In my practice, I have a lot of gay clients. I also deal with a lot of spousal petitions. Today I want to discuss two developments, one potential and one definitely happening, that will affect US citizens and their same-sex spouses.
The first development will affect many undocumented individuals who are married to US citizens. Currently, an individual who entered illegally and then married a US citizen cannot apply for a green card inside of the United States. That person must leave the country and come back through the consulate. However, upon leaving, the person will become subject to the "10-year bar." He will have to stay out of the country for ten years before returning unless he can show that staying out of the country will cause extreme hardship to his American spouse. If he can show extreme hardship, he will be granted a waiver. This waiver can take many months to process.
Starting very soon (maybe in the next few days), the government will begin allowing these individuals to apply for the waiver inside the country. If the waiver is granted, the individual will still need to travel to the consulate. However, he will already have a waiver and will be out of the country for a much shorter time.
This is a great development and we're looking forward to helping our clients that have already put their names on our waiting list as well as the many that will come to us in the near future.
However, this benefit cannot help undocumented individuals who are marred to US citizen same-sex spouses. This leads to the second development. The U.S. Supreme Court has taken up the section of the Defense of Marriage Act (DOMA) that prohibits the federal government from recognizing same-sex marriages which are valid in the state where performed. This includes immigration benefits, which are federal.
Should the Supreme Court decide that the federal government must recognize same-sex marriages that are valid in the state where performed in connection with federal benefits, same-sex couples will also be eligible to take advantage of the new waiver process.
We are hopeful that this should be the case. It is unclear how helpful this change in the law will be to many Californians since same-sex marriage is currently not allowed. However, the government may choose to recognize same-sex domestic partnerships for immigration benefits if DOMA is struck down. Even better, the Supreme Court may uphold the lower courts and decide that Prop 8 is unconstitutional in some way which would allow many of our gay clients to get married in California.
As you can see, this coming year has the potential to be very good for bi-national same-sex couples!
Tuesday, December 18, 2012
Saturday, December 8, 2012
How I analyze an undocumented person's immigration situation
For someone in the country without papers, there are only so many possibilities. While I am always looking for ways to be creative and find new ways to help, in this post I will explain what types of things I look for in an initial consultation with an undocumented person. Hopefully, I'll have new things to look for if we get some immigration reform this year but, as of right now, this is what I've got.
1. What country are you from?
In this question, I'm looking to see if the person might be from a place that has a special immigration benefit or is a common source of asylum-seekers.
2. When and how have you entered the U.S including all entries and exit dates and all times caught by immigration?
This question is very important to determine to identify a potential removal order or the permanent bar which can cut off some immigration options.
3. Have you had any contact with immigration?
This question helps to know if the person is in proceedings or has ever been in proceedings and might have a removal order. Also, I check whether the person has ever filed any applications in the past or been on any applications. I'm especially looking for those that have 245(i) eligibility (meaning the person can obtain a green card without leaving the country due to a past immigration petition). I'm also looking for complications in the case because of past applications.
4. Have you ever been arrested?
Crimes can do a number on immigration options in some situations so I have to know everything.
5. List you spouse or partner and children. Do your siblings or parents have legal status in the U.S.?
Here I'm looking for family immigration options such as immigration through marriage or a parent. I also make sure the uncommon situation of deriving/acquiring citizenship from parents is not at issue. I always want to know about the siblings and parents having status to clue me off on any potential benefits the person I'm speaking with might qualify for. I will also inquire into the health of any US citizen or permanent resident children or spouses as there is a possible form of relief in Immigration Court for those with certain family members who have health problems.
6. Next I probe for asylum which will be different for each person. If I know a person is gay or transgender, I will go into the situation more. If the person is indigenous Guatemalan, I'll ask him or her about the past. I usually ask women about any problems with domestic violence. At the least, I will usually ask if someone is afraid to go back to their country and look for reasons other than general violence.
7. How old were you when you entered the U.S.?
Here I'm checking for deferred action eligibility, the newest benefit available.
8. Have you ever been a victim of a crime?
Here I'm looking for a U-visa eligibility which can be given to people who are victims of certain crimes and help the police.
While there may be some obscure situations not enumerated here, this is the general method for determining if anyone has possibilities, at least in my book. Cross you fingers for more options in the future!
Wednesday, May 23, 2012
We need stronger protections for biometric information
Biometrics are physical identifying characteristics of a person. The most common type is fingerprints. This also includes iris prints, voice prints, and DNA. Most of my clients need to get biometrics taken during their time with me. I send off fingerprints to the FBI regularly to check for criminal records. The Department of Homeland Security also requires most applicants to submit their biometrics for identification purposes.
