#1 of 11 Million--Is Obama Serious About Immigration Reform?

Despite the relief that Deferred Action for Childhood Arrivals, or DACA, brought to thousands of young American immigrants in 2012, some 11 million immigrants in the United States remain undocumented today due to gaps and inconsistencies in our immigration system. They live in fear each day that immigration officials will deport them due only to their lack of status and take them their families and lives in the United States.

On August 20, 2014, 11 of these undocumented American immigrants presented their cases to Immigration and Customs Enforcement requesting “deferred action.” Deferred action refers to the power of the government to defer action on one’s case and grant him or her temporary legal status. A grant of deferred action would allow these immigrants to have temporary protection from deportation and the ability to work and drive in the United States.

The 11 undocumented immigrants that presented their cases are from all over the world:  Mexico, Senegal, Philippines, and South Korea to name a few.  Even though they all have different cultures and experiences in the United States, they’ve all settled here and now consider themselves Americans.




However, none have been able to obtain legal status under current immigration laws. 

Kuck Immigration Partners is extremely proud that our client, Eduardo Samaniego, volunteered to be one of the 11 to present his case.  Eduardo came to the United States legally from Mexico in 2009 when he was 17 years old. Eduardo attended high school in Georgia and learned English in just six months. He graduated top of his class and has been accepted to college in Massachusetts on a full scholarship.

Despite Eduardo's success, he does not qualify for any legal status in the U.S.

The debate on immigration reform and how broad or narrow the reform should be has been highly politicized by both Democrats and Republicans. In addition, the 11 million undocumented immigrants have been grouped together into one faceless class with little focus on each immigrant's individual story. The “1 of 11 Million” campaign seeks to humanize the immigration debate and show that the 11 million undocumented immigrants are incredibly diverse and successful people, not just statistics.

Define American, along with Kuck Immigration, encourages undocumented immigrants to share their stories at http://www.defineamerican.com/stories and urges the Obama Administration to take broad and immediate action towards immigration reform.

By Anna Erwin, Associate Attorney

IMMIGRATION REFORM AND DUIs

DUI is a common crime that could tank your chances at lawful immigration status.

When it comes to immigration and criminal offenses, many people think that violent crimes, drug offenses, and gun crimes will harm your chances of getting lawful status the most. But one crime that has been creeping up as a major road block to achieving lawful status is the DUI (driving under the influence of alcohol or drugs).

DUIs and DACA

Previously, immigration typically only considered DUIs as a negative factor when evaluating the case as a whole. A conviction for DUI wouldn’t automatically and definitively prevent someone from getting lawful status. However, in 2012, when the Department of Homeland Security announced Deferred Action for Childhood Arrivals (DACA, the “Dream Act,” or “accion deferida”), many were surprised to see that DUIs were included on the list of “significant misdemeanors” that would definitively and permanently bar someone from receiving DACA.

The guidelines state that “significant misdemeanors” are:
Regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or,
If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.
(http://www.dhs.gov/deferred-action-childhood-arrivals).
When broken down, these guidelines state that they are going to punish someone who:  

Commits domestic violence
Commits an abusive or exploitive sexual act
Burglarizes
Carries unlicensed firearms
Deals drugs;  or
Someone who spends an entire 3 months in jail
just as harshly as someone who had too much alcohol in their blood while driving.

Notice the guidelines don’t say that the DUI had to result in any harm to anyone; you could be pulled over for blinking taillights while driving safely otherwise and simply have a little too much alcohol in your system.
While all of the crimes listed in the DACA guidelines involve actual or significant risk of harm to others (and no one is debating how dangerous drunk driving is), violent, sexual or drugs crimes were historically treated and punished much more severely than a DUI. Many people still don’t realize that you can shoplift and possess marijuana and get DACA, but you can’t get it with a DUI.

Georgia: Tough on DUIs

In Georgia, and in many other states, if your blood alcohol content (BAC) is over a .08, you are “per se” driving under the influence of alcohol regardless of your age, gender, or tolerance for alcohol (http://www.madd.org/laws/law-overview/08_Per_Se_Law_Overview.pdf). 

