead of a resident. The process to apply for your family will be a year to several years shorter if you are a citizen. So if you're not naturalizing for yourself, do it for your family!

Overall there are very few reasons not to naturalize once you are eligible, so start the process now!

Posted by:   Anna Erwin, Esq.  Associate Attorney

aerwin@immigration.net

It's Time to Prepare to File the H-1B Visa--Lottery Starts on April 1, 2015

Its remarkable how fast the April 1, 2015 H-1B filing deadline has arrived this year!  We want to remind all employers that if you are considering hiring a foreign national this year, you must begin the H-1B petition process now, to have it ready on April 1.  There appears to be little, if any chance that Congress will act on immigration reform this year, including a much needed increase in the H-1B cap. We also expect a record number of applications this year, given the expanding economy and lagging US educational system. As soon as possible, we encourage you to identify any employees who may require H-1B sponsorship. This year we again expect the cap to be reached as early as the first week of April. Once the H-1B cap has been reached, employers will be unable to file new cap-subject H-1B petitions until April 1, 2016.

In addition to the 65,000 H-1B cap-subject H-1B visas, there are an additional 20,000 visas available for individuals who have earned a master’s degree or higher from an accredited U.S. educational institution. We expect that Master’s degree H-1B visas to also be exhausted in the first week of application (USCIS is required to hold the application period open for 5 business days before closing it to new application, before conducting its “lottery” for H-1B visas).  We advise employers to make H-1B sponsorship decisions within the next few weeks. It is important to prepare H-1B petitions as early as possible and well before April 1 so that a complete petition can be submitted to USCIS on the first day that the quota opens.

We will work with you to file H-1B petitions right up until April 1, and afterward, for as long as H-1B visas are available. We strongly advise clients to finalize their H-1B petition decisions by February 1, 2015. Each petition requires certification by the Department of Labor (DOL) of a Labor Condition Application (LCA). DOL regulations allow for up to seven working days to certify an LCA. And, given this years demand, we expect DOL to take the maximum period allowed. 

We also encourage employers of H-1B visa holders to ensure that they are complying with all relevant H-1B and DOL regulations pertaining to work sites and Labor Condition Applications, and to conduct an audit of the H-1B Public Access Folders on a yearly basis to ensure that all relevant and necessary documentation is on hand for inspection.  

Why Georgia's SB-6, Seizing Driver's Licenses from DACA Recipients, Is Unconstitutional (and Bad Public Policy)

In an act that seems like a desperate last gasp to remain relevant, Georgia's anti-immigrant caucus has once again submitted far-reaching anti-liberty legislation to the Georgia Legislature in November 2014.  SB-6 was introduced by Senator Josh McKoon (R)(Columbus) during the November pre-filing period. SB-6 has remarkable breadth and overreach, and is not just limited to seizing driver's licenses from lawfully present DACA recipients.  It actually authorizes the Department of Driver's Services to take citizen's DNA before giving them a license.  This unnecessary DNA Seizure bill is simply not in the best interests of Georgia.  

As if the seizure of driver's licenses already issued to DACA recipients and other beneficiaries of federal immigration Deferred Action (such as battered women, victims of crimes, and those whose removal is not the national interest) is not enough, SB-6 also gives no legitimate reason why these noncitizens should be deprived of their legal right to drive, as opposed to allowing other noncitizens, including those who also have "lawful presence," but which the bill confuses with "lawful status." 

To educate those unfamiliar with US immigration law, DACA beneficiaries have been declared by DHS and USCIS to be persons who have "lawful presence" in the United States.  The same is true for other beneficiaries of federal Deferred Action.  They do not necessarily (although they could) have "lawful status," such as visa holders and permanent residents have, but they do have the right to obtain a state issued ID under the terms of the REAL ID Act of 2005.

SB-6's provisions related to the seizure of driver's licenses are found in Section 4.  This section tries to modify the terms of Georgia's acceptance of the Identification provisions of the REAL ID Act of 2005 by deleting the authorization to provide state issued identification to persons with "Approved deferred action status."  The simple reality is that the State of Georgia was required to adopt ALL of the provisions of the REAL ID to have state issued identifications to remain valid for travel and other federal purposes.  By striking this provision in an attempt to seize currently issued driver's licenses, the state legislature would render ALL Georgia identifications invalid for all purposes, including for travel and driving outside the state's borders.  