While biometrics are very useful, I have serious concerns about privacy in the future. DHS and the FBI now share data. The FBI and DHS also have data sharing agreements with many countries. Information on millions of people is being put in the system. Without proper safeguards, this could lead to a loss of privacy and misuse of information. This will also increase the risk of errors. Interestingly, 3600 American citizens have been mistakenly caught up in the Secure Communities program (a program that requires local law enforcement agencies to share fingerprint information with DHS and used to identify immigrants that may be deportable).
The pasted report below has some interesting recommendations to protect biometrics and our privacy. I especially agree with the suggestion to segregate data whenever appropriate and delete data as soon as its use has been served.
The Immigration Policy Center’s Special Reports are our most in‐depth publication, providing detailed analyses of special topics in U.S. immigration policy.
Jennifer Lynch is a staff attorney with the Electronic Frontier Foundation and works on open government, transparency and privacy issues as part of EFF’s FOIA Litigation for Accountable Government (FLAG) Project. In addition to government transparency, Jennifer has written and spoken frequently on government surveillance programs, intelligence community misconduct, and biometrics collection. Prior to joining EFF, Jennifer was the Clinical Teaching Fellow with the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley School of Law. She has published academically on identity theft and phishing attacks (20 Berkeley Tech. L.J. 259) and sovereign immunity in civil rights cases (62 Fla. L. Rev. 203).
Blending the expertise of lawyers, policy analysts, activists, and technologists, the Electronic Frontier Foundation achieves significant victories on behalf of consumers and the general public. EFF fights for freedom primarily in the courts, bringing and defending lawsuits even when that means taking on the US government or large corporations. By mobilizing more than 140,000 concerned citizens through our Action Center, EFF beats back bad legislation. In addition to advising policymakers, EFF educates the press and public.
The Immigration Policy Center, established in 2003, is the policy arm of the American Immigration Council. IPC's mission is to shape a rational conversation on immigration and immigrant integration. Through its research and analysis, IPC provides policymakers, the media, and the general public with accurate information about the role of immigrants and immigration policy on U.S. society. IPC reports and materials are widely disseminated and relied upon by press and policymakers. IPC staff regularly serves as experts to leaders on Capitol Hill, opinion‐makers, and the media. IPC is a non‐partisan organization that neither supports nor opposes any political party or candidate for office. Visit our website at www.immigrationpolicy.org and our blog at www.immigrationimpact.com.
The collection of biometrics—such as fingerprints, DNA, and face recognition‐ready photographs—is becoming more and more a part of the society in which we live, especially for immigrants. As of January 2012, the Federal Bureau of Investigation (FBI) has been working with several states to collect face recognition‐ready photographs of all suspects arrested and booked. The Department of Homeland Security (DHS) collects approximately 300,000 fingerprints per day from non‐U.S. citizens crossing U.S. borders. State and local law‐enforcement agencies are quickly adopting and expanding several biometrics databases to collect much more information, including face prints, iris scans, and even DNA records. Undocumented people living within the United States, as well as immigrant communities more broadly, are more immediately and uniquely affected by the expansion of biometrics collection programs than the rest of society.
The rapid expansion of programs that collect, store, and share biometric data has raised important concerns over privacy and data accuracy for citizens and non‐citizens alike. This report summarizes these programs and their implications, and outlines best practices for developing effective and responsible biometrics programs in the future.
Biometrics are unique markers that identify or verify the identity of people using intrinsic physical or behavioral characteristics. Fingerprints are the most commonly known biometric, and they have been used regularly by criminal justice agencies to identify suspects for over a century. Other biometrics include face prints (facial recognition‐ready photographs), iris scans, palm prints, voice prints, wrist veins, hand geometry, a person’s gait, DNA, and others.
There are many ways to collect biometrics, though each falls into one of three general categories:
invasive biometrics, i.e. blood sample, taken to collect a person’s DNA.
minimally or non‐invasive biometrics, i.e. a fingerprint or iris scan.
biometrics collected without the subject’s knowledge, i.e. photographs taken from a distance or DNA collected from discarded biological material.
Once biometric information is collected, it can be used for one of two purposes—verification or identification:
1.
A verification system seeks to answer the question “Is this person who she says she is?” The system checks her biometric (such as an iris scan) against the biometric already in the database linked to that person’s file (her iris print) to try to find a match.
2.
An identification system seeks to identify an unknown person (or unknown biometric). The system tries to answer the questions “Who is this person?” or “Who generated this biometric?” and must check the biometric presented against all others already in the database.
