Musings on Immigration

Our Globally Recognized Team of Immigration Lawyers Sharing Knowledge and Providing Counsel on Immigration Issues that Affect You, Your Business and Your Family

#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.