SB-6 also attempts to be too clever by half, by changing the wording of "lawful presence" to "lawful status" throughout the Georgia Code Section (40-5-21.1) authorizing the issuance of state identifications or licenses.  Its obvious that no attorney who understands federal immigration law advised the writer of this bill about the effect of doing so. The word "status" in the context of deferred action is defined within The REAL ID Act itself, wherein (as in current Georgia law) it is referred to as "deferred action status."  

In much the same way that the ultimately futile and useless (but economically harmful) HB-87 tried to define the non-existent, yet intentionally inflammatory term "illegal alien." SB-6 attempts to define "lawful alien status."  Unfortunately for the authors of SB-6, a term such as this can only be defined by the federal government, which enjoys complete authority over immigration law.  The State of Arizona found that out the hard way (as did the State of Georgia), when the US Supreme Court shut down its anti-immigration legislation in Arizona v. United States, 567 U.S. ___ (2012). In that case, Supreme Court clearly stated that: "[f]ederal governance of immigration and alien status is extensive and complex."  The Georgia State Legislature cannot define its way into a constitutionally valid seizure of drivers licenses.

SB-6 also does things like:
  • give the DDS the right to obtain "DNA" and "retinal scans" from any individual it wishes before giving them a ID or a driver's license, 
  • release personal information of ALL noncitizens to any government agency for any reason, 
  • taking fingerprints for all noncitizen licenses (including lawful permanent residents), 
  • require sworn affidavit to verify status, 
  • increase the fines for driving without a license to punitive levels (for everyone), 
  • allow for seizure of vehicles and impounding for 60 days of any vehicle driven by a driver without a license (for everyone and regardless of the vehicles owner), and 
  • require the DDS to participate in the "E-Verify" initiative for DMVs (effectively giving EVERY Georgian's Picture and ID to the federal government for use in E-Verify, effectively creating a national ID for Georgia residents (but not anyone else).  
  • All with NO funding allocated to carry out any of these tasks.
It's amazing what a "little" bill like this can do to destroy civil liberties!

But, the main reason I write is as to why SB-6, if passed, would be immediately challenged in Federal Court and why that Federal Court Judge would find it unconstitutional.  The State of Arizona, through a Governor Brewer executive order, denied driver's licenses to DACA recipients, even though under state law (virtually identical to Georgia's), they were required to issue such a license. The State of Arizona was sued by the Arizona Dream Act Coalition in attempt to secure driver's licenses for DACA recipients.  In late November 2014, the Ninth Circuit Court of Appeals found that the action by Arizona in denying the driver's licenses to Deferred Action beneficiaries violated the Equal Protection Clause of the U.S. Constitution, and ordered the state to begin to issue the licenses to DACA (and other Deferred Action) beneficiaries. The Supreme Court then, a week later, denied cert and refused to consider the case, putting to an end another anti-immigrant effort.  

The opinion is worth the read.  The proponent of SB-6 has cited a Nebraska case, which purports to be contrary to the Arizona decision, in support of his bill.  But anyone who reads that case will see that the reported opinion simply states that Nebraska law only issued driver's licenses to people in "lawful status" who could be verified by SAVE and thus there was no equal protection violation. The opinion is flawed, however, in that DACA recipients can be verified through SAVE, and Nebraska also gives driver's licenses to individuals without "lawful status" (as does Georgia), and is a point that was actually reviewed and rejected in the 9th Circuit decision.  Today, Nebraska is the only state in the US which currently does not. grant driver's licences to Deferred Action beneficiaries.  

