By Laura Jacobson

On November 15, 2013, USCIS issued a new policy memorandum clarifying a benefit available to undocumented immediate relatives of U.S. military personnel. The policy, which applies to undocumented spouses, children, and parents of both active military personnel and veterans, is intended to promote family unity and reduce military personnel’s anxiety regarding their loved ones’ immigration status.  

Background
Under the general rules of immigration law, immigrants currently in the United States who entered unlawfully must return to their home countries before they can get legal status through a U.S. citizen family member. Rather than qualifying to adjust status in the United States, they must instead consular process, completing an interview at the U.S. consulate in their home country to determine whether they will be allowed to return to the United States lawfully. Many of these individuals are then subject to a bar for unlawful presence, prohibiting re-entry to the U.S. for three to ten years unless they can show “extreme and unusual hardship” would be suffered by their U.S. citizen family member. Though a recent measure has been implemented to try to limit the period of family separation, it has limited application, the immigrant is still required to leave the country to consular process, and there is no guarantee of approval at the consulate.

In the past, a statutory tool known as humanitarian parole has been used to ease this process for undocumented family members of U.S. military personnel. Humanitarian parole exists for rare circumstances in which urgent humanitarian reasons or a significant public interest favor allowing an individual to enter the United States when no other lawful basis for admission exists. Granted on a case-by-case basis, it is typically used for individuals seeking admission from outside of the United States. However, in the context of military families, a procedure known as “parole in place” has developed to allow an undocumented person already in the United States to obtain parole by virtue of his or her relation to a member of the U.S. military. Once the immigrant is granted parole, he or she may be able to adjust status rather than having to consular process and request a waiver for unlawful presence.

New policy
The recently-released USCIS policy memorandum establishes firm guidelines for a practice that has been inconsistently exercised (or not exercised) in the past. It states that, absent a criminal conviction or other serious negative factors, parole in place should generally be granted to immediate relatives of active duty members of the U.S. Armed Forces, individuals in the Selected Reserve of the Ready Reserve, and veterans of the U.S. Armed Forces or Reserve. Clear documentary requirements are set out. The policy memo also clarifies the legal issue about whether parole in place cures certain inadmissibility grounds, paving the way for an individual granted parole in place to adjust status in the United States.

The new policy memorandum offers greater security to undocumented family members of U.S. military personnel. However, it is important to note that the practice only benefits immediate relatives of U.S. citizens – that is, a U.S. citizen’s spouse, child under the age of 21 (including step-child), or parent. Additionally, parole only cures the inadmissibility ground of having entered without inspection, and an applicant for adjustment of status will still have to meet all the other statutory requirements in order to obtain lawful permanent resident status.

by Lauren Vogt

President Obama held a press conference several minutes ago regarding his push for immigration reform before the end of 2013.  The President reiterated points he has been making for months: 

• Immigration reform will benefit our economy, our national security, and our people
• Foreign nationals who attend our universities should be given the chance to start businesses in the U.S. rather than taking their skills back to their home countries
• A pathway to earned citizenship should be available for undocumented individuals who pass a background check, pay a fine, pay back taxes, and learn English

The President urged the House of Representatives to take on immigration reform by the end of the year. The Senate passed a comprehensive bill in June, while House Democrats introduced their own bill earlier this month that includes an updated border control section that already passed the House Homeland Security Committee. The House has not yet taken up either of these bills.

President Obama encouraged immigration reform supporters to keep fighting, regardless of the obstacles they face. He thanked members of the audience for their persistence, activism, passion, and heart.  The President mentioned that leaders have worked for years to pass immigration reform, and that this is the moment that we should finally be able to get it done.

We will continue to monitor any updates in legislation.

by Lauren Vogt

Despite the U.S. government shutdown, we at L&L Immigration Law, PLLC are busy working to support our clients.  Though the U.S. Citizenship and Immigration Services (USCIS) and Department of State are still processing visas, clients are having immigration court dates postponed unless they are currently in detention.  The Department of Labor is not processing necessary applications for employment-based visas.  Our attorneys are committed to keeping up with the news and relaying important information back to our clients.

During this time of uncertainty, immigrants’ rights supporters are not slowing down their push for comprehensive immigration reform.  Last Tuesday, I attended the Camino Americano: Rally and March for Immigrant Dignity and Respect held on the National Mall.  Though the Mall is generally closed to the public during the shutdown, the event was allowed to proceed on first amendment grounds. 

