Musings on Immigration

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Obama Deferred Action ("ODA"): Trickling Information

An exceptional attorney friend of mine, Kimberley Best Robidoux of Larrabee | Mehlman | Albi | Coker LLP attended a question and answer session today at the USCIS San Diego District Office and has provided an outline of the discussion. District Director Paul Pierre spoke initially to provide information and then opened it up to Q&A from the stakeholders who had been invited to the forum. He stated that he was providing what "likely" will happen with regard to the process but that there are still 2 weeks before anything will likely be finalized. So, he said, take everything with a grain of salt. The following is a brief summary of the points that he hit upon:

- Anticipated 1.4 million applicants, but that estimate keeps growing (initially started at 800,000)

- Applications will likely be processed at the Service Centers and then forwarded to District Offices for interviews (if needed; e.g. criminal issues)

- Currently hiring about 400 people for the Service Centers in anticipation of the landslide of applications to be filed

- Service Centers nay be sending some work to the local offices for adjudication so that they can clean out their pipelines to be prepared for the DACA cases

- 100% of cases will be scheduled for biometrics which means that the ASCs will become backlogged. This will impact the cycle time for N-400s and I-485s adjudicated at the local offices. Will cycle times be more than 6 months? Yes, likely. ASCs will need more machines and more contractors to handle the workload

- Local offices are gearing up for training for what will be adjudicated at the local offices

- Form - likely will be an I-821D. Cannot use the I-821 because it has a fee ($50). The fee impact study had only been conducted in relation to TPS and not DACA and not enough time to do a fee impact study before August 15th. So, if they make a "D" form, no fee will be required and no fee impact study necessary. Likely that they will do a fee impact study and charge in the future.

- Biometrics fee will be charged ($85).

- I-765 will need to be filed for EAD card and fee will be imposed for the I-765 form ($340)

- Applications will likely be filed at lockbox (likely Chicago or Phoenix) and then an A file will be created

- Receipt Notices will likely not be generated for 60-90 days because of the initial onslaught of cases they are expecting to be filed as of August 15th

- Biometrics may likely not be scheduled for another 30 to 60 days following issuance of Receipt Notice

- Likely that RFEs may be issued in a majority of cases

- If I-821D is approved, the I-765 will then be adjudicated (likely to be adjudicated immediately after approval of I-821D so don't have to wait an additional 90 days). There is no 90 requirement to process the I-821D so the filing of an I-765 with the I-821D does not start the 90-day clock. EAD card will be granted for a period of 2 years from the date of approval of I-765.

- As of yesterday, there will not be any appeal rights

- Will ODA applicants be able to travel? Don’t know yet

- What happens at the end of the 2-year Deferred Action period? Don’t know yet.

- May be able to "waive" requirements for a government issued ID in some cases but as of now, the Mexican consulates are gearing up to aid people with obtaining birth certificates and issuing passports. Student IDs should list both last names for Mexicans so that it will be easier to assist with obtaining birth certificates and processing passport applications.

- Residence requirement - continuous physical presence (in the aggregate) for 5 years - temporary breaks are okay

- Apply for ODA concurrently with a VAWA or U or T case? Yes, but they will need to "marry" all cases together with the A file so the VAWA or U or whatever case may be delayed while adjudicating and/or inputting information for A file for ODA.

Update on the Obama Deferred Action Plan

It turns out that President Obama did NOT issue an Executive Order on Deferred Action for youth who entered the US before they turned 16 on June 15, 2012. Rather, DHS Secretary Napolitano issued a MEMO on a specific type of prosecutorial discretion to be exercised towards those youth. In her testimony before the House of Representatives on July 19, 2012, Secretary Napolitano stated that the "deferred action" status they are planning on giving applicants is not “amnesty,” and does not provide any legal status that would give them a pathway to permanent legal residence.

Secretary Napolitano defended her memo as Constitutional and in line with prior decisions on prosecutorial discretion. Clearly, she is on solid ground, but the question each applicant will have to ask is "Do I accept this offer?" Most eligible people will do so, and most will benefit tremendously.

Secretary Napolitano also mentioned that the guidelines and application process on the deferred action program would be available on August 1, 2012, and that applications would be available beginning on August 15. There will be an application fee, but the amount of the fee is yet unknown. We anticipate the fee to be between $750 and $1,000, given current filing fees in place for other immigration applications.

No lawyers or any other organization can be filling out application forms at this time, or accepting applications. Do not pay money to anyone at this time to complete applications for you. There will be time to do all this once the actual application process becomes known.

You should be beginning to accumulate documents to prove essential elements of the program. You can find more details on what you should be doing now at this link on our website: http://immigration.net/us_immigration/obama_dream_program/index.php

We will provide more details as soon as they become available. Expect our next update around August 1!

So it’s settled: Immigration is federal, not state issue

Here is a link to my op-ed, which was published in the Sunday, July 1, 2012 edition of The Salt Lake Tribune, regarding the United States Supreme Court's decision on Arizona's "attrition through enforcement," anti-immigration law known as S.B. 1070:

http://www.sltrib.com/sltrib/opinion/54395664-82/immigration-federal-states-utah.html.csp