Before September 11, 2001, the federal government had many policies and practices in place to silo data and information within each agency. Since that time the government has enacted several measures that allow—and in many cases require—information sharing within and among federal intelligence and federal, state, and local law‐enforcement agencies. For example, currently the FBI, DHS, and Department of Defense’s biometrics databases are interoperable, which means the systems can easily share and exchange data. This has allowed information sharing between FBI and DHS under Immigration and Customs Enforcement’s Secure Communities program.
Private companies and foreign governments also collect extensive amounts of biometric data. The FBI’s Criminal Justice Information Service (CJIS) division has information‐sharing relationships with 77 countries. One of the best‐known private biometrics databases is maintained by Facebook, whose face‐recognition service allows users to find and tag their friends. The government regularly mines this data to verify citizenship applications, for evidence in criminal cases, and to look for threats to U.S. safety and security.
As a result of data sharing between agencies, biometric data collected for non‐criminal purposes, such as immigration‐related records, are combined with and used for criminal or national‐security purposes with little to no standards, oversight, or transparency. When some of this data comes from sources such as local fusion centers and private security guards in the form of Suspicious Activity Reports (SARs), it can perpetuate racially motivated targeting of immigrant communities. The addition of crowd and security camera photographs means that anyone could end up in the database—even if they’re not involved in a crime—by just happening to be in the wrong place at the wrong time.
If biometrics become standardized, they could replace social security numbers as the primary form of identification. The next time someone applies for insurance, sees her doctor, or fills out an apartment rental application, she could be asked for her thumbprint or iris scan. Data standardization also increases the ability of government or private companies to locate and track a given person throughout their lives.
DNA presents privacy issues different from those involved in other biometrics collection. Depending on the quality of the sample collected, it can contain information about a person’s entire genetic make‐up, including gender, familial relationships and other hereditary information, race, health, disease history and predisposition to disease, and perhaps even sexual orientation. As one circuit court has recognized, “[t]he concerns about DNA samples being used beyond identification purposes are real and legitimate.”
Data fluidity within and among federal, state, and local agencies can increase the probability that data inaccuracies—such as notoriously inaccurate and out‐of‐date immigration records—will be perpetuated throughout all systems. This has happened with the Secure Communities program, where approximately 3,600 United States citizens have been caught up in the program due to incorrect immigration records.
Facial recognition technology can lead to a particularly high rate of false positives. In a 2009 New York University report on facial recognition, the researchers noted that facial recognition “performs rather poorly in more complex attempts to identify individuals who do not voluntarily self‐identify.” The researchers concluded that an accurate face recognition system will not be an “operational reality for the foreseeable future.”
Data‐sharing agreements with other countries mean that receiving governments will immediately know the identity of people deported from the U.S., possibly putting them at risk. Immigration and Customs Enforcement (ICE) and the FBI have a draft agreement allowing them to share information on deportees with the countries to which they are deported, and DHS has entered into agreements with foreign governments to provide such information on deportees upon repatriation. This kind of biometrics sharing could prove disastrous for repatriated refugees or immigrants from countries with a history of ethnic cleansing.
The Fourth Amendment’s protection against unreasonable searches and seizures presents the baseline protection for biometrics collection in the United States. Yet while the Fourth Amendment applies to everyone in the United States regardless of citizenship or immigration status, there are significant exceptions to its protections that are relevant, both for biometrics and for immigrants.
Courts have found that the government’s interest in protecting United States borders justifies a broad exception to the Fourth Amendment’s warrant requirement. According to case law, the government may stop and search individuals and their possessions at the borders without suspicion and may search a person’s body based only on reasonable suspicion (rather than probable cause). This exception to the Fourth Amendment’s warrant requirement has broad implications for immigrants in the United States because so much data on travelers is collected at the borders.
A case recently decided by the Supreme Court, United States v. Jones, could provide some insight into how courts might apply the Fourth Amendment to technologies such as biometrics that enable advanced surveillance and intrusive data collection, often in public without an initial detention or seizure. In Jones the Court addressed whether a GPS device planted on a car without a warrant and used to track a suspect’s movements constantly for 28 days violated the Fourth Amendment. Nine justices held that it did. For five of those justices, a person’s expectation of privacy in not having his movements tracked constantly—even in public—was an important factor in determining the outcome of the case. The fact that several members of the Court were willing to reexamine the reasonable expectation of privacy test in light of newly intrusive technology could prove important for future legal challenges to biometrics collection.
This report identifies several principles based in part on key provisions of the Wiretap Act and in part on the Fair Information Practice Principles (FIPPs), an internationally recognized set of privacy‐protection principles:
Limit the collection of biometrics to the minimum necessary to achieve the government’s stated purpose.
Define clear rules on the legal process required for collection, such as a court order or a warrant; collection and retention should be specifically disallowed without legal process.
Limit the amount and type of data stored to avoid the retention of data beyond identification and limit the collection of identifying information from people unrelated to the investigation.