While there are lots of nuances you should discuss with your lawyer,  it is extremely difficult to fight a DUI, regardless of the circumstances, if there is evidence that your BAC was .08 or higher. Even more importantly, most states have lesser DUI offenses for drivers with BACs below .08, but in Georgia, you may be charged with a full DUI even if your BAC is .01!

Without a doubt, immigration is taking DUIs more seriously, and states are making it easier than ever to charge someone with a DUI. Many of the rumors and proposals for immigration reform have specifically addressed immigrants with DUIs or specifically excluded immigrants with DUIs from benefiting from reform.
While we don’t yet know the specifics of immigration reform, there is a possibility that the one-beer-too-many you had before driving away from a party 20 years ago could now drown your chances of getting legal status in the United States.

Posted by Anna Erwin, Associate Attorney

5 Common Myths About Immigration

A surge in unaccompanied minors fleeing Central America landed immigration issues back on the top of news feeds this summer, renewing discussion on our current system and the potential of future comprehensive immigration reform (or lack thereof).  Not unlike any other highly charged political debate, this issue brought out some interesting opinions which needless to say were fueled by confusion and fear rather than actual fact. 

Some common misconceptions include the following:

  1. MYTH: Immigrants will take jobs away from US citizens. FACT:  Demand continues to increase for many jobs that not many Americans are willing or able to perform including increasing need for high-skilled workers in STEM (science, technology, engineering and mathematics) fields. Not to mention the countless number of immigrants who are skilled in business and invest in job-creating enterprises in the United States.
  2. MYTH: Immigrants who are here illegally are probably running from the law or are engaged in illegal activity here in the U.S.FACT: Most undocumented immigrants contribute positively to society and have a clean background. Studies have shown that immigrants are less likely to commit crimes or be behind bars than U.S.-born citizens and high rates of immigration are not associated with higher rates of crime.
  3. MYTH: There’s a way to enter the country legally for anyone who wants to get in line. FACT: For undocumented immigrants, there is no “line”. There are no papers for them to file to get on path to legal status. And undocumented immigrants already in the U.S. have virtually no way to legalize their status. If they leave the country to apply for legal status, current immigration laws bar them from reentering the country for 3 to 10 years, separated from their families (often children and spouses who are U.S. citizens) for over a decade.
  4. MYTH: Immigrants, whether documented or undocumented, are an economic burden. FACT: Immigrants are essential to the U.S. economy and are a critical part of the workforce.  They work hard and perform essential jobs that are vital to keeping the U.S. economy moving forward. In 2010, undocumented immigrants paid $8.4 billion in sales taxes, $1.6 billion in property tax, and $1.2 billion in personal income tax. They also contribute to the Social Security system and they will never be able to receive any benefits from it.  Plus U.S. law strictly prohibit undocumented aliens from obtaining welfare, food stamps, or any other type of public assistance.
  5. MYTH: Most Americans support mass deportations and are against immigration reform. FACT: The estimated 11 million undocumented individuals in the United States is equivalent to the entire populations of Washington, Oregon and Idaho combined. It would be impossible to locate and deport that many people. Even if realistic, a mass deportation would cost billions (over $200 billion by one estimate), translating into $1000 in new taxes for every person in America. Not to mention numerous polls have shown that 60-70% of Americans are actually in favor of comprehensive immigration reform. 


Obama y la Accion Executivo Sobre Inmigracion. Que, Como, y Cuando?

El Presidente Obama declaro que ya llego el tiempo en el cual va crear una expansión de su programa de discreción fiscal sobre la tema de inmigración.  El gran "Pero" es que no ha dicho exactamente lo que va  hacer.  Por cual razón es importante no dejarse engañar antes de que haya un anuncio oficial del programa que se va a instituir, se conozcan los requisitos para aplicar y  cuando se hará efecto.

Por ahora recomendamos que si creen que calificaran para algún programa, que se mantengan informados y vayan preparando sus documentos de identidad y pruebas de residencia en el país.  Hay una expectativa que los que han vivido por un mínimo de 10 años en los Estados Unidos sin condenas criminales y que tienen hijos aquí, incluyendo los que están cubiertos por DACA, podrán participar en el programa.  No se conoce exactamente lo que el Presidente Obama puede hacer, pero eso es lo que se murmura hasta ahora.