From a public policy perspective, keep in mind that this is yet another black eye for a state which still has some of the highest unemployment rates in the county.  DACA recipients and other Deferred Action recipients have lawful presence. They can and do legally work for many Georgia employers.  They pay taxes, own houses and own cars, and have established a life out of the gray margins of society.  What is the purpose of depriving someone who is lawfully here, legally eligible to work, of a drivers license?  Some sort of purported punishment for not agreeing with Federal Immigration policy?  Do the proponents of this bill actually think this will "chase" people from the state?  If so, they are, simply put, delusional.  Its a monumental inconvenience not have a driver's license, but it does not stop people from driving, regardless of the fines imposed, and it says, once again to the nation that Georgia does not like foreign people.  (Georgia also likes to take your DNA and give your picture and personal information to the Feds for a national id database).  


Let's hope calmer and wiser heads prevail underneath the Gold Dome this session, and SB-6 never sees the light of day.  It deserves to be forgotten, and like it counterpart HB-87, is destined for the dustbin of history.  

Obamacare and Foreign Nationals: Who Pays the Tax Penalty?

We have recently received a lot of questions about the Affordable Care Act ("Obamacare") requirement that ALL persons in the United States prove that they have health insurance or face a penalty, and specifically whether that means ALL foreign nationals.  The answer is yes, and no. 

Anyone who meets the definition of a "tax resident," which is a person physically present in the US for more than 183 days in a year, must show that they have health insurance. This anyone with "lawful status" in the United States:  As The IRS Says on their website:
U.S. citizens living in the United States are subject to the individual shared responsibility provision, as are all permanent residents and all foreign nationals who are in the United States long enough during a calendar year to qualify as resident aliens for tax purposes. Foreign nationals who live in the United States for a short enough period that they do not become resident aliens for federal income tax purposes are not subject to the individual shared responsibility payment even though they may have to file a U.S. income tax return.
This is somewhat misleading because it does not break down the difference between documented and undocumented immigrants.  For example, H, L, E and other valid visa holders must comply with the health insurance requirement, and are entitled to the assistance under Obamacare to obtain it.  
However, the answer is different for undocumented immigrants.  For those without "lawful presence" in the United States, the requirement to obtain health insurance is waived, and there is no penalty to be assessed against the individual. On a person's taxes they will have to indicate that they are exempted from the insurance mandate.  Undocumented immigrants INCLUDE DACA recipients who generally have "lawful presence," but who have been specifically excluded from compliance.  
Finally, undocumented immigrants do NOT include individuals on other forms of "deferred action," as they do have lawful presence.  For example individuals waiting for a U visa number after approval or VAWA approval waiting for permanent residence have "deferred action". Also, individuals with U Visas and TPS status, both of which are considered a "lawful status" by the USCIS, will have to seek health insurance or pay the tax penalty.  
And you can see, the issue of Obamacare is complicated. Seek out qualified legal, tax and insurance assistance, and, as always, watch out for scams and frauds. If it is too good to be true, it is.  

TPS for Syria Renewed!

Yesterday USCIS announced that it would renew Temporary Protected Status for Syria, extending TPS for Syrians currently with TPS, but also including all eligible Syrians who are currently present in the United States as of January 5, 2015. Temporary Protected Status (TPS) is a temporary immigration benefit that allows qualified individuals from designated countries (or parts of those countries) who are in the United States to stay here for a limited time period.

The resignation period for TPS has been extended from April 1, 2015 through September 30, 2016. This permits Syrian nationals who were physically present in the United States on January 5, 2015 to register or re-register for TPS. Those currently on TPS status who wish to extend their status must re-register during the next 60 days, through March 6, 2015. This 18 month extension allows TPS re-registrants to apply for a new Employment Authorization Document (EAD).  Any re-registrations who do not receive their new EADs until after their current EAD expires will automatically get a 6 month extension on their current EADs.

This offers a great relief for Syrians who wish to extend their stay in the U.S. and are completely out of options, or who those who just need a backup to their plans. Whether you or someone you know is renewing their TPS or applying for the first time, it’s beneficial to consult with a qualified attorney to ensure eligibility and assist with proper filing.


As an Arabic-speaking immigration attorney with years of experience, and specifically with TPS and Asylum, I would be happy to assist with any questions regarding Syrian TPS or any other immigration question. Please feel free to contact me, Hiba Ghalib, at 404-949-8164 or email hghalib@immigration.net