Limit the combination of more than one biometric in a single database to keep different types of biometric data in separate databases and to keep biometric data separate from non‐biometric, contextual data.
Limit data retention times to a period no longer than necessary to achieve the goals of the program.
Define clear rules for use and sharing so that biometrics collected for one purpose are not used for another purpose.
Enact robust security procedures to avoid data compromise.
Mandate notice procedures to alert people to the fact that their biometrics have been collected.
Define and standardize audit trails and accountability throughout the system so that all database transactions, including biometric input, access to and searches of the system, data transmission, etc. are logged and recorded in a way that assures accountability.
Ensure independent oversight so that every entity that collects or uses biometrics is subject to meaningful oversight from an independent entity.
While biometrics are very useful, I have serious concerns about privacy in the future. DHS and the FBI now share data. The FBI and DHS also have data sharing agreements with many countries. Information on millions of people is being put in the system. Without proper safeguards, this could lead to a loss of privacy and misuse of information. This will also increase the risk of errors. Interestingly, 3600 American citizens have been mistakenly caught up in the Secure Communities program (a program that requires local law enforcement agencies to share fingerprint information with DHS and used to identify immigrants that may be deportable).
The pasted report below has some interesting recommendations to protect biometrics and our privacy. I especially agree with the suggestion to segregate data whenever appropriate and delete data as soon as its use has been served.
The Immigration Policy Center’s Special Reports are our most in‐depth publication, providing detailed analyses of special topics in U.S. immigration policy.
Jennifer Lynch is a staff attorney with the Electronic Frontier Foundation and works on open government, transparency and privacy issues as part of EFF’s FOIA Litigation for Accountable Government (FLAG) Project. In addition to government transparency, Jennifer has written and spoken frequently on government surveillance programs, intelligence community misconduct, and biometrics collection. Prior to joining EFF, Jennifer was the Clinical Teaching Fellow with the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley School of Law. She has published academically on identity theft and phishing attacks (20 Berkeley Tech. L.J. 259) and sovereign immunity in civil rights cases (62 Fla. L. Rev. 203).
Blending the expertise of lawyers, policy analysts, activists, and technologists, the Electronic Frontier Foundation achieves significant victories on behalf of consumers and the general public. EFF fights for freedom primarily in the courts, bringing and defending lawsuits even when that means taking on the US government or large corporations. By mobilizing more than 140,000 concerned citizens through our Action Center, EFF beats back bad legislation. In addition to advising policymakers, EFF educates the press and public.
The Immigration Policy Center, established in 2003, is the policy arm of the American Immigration Council. IPC's mission is to shape a rational conversation on immigration and immigrant integration. Through its research and analysis, IPC provides policymakers, the media, and the general public with accurate information about the role of immigrants and immigration policy on U.S. society. IPC reports and materials are widely disseminated and relied upon by press and policymakers. IPC staff regularly serves as experts to leaders on Capitol Hill, opinion‐makers, and the media. IPC is a non‐partisan organization that neither supports nor opposes any political party or candidate for office. Visit our website at www.immigrationpolicy.org and our blog at www.immigrationimpact.com.
The collection of biometrics—such as fingerprints, DNA, and face recognition‐ready photographs—is becoming more and more a part of the society in which we live, especially for immigrants. As of January 2012, the Federal Bureau of Investigation (FBI) has been working with several states to collect face recognition‐ready photographs of all suspects arrested and booked. The Department of Homeland Security (DHS) collects approximately 300,000 fingerprints per day from non‐U.S. citizens crossing U.S. borders. State and local law‐enforcement agencies are quickly adopting and expanding several biometrics databases to collect much more information, including face prints, iris scans, and even DNA records. Undocumented people living within the United States, as well as immigrant communities more broadly, are more immediately and uniquely affected by the expansion of biometrics collection programs than the rest of society.
The rapid expansion of programs that collect, store, and share biometric data has raised important concerns over privacy and data accuracy for citizens and non‐citizens alike. This report summarizes these programs and their implications, and outlines best practices for developing effective and responsible biometrics programs in the future.
Biometrics are unique markers that identify or verify the identity of people using intrinsic physical or behavioral characteristics. Fingerprints are the most commonly known biometric, and they have been used regularly by criminal justice agencies to identify suspects for over a century. Other biometrics include face prints (facial recognition‐ready photographs), iris scans, palm prints, voice prints, wrist veins, hand geometry, a person’s gait, DNA, and others.
There are many ways to collect biometrics, though each falls into one of three general categories:
invasive biometrics, i.e. blood sample, taken to collect a person’s DNA.
minimally or non‐invasive biometrics, i.e. a fingerprint or iris scan.
biometrics collected without the subject’s knowledge, i.e. photographs taken from a distance or DNA collected from discarded biological material.