Si hay anuncio o acción del Presidente, esperamos que sea similar a los que ha hecho antes y habrá un periodo de espera de 60 días antes de hacerse efectivo el beneficio, tal tiempo será normal.  Se especula que dicho anuncio se haga el día siguiente a Labor Day (día del trabajador) en la primera semana de Septiembre, pero NADA es asegurado en el momento. 

 Que Debo Hacer Para Prepararme? -  Obtenga una copia de todos sus declaraciones de impuestos que ha hecho en los Estados Unidos sin importar cual número de social se utilizó para hacer la declaración.  Obtenga cualquier información que confirmar su presencia física en los Estados Unidos por los últimos 10 años, incluyendo talones de cheques de pago, giro de Western Unión, fotos, acuerdos de alojamiento, registros de nacimiento de sus niños, y registros o calificaciones de escuela de sus niños.  Considere todo lo que pueda tener una fecha como pruebas, lo que debe recolectar es limitado solo por su imaginación.  

Si tienes un cargo crimina en el pasado, debes obtener una "disposición" del caso y hablar con un abogado con experiencia en inmigración y casos criminales para hacer el intento de legalmente borrar la condenación.  Cargos de DUI pueden ser un problema. Si tienes condenas por DUI debes hablar con un abogado y recuerdes que por eso no se debe tomar y manejar!

Tome en cuenta que si llega el Presidente Obama hacer algún permiso especial para los indocumentados, será solo temporario y NO será LEY ni amnistía ni cambiara su estatus, entonces estará sujeto a ser eliminado por el siguiente presidente.  Es importante que ANTES de solicitar cualquier beneficio anunciado o por anunciarse, que hablen sobre SU CASO particular con uno abogado de  Kuck Immigration Partners para determinar su elegibilidad de participar.

Finalmente, NADA será GRATIS.  Debes estar preparado de pagar en lo mínimo $1,000 por cada persona elegible si hay un beneficio anunciado por el Presidente Obama, fuera de costos de asesoría legal.


Si tiene preguntas ahora sobre su status migratorio, llamemos hoy.  


Obama Can Fix Some Immigration Problems

From my Editorial in the Atlanta Journal Constitution on August 1, 2014


President Obama has been timid, at best, in using his executive powers to alleviate the current immigration crisis, preferring to wait for what can only be described as a Unicorn-- bi-partisan immigration reform.  Recently, the President indicated that he is ready to use this practical tool to inject rationality and humanity into a broken immigration system that is neither responsive to family nor business realities.

Executive powers are not a “loophole." They have been used historically to interpret and implement immigration statutes and are commonly used by executive agencies. With these broad powers, President Obama can do much to legally alleviate the current immigration crisis.

The President can issue parole in place for immediate relatives of US citizens who are the beneficiaries of approved visa petitions. The Attorney General has the authority to parole into the U.S. under such conditions as he may prescribe for urgent humanitarian reasons or significant public benefit any alien applying for admission to the U.S. Once granted parole, these individuals could obtain lawful permanent residence through the US Citizen spouses. Parole in place has already been used for immediate relatives of the U.S. military and for Cuban arrivals. 

Obama can instruct immigration officials to apply more discretion to favorably adjudicate waivers for undocumented immediate relatives of U.S. citizens. These individuals would be eligible to legally process their residence papers, if granted a waiver. Under a previous administration, immigration agencies exercised discretion favorably to stop deportation of certain Central American refugees under a law called NACARA.

The Administration can find, as did the 6th Circuit Court of Appeals that those with Temporary Protected Status (TPS) are eligible to apply for permanent residence if they are the beneficiaries of approved visa petitions. Certain citizens of Haiti, Syria, El Salvador and Honduras, among others, have TPS because of war or natural disasters back home.

Although the Administration cannot increase the number of family and employment-based immigrant visas, it can alter the way family units are counted against the worldwide immigrant visa quota, counting only one number per family unit against the quota, instead of counting each member of the family against the quota. This would open up the number of available visas and reduce the cruel wait times that separate families and deprive employers of skilled workers.