Similar to the last rally we attended, this event included a star-studded list of immigration reform proponents.  Highlights included:

·         Civil rights leader and NAACP board member Julian Bond discussed how the Black and immigrant communities should come together to support each other in the fight for civil rights

·         President of the American Federation of Teachers Randi Weingarten stressed that America’s teachers are behind immigration reform, and that this isn’t a Democrat or Republican idea, but an American idea

·         Senator Robert Menendez, one of the “Gang of 8” who introduced the immigration bill that passed in the Senate earlier this year, declared that it is in both the national security interests and the economic interests of the U.S. to pass immigration reform

·         Congressman Mario Diaz-Balart noted that this wasn’t the first rally everyone had been to on the subject, but that “it’s about time we get it done this year”

·         Congresswoman Ileana Ros-Lehtinen, the first Hispanic woman elected to Congress, made an argument that is gaining traction in the movement – Americans who oppose “amnesty” should consider that by not passing immigration reform, our country is in effect providing amnesty to the 11 million undocumented immigrants because nothing is being done to fix the system

The rally continued with a concert by Los Tigres del Norte, a norteño band with Mexican roots and a flair for singing songs that hit home for many in the Latino immigrant community. With lyrics about having two home countries or the sacrifices parents make for their children who then forget their roots, many in the crowd nodded in agreement as they sang along to the myriad of songs.

After I left the rally an organized group of approximately 200, including 8 congressmen and several political activists, were intentionally arrested for blocking off a street near the Capitol building. 

Later that week, I attended a conference hosted by the University of Virginia Miller Center.  Prominent journalists from the New York Times, the New Yorker, PBS, the National Journal, and Fusion encompassed a panel discussing the impact of news media when covering immigration topics.  With some panelists being specifically assigned to the immigration beat, and others covering Washington as a whole, each talked about how important it was to disseminate facts about immigration to the general public.  An issue that once didn’t get much traction is now covered frequently by national media outlets.

Regardless of one’s views on the topic of comprehensive immigration reform, the takeaway is clear – passionate people exist on both sides of the debate, and immigration stories will continue to make the news until a solution is reached.

By Laura Jacobson

Marriage to a U.S. citizen is one of the most well-known ways of obtaining legal immigration status in the United States. U.S. citizens can petition for their immigrant spouses to come to the United States as Lawful Permanent Residents (LPRs), with what is commonly known as the green card. However, the situation gets a little more complicated when the U.S. citizen and his or her immigrant spouse have been married for less than two years. When this is the case, the immigrant spouse receives only Conditional Permanent Residence at first. The immigrant spouse’s green card is valid only for two years, at which point he or she must file the I-751 petition to have the conditions removed and receive complete Lawful Permanent Residence. As a general rule, the I-751 must be filed by both spouses jointly. At the interview, the USCIS officer will speak with both spouses to confirm again that the marriage is bona fide; that is, that it was not entered into solely for the purpose of gaining immigration status. The purpose of Conditional Permanent Residence is exactly that – to ensure that individuals cannot abuse the system by marrying and quickly obtaining their legal status. The Conditional Permanent Residence is a check on the process, where newlyweds are checked up on again two years later to make sure the marriage was in fact real.

But what happens when a marriage has deteriorated over the past two years, such that the spouses are now separated or divorced? Can the immigrant spouse still get the conditions removed from his or her green card and continue to live in the United States permanently? A few exceptions to the joint filing requirement exist for immigrants in this situation, who were legitimately married at the time of receiving Conditional Permanent Residence, but whose marriage has ended or broken down for some reason. 

If a marriage has been officially terminated, either with a final divorce decree or other document terminating or annulling the marriage, the immigrant spouse can file the I-751 alone. He or she will have to provide evidence that the marriage was terminated, as well as evidence of the relationship before it ended. However, if the couple is separated, but not yet divorced, the immigrant does not qualify to remove the conditions of the green card in this way. In this case, the immigration officer will give the immigrant 87 days to present to USCIS the final divorce decree. If the divorce is not finalized in time to meet this deadline, the immigrant will most likely be put into removal proceedings and will have to finish the process in Immigration Court when he or she receives the final decree or risk being deported.