Once biometric information is collected, it can be used for one of two purposes—verification or identification:
1.
A verification system seeks to answer the question “Is this person who she says she is?” The system checks her biometric (such as an iris scan) against the biometric already in the database linked to that person’s file (her iris print) to try to find a match.
2.
An identification system seeks to identify an unknown person (or unknown biometric). The system tries to answer the questions “Who is this person?” or “Who generated this biometric?” and must check the biometric presented against all others already in the database.
Before September 11, 2001, the federal government had many policies and practices in place to silo data and information within each agency. Since that time the government has enacted several measures that allow—and in many cases require—information sharing within and among federal intelligence and federal, state, and local law‐enforcement agencies. For example, currently the FBI, DHS, and Department of Defense’s biometrics databases are interoperable, which means the systems can easily share and exchange data. This has allowed information sharing between FBI and DHS under Immigration and Customs Enforcement’s Secure Communities program.
Private companies and foreign governments also collect extensive amounts of biometric data. The FBI’s Criminal Justice Information Service (CJIS) division has information‐sharing relationships with 77 countries. One of the best‐known private biometrics databases is maintained by Facebook, whose face‐recognition service allows users to find and tag their friends. The government regularly mines this data to verify citizenship applications, for evidence in criminal cases, and to look for threats to U.S. safety and security.
As a result of data sharing between agencies, biometric data collected for non‐criminal purposes, such as immigration‐related records, are combined with and used for criminal or national‐security purposes with little to no standards, oversight, or transparency. When some of this data comes from sources such as local fusion centers and private security guards in the form of Suspicious Activity Reports (SARs), it can perpetuate racially motivated targeting of immigrant communities. The addition of crowd and security camera photographs means that anyone could end up in the database—even if they’re not involved in a crime—by just happening to be in the wrong place at the wrong time.
If biometrics become standardized, they could replace social security numbers as the primary form of identification. The next time someone applies for insurance, sees her doctor, or fills out an apartment rental application, she could be asked for her thumbprint or iris scan. Data standardization also increases the ability of government or private companies to locate and track a given person throughout their lives.
DNA presents privacy issues different from those involved in other biometrics collection. Depending on the quality of the sample collected, it can contain information about a person’s entire genetic make‐up, including gender, familial relationships and other hereditary information, race, health, disease history and predisposition to disease, and perhaps even sexual orientation. As one circuit court has recognized, “[t]he concerns about DNA samples being used beyond identification purposes are real and legitimate.”
Data fluidity within and among federal, state, and local agencies can increase the probability that data inaccuracies—such as notoriously inaccurate and out‐of‐date immigration records—will be perpetuated throughout all systems. This has happened with the Secure Communities program, where approximately 3,600 United States citizens have been caught up in the program due to incorrect immigration records.
Facial recognition technology can lead to a particularly high rate of false positives. In a 2009 New York University report on facial recognition, the researchers noted that facial recognition “performs rather poorly in more complex attempts to identify individuals who do not voluntarily self‐identify.” The researchers concluded that an accurate face recognition system will not be an “operational reality for the foreseeable future.”
Data‐sharing agreements with other countries mean that receiving governments will immediately know the identity of people deported from the U.S., possibly putting them at risk. Immigration and Customs Enforcement (ICE) and the FBI have a draft agreement allowing them to share information on deportees with the countries to which they are deported, and DHS has entered into agreements with foreign governments to provide such information on deportees upon repatriation. This kind of biometrics sharing could prove disastrous for repatriated refugees or immigrants from countries with a history of ethnic cleansing.
The Fourth Amendment’s protection against unreasonable searches and seizures presents the baseline protection for biometrics collection in the United States. Yet while the Fourth Amendment applies to everyone in the United States regardless of citizenship or immigration status, there are significant exceptions to its protections that are relevant, both for biometrics and for immigrants.
Courts have found that the government’s interest in protecting United States borders justifies a broad exception to the Fourth Amendment’s warrant requirement. According to case law, the government may stop and search individuals and their possessions at the borders without suspicion and may search a person’s body based only on reasonable suspicion (rather than probable cause). This exception to the Fourth Amendment’s warrant requirement has broad implications for immigrants in the United States because so much data on travelers is collected at the borders.