The Administration can allow all foreign nationals who are the beneficiaries of approved immigrant visa petitions to apply for waivers while in the U.S.  Currently, this procedure is only available for immediate relatives of U.S. citizens. Foreign nationals who are not the beneficiaries of immediate relative petitions, but who nonetheless qualify for residence and who are eligible for waivers have to apply for waivers after being denied visas abroad. These waivers can take many months or even years to adjudicate. Fearful of not being granted waivers, many of these foreign nationals do not proceed abroad, even though many of these waivers would be favorably adjudicated.  

The administration can extend the practical training granted to foreign graduates of U.S. universities, allowing U.S. employers to benefit from their talents. The administration has already done this for graduates in science, technology, engineering and math (STEM) fields where their employers enroll in the e-verify program.

Why not offer this option to all U.S. foreign graduates? Doing so would free up the professional H-1B work visa, which Congress has capped so that the total number of visas available to foreign professionals is exhausted on the first day that the visa becomes available.

The administration can grant work permission to spouses of H-1B, TN, and H-1B1 professionals and O-1 extraordinary workers, further alleviating pressure on the H-1B quota. Executive authority has already been used to grant spouses of other nonimmigrant visa categories the right to work.

Certainly, many in Congress will criticize the President’s use of his executive powers in the immigration arena.  It is within Congress’ power to enact laws; it is within the executive’s power to interpret those laws.  The President has given Congress sufficient time to pass meaningful immigration reform and they have failed to do so.  Though the President has been a great advocate of bi-partisan immigration reform, the ball is now in his court. What will the President do? We certainly hope he takes the lead. 



14 Changes Obama Can Make to "Fix" The Broken Immigration System Now.

A group of immigration attorneys and others interested in immigration have been brainstorming about what President Obama could do to "fix" some of the problems in our broken immigration system. These are some of the smartest, most forward thinking individuals I know in the area of immigration law. Their ideas are specific, detailed, and easy to implement These ideas involve mostly policy change, not a lengthy regulatory fix.  

The nightmare scenario for many immigrants dealing with our current immigration system is not always caused by the laws enacted by Congress (some are),  Rather, these are problems either created by current administration policy, or by policies adopted by prior administrations. The President can change no laws. But, he can change regulations and policies.  And, while our laws are indeed "broken" in many ways, the regulations and policies themselves are the source of many of the issues current plaguing our legal immigration system, and straining our resources as we combat undocumented immigration and deal with a non-functioning legal immigration system.

President Obama can do a LOT to change, modify, and update these regulations and policies. My good friends Cyrus Mehta and Gary Endelman have published a blog talking about two of these fixes, Parole in Place and the counting of immigrant visa numbers. I commend you to read their brilliant narrative.  CNN even got in the act, publishing an article about five things Obama could do through policy and regulatory change.

But, let's not limit Obama to only two or five changes. There are at least 14 things Obama could do that would resolve a lot of immigration challenges, ranging from business immigration visas, deportation backlogs and family immigration, and priority for removal of undocumented immigrants.  The saying is "go big, or go home."  So, what will Obama do?  To day he has shown a proclivity for two dimensional thinking (shout out to you Wrath of Khan fans out there). 

Can he be convinced to be bold?  I am not holding out hope.  But, so that you know.  If there are things on this following list that he does not do, it is not because he does not have the authority. It is because he is not really sincere about fixing the broken immigration system.  