Another exception to the joint filing requirement is for an immigrant spouse who suffered physical abuse or extreme cruelty from his or her U.S. citizen spouse. In this case, the immigrant spouse can file the petition alone even if he or she is not yet divorced from the U.S. citizen. A petition on this basis can be filed at any time within the two years of conditional residence – the spouse doesn’t have to wait until 90 days before the Conditional Permanent Residence expires, as is the case generally. He or she will have to show evidence of the abuse or cruelty, which may include police reports, court records, orders of protection, and medical records, among other things. This exception can also be used if the immigrant spouse was not abused by the U.S. citizen, but his or her Conditional Permanent Resident child was.

If the immigrant cannot file the I-751 jointly with his or her U.S. citizen spouse and does not meet any of the above exceptions, the only other way to get the conditions removed is if the loss of permanent resident status and deportation would result in extreme hardship. This is the only situation in which evidence of the relationship is not required. However, “extreme hardship” is a very high standard to meet, and the immigrant must show that his or her removal would create significantly more hardship than it would for other immigrants.

Filing an I-751 petition when the marriage has broken down can be a difficult and complicated process. Immigration officials take marriage fraud very seriously, and if a Conditional Permanent Resident is already legally separated or divorced from his or her U.S. citizen spouse, it may suggest to the officer that the immigrant spouse married the U.S. citizen for the sole reason of getting legal status. If the officer finds immigration fraud, the immigrant spouse may be deported and ineligible for an immigration visa in the future, even if it is based on a new relationship. It is best to talk with an immigration lawyer if you find yourself in this position, who can discuss with you the most appropriate process to take and help you document a strong case.

By Laura Jacobson

Last Friday, August 15, marked the one-year anniversary of implementation of the Deferred Action for Childhood Arrivals (DACA) program. For one year now, undocumented immigrants who came to the United States as children and meet other specific requirements have been able to obtain work permits and other related benefits for the first time. Though many have benefitted from the program, the last twelve months have also revealed obstacles to accessing the advantages DACA provides and the limitations of the program in general.

An estimated 900,000 individuals were immediately eligible for DACA when it was implemented last year. Since then, USCIS has approved 430,236 DACA requests, while over 60,000 remain pending as of July 31, according to the latest USCIS report.

These 400,000 plus DACA recipients have not only benefitted from the employment authorization and protection from deportation that DACA provides, but also from important related opportunities. In almost every state, DACA recipients are eligible to apply for driver’s licenses under state documentation requirements, with only Arizona and Nebraska explicitly prohibiting DACA recipients from obtaining driver’s licenses.

The work authorization and accompanying eligibility for a Social Security number have also paved the way for new economic opportunities for DACA grantees. A study released by the American Immigration Council reports that, because of DACA, many undocumented young adults have been able to get their first job, open their first bank account, and acquire their first credit card.

In some states, DACA has also made available new opportunities in higher education for undocumented immigrants. Though no federal law prohibits undocumented individuals from attending U.S. colleges and universities, undocumented students do not qualify for federal financial aid and in most states cannot access in-state tuition, despite meeting residence requirements. For this reason, higher education has long been an unattainable goal for these young people, particularly given the limited future career opportunities for someone without employment authorization. With the benefits provided by DACA, higher education is more accessible, as some states, including Ohio most recently, have started offering in-state tuition to DACA students.

DACA may also ease certain other immigration restrictions for those who qualify. Individuals with DACA are eligible to request “advance parole,” or permission to travel outside of the United States for limited purposes and re-enter, an option generally not available to undocumented immigrants. Additionally, though DACA is not considered a legal “status,” an individual with DACA is not considered to be accruing unlawful presence, which can avoid serious immigration consequences if eligible for other immigration relief in the future.

However, despite the advantages available through DACA, many undocumented immigrants eligible for the program have not applied and applications have tapered off significantly since the high point in October 2012. For many individuals, fear of exposing themselves or undocumented family members deters them from seeking DACA’s benefits. Contributing to this fear is the insecurity of this program: a policy adopted by the Obama administration, DACA is not a law and can be ended at any time.

The education requirement also creates a barrier for many would-be applicants. To qualify for DACA, an individual must have graduated from high school, obtained a GED, or be currently enrolled in high school, a GED course, or a similar educational program. The estimated 900,000 immediately eligible for DACA at its implementation last year does not include another estimated 400,000 who would be eligible if they met the education requirement. In the months since DACA was first announced, USCIS has provided an expanded list of ways to meet the education requirement, including enrollment in certain literacy and career training programs. For those who meet every other requirement, DACA is still available upon enrollment in a qualifying educational program, but for many the barrier to access is too great.