A case recently decided by the Supreme Court, United States v. Jones, could provide some insight into how courts might apply the Fourth Amendment to technologies such as biometrics that enable advanced surveillance and intrusive data collection, often in public without an initial detention or seizure. In Jones the Court addressed whether a GPS device planted on a car without a warrant and used to track a suspect’s movements constantly for 28 days violated the Fourth Amendment. Nine justices held that it did. For five of those justices, a person’s expectation of privacy in not having his movements tracked constantly—even in public—was an important factor in determining the outcome of the case. The fact that several members of the Court were willing to reexamine the reasonable expectation of privacy test in light of newly intrusive technology could prove important for future legal challenges to biometrics collection.
This report identifies several principles based in part on key provisions of the Wiretap Act and in part on the Fair Information Practice Principles (FIPPs), an internationally recognized set of privacy‐protection principles:
Limit the collection of biometrics to the minimum necessary to achieve the government’s stated purpose.
Define clear rules on the legal process required for collection, such as a court order or a warrant; collection and retention should be specifically disallowed without legal process.
Limit the amount and type of data stored to avoid the retention of data beyond identification and limit the collection of identifying information from people unrelated to the investigation.
Limit the combination of more than one biometric in a single database to keep different types of biometric data in separate databases and to keep biometric data separate from non‐biometric, contextual data.
Limit data retention times to a period no longer than necessary to achieve the goals of the program.
Define clear rules for use and sharing so that biometrics collected for one purpose are not used for another purpose.
Enact robust security procedures to avoid data compromise.
Mandate notice procedures to alert people to the fact that their biometrics have been collected.
Define and standardize audit trails and accountability throughout the system so that all database transactions, including biometric input, access to and searches of the system, data transmission, etc. are logged and recorded in a way that assures accountability.
Ensure independent oversight so that every entity that collects or uses biometrics is subject to meaningful oversight from an independent entity.
Wednesday, May 16, 2012
Good news for TPS and adjustment of status
Here's the scenario:
A person has temporary protected status (TPS). However, before getting that status, he accrued more than one year of unlawful presence in the U.S. With TPS, he can travel internationally if he applies and received advance parole. However, if he leaves the country, he will trigger the 10-year-bar. This bar is triggered when someone accrues more than one year of unlawful presence and then leaves the country. He is allowed to return with the advance parole.
Let's say this person has an immediate relative. He is in the United States legally so he should be able to adjust. However, if he traveled, he now has a 10-year-bar. If he didn't travel, he still can't adjust because he's inadmissible for entering without inspection when he initially came to the U.S.
Generally, a person who had returned on advance parole could apply for adjust status as an immediate relative only if he received a waiver for the 10-year-bar. Is this still necessary?
Maybe not! The Board of Immigration Appeals recently released a case, Matter of Arrabally, which establishes that leaving the country on advance parole does not trigger the 10-year-bar. This could mean that a person can now adjust without needing a hardship waiver.
We'll have to see if this actually works.
A person has temporary protected status (TPS). However, before getting that status, he accrued more than one year of unlawful presence in the U.S. With TPS, he can travel internationally if he applies and received advance parole. However, if he leaves the country, he will trigger the 10-year-bar. This bar is triggered when someone accrues more than one year of unlawful presence and then leaves the country. He is allowed to return with the advance parole.
Let's say this person has an immediate relative. He is in the United States legally so he should be able to adjust. However, if he traveled, he now has a 10-year-bar. If he didn't travel, he still can't adjust because he's inadmissible for entering without inspection when he initially came to the U.S.
Generally, a person who had returned on advance parole could apply for adjust status as an immediate relative only if he received a waiver for the 10-year-bar. Is this still necessary?
Maybe not! The Board of Immigration Appeals recently released a case, Matter of Arrabally, which establishes that leaving the country on advance parole does not trigger the 10-year-bar. This could mean that a person can now adjust without needing a hardship waiver.
We'll have to see if this actually works.
Monday, April 16, 2012
My rant about the permanent bar
What is the permanent bar?
1. A person accrues at least one year of unlawful presence in the U.S.
2. That person leaves the U.S.
3. That person then reenters the U.S. illegally.
Such a person is permanently inadmissible to the U.S.
The point of the bar - to punish recidivist immigration violators.
I think this law was well-intentioned to discourage illegal immigrants from reentering the country. However, I have been observing terrible results since I started my practice. Really good people are suffering because of this bar, usually because they traveled home to visit a dying loved one or something to that effect. Families are being split up and immigration relief that would be otherwise available is not.
Currently a person has to wait 10 whole years before being allowed to ask for a waiver for the permanent bar. However, this is unacceptable to most families. I say we need a waiver to the permanent bar that is available sooner. End of rant.
Monday, March 26, 2012
I-601 Hardship Waivers: What's the Buzz All About?
Recently, U.S. Citizenship and Immigration Service (CIS) announced a new policy for I-601 hardship waivers. This has been getting a lot of buzz recently. I have gotten several calls to my law firm because of the announcement.