Fixes for those who are eligible for a visa, but for being subject to the bars upon departure
  • “Parole-in-Place” for immediate relatives of USC who are beneficiaries of approved visa petitions.  There is precedent for this remedy as the administration already uses parole-in-place for Cuban entrants and family members of former and current US military personnel.  Section 212(d)(5) of the INA provides the Attorney General (now DHS), the authority to parole into the U.S. temporarily under such conditions as he may prescribe on a case-by case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the U.S.  Section 235(a)(1) of the INA sets out that aliens present in the U.S. who have not been admitted are treated as applicants for admission to the U.S.  Thus, these aliens can lawfully be paroled.
  • The administration can deem extreme hardship as in special rule cancellation (there is historical precedent for this in special rule cancellation for NACARA). In order to be eligible for a waiver of the unlawful presence bars under § 212(a)(9) of the INA, a foreign national subject to those bars must demonstrate that a qualifying relative will suffer extreme hardship if he/she is not allowed to return to the U.S. This same requirement existed under the former § 244(a) of the INA (suspension of deportation).  In order to facilitate the adjudication of suspension applications in the past under NACARA, the administration, at the time, deemed the existence of extreme hardship for those with qualifying relatives. See Limited Presumption of Extreme Hardship under Section 203 of NACARA, HQCOU 90/16.11-C, Feb. 12, 1999, by Paul Virtue. There are times that the administration has elevated the hardship requirement for a waiver. For example, though the statute requires a foreign national to demonstrate extreme hardship when applying for a waiver under § 212(h) of the INA when convicted of certain criminal acts, the administration elevated the requirement to exceptional and extremely unusual hardship for those convicted of violent or dangerous crimes. Under 8 C.F.R. § 1212.7(d), the Attorney General will not favorably exercise discretion in cases involving violent or dangerous crimes, except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which the alien clearly demonstrates that a denial of the waiver would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the alien’s underlying criminal offense, a showing of extraordinary circumstances might still be insufficient to warrant a favorable exercise of discretion under INA § 212(h). 8 C.F.R. § 1212.7(d). Matter of Jean, 23 I&N Dec. 373, 383 (BIA 2002).
  •  The administration can enable those granted TPS to adjust status to lawful residence if otherwise qualified through an approved visa petition.  See Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013). Currently, but for those living within the jurisdiction of the U.S. Court of Appeals for the 6th Circuit, the administration will not allow a foreign national granted TPS to adjust status, finding that TPS is not a lawful status from which one can adjust status. The 6th Circuit, in sound reasoning, found that TPS is a lawful status from which foreign nationals can adjust status. This decision should be adopted nationally.
  • The administration can expand the 601A waiver process stateside to all foreign nationals who are the beneficiaries of approved visa petitions. This administration currently allows beneficiaries of approved immediate relative petitions, who require unlawful presence waivers, to apply for those waivers while physically present in the U.S.  Foreign nationals who are not the beneficiaries of immediate relative petitions, but who nonetheless qualify for residence and who are eligible for waivers have to apply for waivers after being denied visas abroad. These waivers take many months to adjudicate. Fearful of not being granted the waivers, these foreign nationals do not proceed abroad, even though many of these waivers would be favorably adjudicated. By moving the entire process stateside, many more foreign nationals would pursue the currently available immigrant visa process. 
  • The administration could also include the ability to process waivers of deportation (I-212), or other waivers, along with unlawful presence waivers while the applicants are in the US.  As many aliens subject the unlawful presence bar also require deportation waivers or other waivers, they are not eligible to take advantage of the I-601A waiver process, which has effectively rendered the existing policy useless for a large segment of the immigrant population.
  • The administration can relax interpretations of those deemed unlawfully present under § 212(a)(9) of the INA.  The administration has never enacted any regulations on unlawful presence. A foreign national who is in a period of stay authorized by the Attorney General is not unlawfully present. The administration has latitude in determining what foreign nationals are present in a period of stay authorized by the Attorney General.   Moreover, section 212(a)(9)(B)(iii) of the INA provides exceptions for period for unlawful presence, i.e., for minors, those that have filed for asylum etc.  Section 212(a)(9)(B)(iv) provides for tolling of unlawful presence. These exceptions and tolling have only been applied to the 10 year bar to admissibility. The administration can apply these to all periods of unlawful presence, including the permanent bar to admission under § 212(a)(9)(c).
  • Section 245(i) of the INA provides that certain foreign nationals and their spouses and children who commenced the residence process on or before April 30, 2001 and were physically present on December 20, 2000 can seek residence in the U.S. upon payment of a fine of $1000, if otherwise eligible for residence.  At one time, the administration interpreted the relatives covered by section 245(i) broadly (i.e. as covering after-acquired spouses). More recently, the Board of Immigration Appeals found that after -acquired spouses of beneficiaries covered by §245(i) would not benefit from this provisions. This is a reversal in policy.  National Cable & Telecommunications Association et al. v. Brand X Internet Services et al., 545 U.S. 967 (2005), allows the administration to rethink prior interpretations of law. The administration should use the Brand X decision to broaden its interpretation of 245(i).
  • The administration can use greater prosecutorial discretion (stop trying to deport immediate relatives). The administration should formalize a policy of not putting certain foreign nationals in removal proceedings and target border enforcement.
  • No child under 16 should be charged with entry without inspection (“EWI”) because EWI requires the actual evasion of inspection coupled with the intent to evade inspection (the intent to evade inspection requires a level of sophistication that most children do not have- this is clearly legally provided for) Matter of Pierre, I.D. 2238 (BIA 1973).