This topic usually comes up while answering one of the more common questions undocumented people might have. "I've married a US citizen. Do I have to leave the country to get a green card?" The answer is, most surely, yes. Undocumented people cannot adjust status in the country just by marrying a US citizen (with a very few limited exceptions). The undocumented spouse will need to leave the country and apply for a visa at the consulate in his or her country of origin.
So what's the problem with that? Most undocumented people have lived in the U.S illegally for a period of more than one year. If a person lives here for more than one year illegally and then leaves, he or she will not be able to apply for immigration benefits until 10 years have passed - this is known as the 10-year bar.
Most married couples are not willing to be separated for 10 years just to get status so undocumented spouses usually just choose to stay in the country.
However, there's a waiver - the I-601 hardship waiver. If the waiver is granted, the undocumented spouse may return the U.S. without waiting 10 years. If the undocumented spouse can show extreme hardship to the US citizen spouse without the grant of the visa, he or she gets back in. Showing extreme hardship is not easy, though.
So why don't more people apply for the waiver? The waiver must be applied for only after leaving the country. Technically, this is because the 10-year bar does not even apply until the undocumented spouse leaves. This waiver can take many months to receive, and sometimes more than a year. Also, there's no guarantee it will be granted. For most couples, it's not worth the time out of the country and the risk.
So what's changed? CIS will begin accepting waiver applications while the undocumented spouse is still in the country. This means that he or she will not leave the country until the waiver is granted. Then the time outside of the country will be much shorter, maybe only a couple of months.
This is great, right?! It seems like it is. However, there's a really big question that hasn't been answered. What will CIS do with denied waiver applications? It can do two things: 1. deny the application and leave it at that, or 2. refer the denied spouse to ICE for removal proceedings.
What CIS decides to do is very important. If it will not refer to ICE denied cases, many people will try to take advantage of this waiver. What's the harm in trying? However, if CIS refers to ICE, many people will still decide to forego this possibility. The risk of deportation is not for the light-hearted.
Stay tuned for further developments!
This topic usually comes up while answering one of the more common questions undocumented people might have. "I've married a US citizen. Do I have to leave the country to get a green card?" The answer is, most surely, yes. Undocumented people cannot adjust status in the country just by marrying a US citizen (with a very few limited exceptions). The undocumented spouse will need to leave the country and apply for a visa at the consulate in his or her country of origin.
So what's the problem with that? Most undocumented people have lived in the U.S illegally for a period of more than one year. If a person lives here for more than one year illegally and then leaves, he or she will not be able to apply for immigration benefits until 10 years have passed - this is known as the 10-year bar.
Most married couples are not willing to be separated for 10 years just to get status so undocumented spouses usually just choose to stay in the country.
However, there's a waiver - the I-601 hardship waiver. If the waiver is granted, the undocumented spouse may return the U.S. without waiting 10 years. If the undocumented spouse can show extreme hardship to the US citizen spouse without the grant of the visa, he or she gets back in. Showing extreme hardship is not easy, though.
So why don't more people apply for the waiver? The waiver must be applied for only after leaving the country. Technically, this is because the 10-year bar does not even apply until the undocumented spouse leaves. This waiver can take many months to receive, and sometimes more than a year. Also, there's no guarantee it will be granted. For most couples, it's not worth the time out of the country and the risk.
So what's changed? CIS will begin accepting waiver applications while the undocumented spouse is still in the country. This means that he or she will not leave the country until the waiver is granted. Then the time outside of the country will be much shorter, maybe only a couple of months.
This is great, right?! It seems like it is. However, there's a really big question that hasn't been answered. What will CIS do with denied waiver applications? It can do two things: 1. deny the application and leave it at that, or 2. refer the denied spouse to ICE for removal proceedings.
What CIS decides to do is very important. If it will not refer to ICE denied cases, many people will try to take advantage of this waiver. What's the harm in trying? However, if CIS refers to ICE, many people will still decide to forego this possibility. The risk of deportation is not for the light-hearted.
Stay tuned for further developments!
Friday, January 20, 2012
Interesting issues with Temporary Protected Status
Recently, I encountered two issues with an area of law that I was formerly rather unfamiliar with - Temporary Protected Status. For the uninitiated, TPS is a form of status for individuals from certain countries that are suffering from natural disasters, civil wars, and other extraordinary circumstances.
Because TPS is only intended for temporary relief, it is a rather flimsy status. However, for many undocumented people, it is the only hope of living in the U.S. legally. Thus these individuals want to get as much out of their status as possible.
Issue #1 The TPS Trick
Can someone eligible to adjust status to permanent resident do so from TPS status? Yes. A person with TPS is considered "in status." Here's the catch: many people entered the U.S. illegally before getting TPS status. These people can't adjust because of their unlawful entry. But there's currently a neat little trick you can do to get around this. This only works for immediate relatives, i.e. children, parents, and spouses of U.S. citizens.
Here's what you do. You apply for "advance parole." This is a travel document for, among other things, people with TPS. With the advance parole the person leaves the country and then comes back in. If that person is an immediate relative, he has cured his illegal entry. Sounds simple, right? Not so fast.
If the person was here unlawfully before getting TPS status from 6 months to 1 year, he has a three-year bar before he can adjust status. If he was here for more than one year, he has a ten-year bar before he can adjust status. Where did the bar come from? If you leave the country after being here between 6 months and a year unlawfully, you have a three-year bar to admission. If you leave and have been here more than one year, you have a ten-year bar.
So why can the person get back in with advance parole? It's for humanitarian purposes and advance parole is not really considered an admission according to immigration law. So what to do about the bar? If you're the child or spouse of a US citizen, you apply for a hardship waiver. If you can prove hardship, you get to adjust without waiting for the bar. But what if you're a parent of US citizen? Too bad - the waiver doesn't apply to you. Currently, the law allows for the person to wait for the bar to pass inside the U.S. A parent of a U.S. citizen that triggered the 10-year bar by using advance parole could potentially adjust status in 10 years.
But this is dangerous! What if TPS ends? What if the current interpretation changes? It's a scary choice but the only current way for someone in this situation to adjust and possibly stay in the U.S at the same time.
Issue #2 After-arriving Children
Everyone with TPS has to have been present at the time of initial registration for the country the person is from. So what if you have a child that arrives after that date. Can they get TPS as a derivative? According to the 3rd and 4th Circuits - NO! The child would have to have been present on the date required for those with TPS status. Is this the end of the story? Possibly, no.
Each circuit can decide differently. If this situation came up for litigation, our 9th Circuit could go the other way and say the after-arrived child could register as a derivative. So what should after-arrived children do in the 9th Circuit? Don't apply for TPS unless you want to get placed in deportation proceedings and serve as the test case! Sure you might get to stay and be an immigration precedent-setting hero. But you could get deported.
I'm keeping an eye on this issue to see what happens. Maybe we'll get some good news on it one of these days.
Issue #1 The TPS Trick
Can someone eligible to adjust status to permanent resident do so from TPS status? Yes. A person with TPS is considered "in status." Here's the catch: many people entered the U.S. illegally before getting TPS status. These people can't adjust because of their unlawful entry. But there's currently a neat little trick you can do to get around this. This only works for immediate relatives, i.e. children, parents, and spouses of U.S. citizens.
Here's what you do. You apply for "advance parole." This is a travel document for, among other things, people with TPS. With the advance parole the person leaves the country and then comes back in. If that person is an immediate relative, he has cured his illegal entry. Sounds simple, right? Not so fast.
If the person was here unlawfully before getting TPS status from 6 months to 1 year, he has a three-year bar before he can adjust status. If he was here for more than one year, he has a ten-year bar before he can adjust status. Where did the bar come from? If you leave the country after being here between 6 months and a year unlawfully, you have a three-year bar to admission. If you leave and have been here more than one year, you have a ten-year bar.
So why can the person get back in with advance parole? It's for humanitarian purposes and advance parole is not really considered an admission according to immigration law. So what to do about the bar? If you're the child or spouse of a US citizen, you apply for a hardship waiver. If you can prove hardship, you get to adjust without waiting for the bar. But what if you're a parent of US citizen? Too bad - the waiver doesn't apply to you. Currently, the law allows for the person to wait for the bar to pass inside the U.S. A parent of a U.S. citizen that triggered the 10-year bar by using advance parole could potentially adjust status in 10 years.
But this is dangerous! What if TPS ends? What if the current interpretation changes? It's a scary choice but the only current way for someone in this situation to adjust and possibly stay in the U.S at the same time.
Issue #2 After-arriving Children
Everyone with TPS has to have been present at the time of initial registration for the country the person is from. So what if you have a child that arrives after that date. Can they get TPS as a derivative? According to the 3rd and 4th Circuits - NO! The child would have to have been present on the date required for those with TPS status. Is this the end of the story? Possibly, no.
Each circuit can decide differently. If this situation came up for litigation, our 9th Circuit could go the other way and say the after-arrived child could register as a derivative. So what should after-arrived children do in the 9th Circuit? Don't apply for TPS unless you want to get placed in deportation proceedings and serve as the test case! Sure you might get to stay and be an immigration precedent-setting hero. But you could get deported.
I'm keeping an eye on this issue to see what happens. Maybe we'll get some good news on it one of these days.
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