Lower the cost of detention without compromising security
  •      The administration spends tens of millions or more each year to detain foreign nationals. Foreign nationals convicted of certain criminal offenses, including lawful permanent residents convicted of possession with intent to distribute a small amount of marijuana, are subject to mandatory custody. See § 236(c) of the INA. This is true even though the foreign national may pose no security or flight risk and may not have served any time in criminal custody. The administration can save millions of dollars by finding that electronic surveillance satisfies the statutory requirement of mandatory custody. This will require no change in the law and assure that the foreign national will be present at future immigration hearings.
Administrative Fixes for lack of family and employment immigrant visas

  •        There is no legal support in the Immigration Act for charging worldwide visa quotas against all immigrating family members, as opposed to the legally support use of  one (1) visa as per family unit.  This would essentially solve most family and employment quota backlogs.
Allow U.S. companies to attract global talent and compete with E and L companies and deal with severe H-1B shortage

  •        The administration can grant employment authorization for spouses of foreign nationals allowed to work in the U.S. on H1B, TN, E3 and H1B1, O and P visas. This will lessen the demand on the H1B professional visa.  The demand is so great for the H-1B professional visa that the visas are exhausted the first day they are available. In fact, this year, a foreign national applicant for an H-1B visa, with a U.S. bachelor’s degree, had about a 43% chance of getting selected for the H-1B. The administration has already granted work permission to spouses of L and E visa holders. It is a logical extension for the administration to extend work permission to spouses of other visas.
  •        The administration can grant longer periods of optional practical training for students. The administration already extended the practical training granted to STEM majors in U.S. universities from 12 months to 29 months, as long as the STEM’s employer participates in E-verify. Why not extend this to all foreign graduates of U.S. universities? This would help alleviate the H-1B crisis and encourage more employers to use E-verify.
  •        The administration can go back to less restrictive interpretations on those not subject to H-1B quotas, i.e., those employed at institutions affiliated with qualified institutions of higher education or non-profit research institutions are exempt from the H-1B cap.  Prior administrations more liberally interpreted exemptions from the H-1B cap allowing institutions that had any type of affiliation with a qualifying organization to qualify for the exemption. This administration has interpreted the H-1B exemption more stringently; i.e., public schools that served as training grounds for student teachers having affiliation agreements with qualifying universities used to be able to claim H-1B cap exemption and now cannot. With the H-1B demand so high, and the cap so low, why not interpret these exemptions broadly?
Use the Brand X decision to overturn Judicial decisions that do not support the administration’s goals  National Cable & Telecommunications Association et al. v. Brand X Internet Services et al., 545 U.S. 967 (2005).  

  •  The Brand X decision allows the administration to rethink its interpretation of prior statutory provisions. In some recent cases, Courts actually encouraged the administration to re-think interpretations of the law. See recent Supreme Court decision in Scialabba v. Vuellar de Osario.


How To Apply For DACA Renewals

           On June 5, 2014 the U.S. Department of Homeland Security announced the process for individuals to renew enrollment in the Deferred Action for Childhood Arrivals (DACA) program. U.S. Citizenship and Immigration Services (USCIS) has submitted an updated form allowing individuals previously enrolled in DACA, to renew their deferred action for a period of two years. USCIS will also continue to accept initial applications for DACA from individuals who have not previously applied. 


            Individuals may request DACA renewal if they continue to meet the initial criteria and the additional guidelines below:


INITIAL CRITERIA


1.     Arrived in the United States prior to age 16 and before June 15, 2007;


2.     Remained in the United States since June 15, 2007 and were present on June 15, 2012 when the program was announced;


3.     Under 31 years of age on June 15, 2012;


4.     Must be enrolled in school, have graduated from high school, or have a GED; and


5.     Have not been convicted of a felony, a significant misdemeanor or three or more misdemeanors, and do not otherwise pose a threat to national security or public safety.


ADDITIONAL CRITERIA


1.      You did not depart the United States on or after Aug. 15, 2012, without advance parole;


2.      You  have continuously resided in the United States since they submitted their most recent DACA request that was approved; and


3.      You Have not been convicted of a felony, a significant misdemeanor or three or more misdemeanors, and do not otherwise pose a threat to national security or public safety.


            Those DACA beneficiaries who were approved based upon being  enrolled in GED programs when they initially applied will need to demonstrate continued enrollment if they have not yet been awarded a GED. Applicants for renewal who did not continue their GED programs after receiving employment authorization will be subject to additional scrutiny and may be unable to renew their deferred action.


            With the first DACA approvals expiring in September 2014, eligible individuals should apply immediately to avoid any lapse in their employment authorization. We  strongly encourage DACA beneficiaries to submit their renewal requests 120 days (four months) before their current period of deferred action expires. To avoid a lapse in employment eligibility and to continue their protection rom removal. 


            Individuals can renew their grant of deferred action by filing the new version of Form I-821D “Consideration of Deferred Action for Childhood Arrivals,” Form I-765 “Application for Employment Authorization,” and the I-765 Worksheet.  The old firm can no longer be used and will not be accepted by USCIS. The filing fee of $465.00 will be the same as for initial applications. As with the initial request, USCIS will conduct a background check when processing DACA renewals.


         Contact the attorneys at Kuck Immigration Partners today to being your timely renewal process.  You can reach is at 404-816-8611 or at ckuck@immigration.net. Much of the renewal process can be done without an in person visit by most people. We look forward to continuing to serve you.    

Why A Corporate Immigration Policy is Important for Every Employer

Corporate Immigration Policies: A Survey

Immigration is a key component of many companies forward-looking strategy for workplace competitiveness. American employers who currently hired foreign national workers, and those who plan to do so in the future, need to have a formal corporate immigration policy to ensure that they are competitive in the marketplace and can attract and hold top foreign talent.

A US employer can legally hire foreign nationals under a variety of visa categories, but each visa category has one commonality--many of these foreign national employees want to remain permanently in the United States.  Just as important, given training and lost opportunity costs associated with departing "star" employees, most companies want to keep the foreign talent they have already sponsored for a work visa. 

Give the lengthy waiting period for so many immigrant visa categories, many employees want to start as soon as possible on their "green card" process.  At the same time, before a company spends a considerable amount of money on that same process they want to be sure that the employee is one worth keeping!  These competing interests are the primary reason why having a corporate immigration policy is necessary.  This policy puts every potential employee (and their managers and recruiters) on notice of what it will take to be "sponsored" and how long an employee needs to be employed before that process starts.  

In order to be competitive in their industry, many companies want to know the immigration policies of their competitors and their industry.  The Alliance of Business Immigration Lawyers, of which Kuck Immigration Partners is a member, conducted a survey of our members' experience with corporate immigration policies to try to provide a better outlook of where corporate immigration policies lay in 2014.  

The survey requested information from ABIL member firms regarding their corporate clients’ policies on such topics as: (1) how long a foreign national employee would have to work for the company before sponsorship would be started; (2) whether that timing has changed since the height of the financial crisis; and (3) whether there are contingencies on initiating/continuing the green card sponsorship process.

Here is a summary of our Corporate Immigration Policy Survey:
  • The majority of ABIL members that responded to the survey (66%) reported that their client companies wait one year before starting the green card process.  The next highest percentage responded that their clients wait more than 1 year; the third highest reported a wait of six months.
  • When asked whether this time frame changed since the height of the financial crisis, an equal percentage of respondents reported that the wait time had shortened, as those responding that there was no change to the wait time.
  • When asked about contingencies on starting (or continuing) the process, over 80% of respondents stated that the employee’s manager must “sign off” to have the process initiated.  One-half of respondents stated that an employee on a performance plan or under some other “disciplinary action” would cause the process to be delayed of stopped.
  • One member reported that some client companies have “nomination periods” when managers can nominate certain employees deserving of green card sponsorship.
  • When asked about the payment of green card sponsorship, most members (over 80%) reported that the employer pays all fees and expenses in connection with sponsorship.  The next highest percentage reported that the employer pays all fees for the employee,  but requires the FN employee to pay costs related to family members.  The smallest percentage reported a policy whereby the employer would pay up to a certain amount towards the process and the employee would cover the balance. 
  • When asked about the source of immigration-related costs, the largest percentage (over 90%) reported that the business unit hiring the employee pays for the process.  A few respondents reported situations where the Legal or HR Department would pay.
  • Responses were varied when asked about reimbursement policy.  An equal number of ABIL members reported that their corporate clients had no reimbursement policy as those who reported that their clients had such a policy (where the employee agrees to repay a portion of the costs of sponsorship if the employee leaves the company within a certain time frame after receiving the green card).
A company must also need to take into account that federal regulations make the employer responsible for all fees and costs associated with the PERM labor certification process - the first step in the majority of employment-based green card cases – and such fees may not be reimbursed by the employee, ever.  

We strongly suggest that our employer clients create a corporate immigration policy to ensure consistency across the company in sponsoring employees, and, especially given the metrics captured by USCIS during the immigration process, to ensure that the company is providing consistent information to USCIS and the DOL as it sponsors employees.  An upfront corporate policy will also diminish the threat of key employees resigning to take up employment with more foreign national "friendly” employers.  

If you are considering creating and adopting a corporate immigration policy, call the experts at Kuck Immigration Partners for assistance, suggestions and review to ensure that the policy meets all legal standards, and more importantly, in good for business.  

New Rules for Spouses of H-1B Workers

This morning the U.S. Department of Homeland Security (“DHS”) announced newly proposed rules that will allow the spouses of highly skilled workers to work in the United States.  This came as welcome news to many eagerly awaiting Obama’s promise of comprehensive immigration reform, which seems to have stalled in Congress. Proposed changes in the regulations aim to attract and retain highly skilled immigrants to the United States, and, as Commerce Secretary Penny Pritzker stated, to “unleash more of the extraordinary contributions that immigrants have always made to America’s innovation economy.”  

Presently, spouses of these highly skilled workers are able to enter the U.S. to join their spouses but are not permitted to work.  DHS Secretary Alejandro Mayorkas stated that the proposed change will help keep America strong, enhancing our country’s competitiveness and supporting economic growth by attracting highly trained workers in science, technology and engineering from other countries but stressed that Congress needed to work on a broader immigration solution to address serious deficiencies in the system. 

Critics to the proposed rule change claim it will only harm the millions of jobless Americans. They claim the proposals are an overreach by President Obama, and some assess the proposal as a move taken just to appease the Tech industry.


The proposals will soon be subject to a 60-day period of public comment that could lead to modifications, but DHS officials hope to issue final regulations before the end of 2014.  Proposals such as the one announced today are too small a step for supporters of comprehensive immigration reform, and for those opposed, they are one small step in the wrong direction.

ICE ERO To No Longer Require Detainees’ Signatures on G-28s

The American Immigration Lawyers Association announced yesterday that ICE will no longer require a detained foreign national’s signature on Form G-28s, Notice of Entry of Appearance as Attorney or Accredited Representative. This is a welcome announcement as some local offices were refusing to speak to a detained individual’s attorney under the excuse that the detained individual had not signed a Form G-28. 

Detained foreign nationals are routinely moved during their first few days of detention with no notice to their families. For example, in Georgia, detained foreign nationals are commonly moved between two rural locations (Lumpkin, Georgia, and Irwin, Georgia). This constant movement, combined with the rural locations and lack of notice, made it effectively impossible to obtain a signed G-28 in the first few days of a foreign national’s detention. Thus, detained foreign nationals were denied the benefit of an attorney and their families were unable to obtain legal updates on the case for several days.