Still others who may be eligible for DACA have put off applying in hopes of a future immigration reform that would provide more benefits and more stability than that offered by DACA. However, there is no guarantee of comprehensive immigration reform in the near future, and even if passed, it may be a long time before undocumented immigrants are able to fully take advantage of any new law.

In the last year, DACA has provided many new opportunities for undocumented youth in employment and education. Many DACA recipients have been able to obtain a driver’s license for the first time. At the same time, DACA has acutely revealed the shortcomings of such a temporary fix. In many states, DACA recipients still face the educational barriers presented by ineligibility for in-state college tuition, and DACA recipients everywhere continue to be ineligible for federal financial aid. When these individuals’ DACA protections are up for renewal in two years, there is no guarantee the program will even still exist. The benefits provided by DACA have allowed for many “firsts” for its recipients and continue to benefit new grantees every month, but any solution short of comprehensive immigration reform will continue to leave undocumented youth in a precarious immigration limbo. 

By Lauren Vogt

This past Saturday, L&L Immigration Law, PLLC celebrated the opening of its second office in Williamsburg, Virginia with a "Gran Inauguración" (Grand Opening in English).  Approximately 50 members of the community attended to show their support and meet our attorneys.  Visitors were able to walk through our offices and enjoy light refreshments.  Many inquired about the artwork on our walls, much of which was obtained from several visits to Latin America.

Olga Torres, President of the Hampton Roads Hispanic Chamber of Commerce (HRHCC), officiated a ribbon cutting ceremony and presented us with a certificate from the Chamber.  Ms. Torres welcomed us to the community and expressed her desire to continue working with our law firm in the future.  The children in attendance got into the action as well, helping to hold the ribbon we cut to commemorate opening the doors of the new office.

During the grand opening, Laura and I explained the services we offer to the community.  Several people inquired about the status and contents of the proposed immigration reform bill.  We will be posting several blogs on this topic over the next few months to keep everyone abreast of the progress of the bill.

Visitors also questioned how often we planned to staff the office.  For the immediate future, either Laura or I will be in the Williamsburg office at least every other week.  A schedule is posted outside the door with days an attorney will be in Williamsburg.  We plan to start spending more time in Hampton Roads as demand for our services increases.

Laura and I are both excited to be back in the Williamsburg area.  Both graduates from the William & Mary Law school, it feels great to give back to the community we came to love in law school.  

We were happy to welcome several parishioners from the church where we gave presentations through De Vecino a Vecino, a student organization that Laura founded in 2009.  We were also thrilled that two current law students, Courtney Thomas and Gary Godman, volunteered their time during final exams to ensure our event was a success.  And of course, we couldn't have pulled this off without the help of our biggest cheerleader in Williamsburg, Linda Flores.  The effort each of these individuals put into the event was incredible.

We'd like to thank everyone who came to our grand opening, and we look forward to working with the Williamsburg community in the future.  To inquire about our schedule in Williamsburg, please send an email to info@llimmigrationlaw.com or call us at: 571.429.3439.

By Laura Jacobson

April has been an exciting time in our nation’s capital, with calls for immigration reform gaining steam and reports of proposed legislation coming out any day now. Last Wednesday and Thursday, Lauren and I were on Capitol Hill participating in two major events.

Wednesday was the A10 Rally for Citizenship on the West Lawn of the Capitol, with thousands of supporters from across the country in attendance. It was a hot day for a rally – the temperature rose to 90 degrees, though it felt even hotter in the crowd of sweaty, spirited supporters. Lauren and I arrived early and claimed a spot near the front, just behind the press. Looking behind us as the rally progressed, the crowd stretched back to cover the entire lawn, with more watching from the other side of First Street, crowded around the Capitol Reflecting Pool. American flags waved around us, some paired with the flags of Mexico, El Salvador, and other places from which people had come to this country.

Speakers took the stage, from faith leaders to elected officials, from union organizers to poets and musicians. Some called for reform in memory of the thousands who have died trying to cross our southern border. Others talked about families separated, children in foster care after their parents are deported. Rep. Luis Gutierrez of Illinois noted that when he leaves home on business, his wife and children don’t have to worry about whether he will come back, a fear that the families of the undocumented in our country face every day. Sen. Bob Menendez of New Jersey argued that national security is a reason to support immigration reform, not hinder it, saying, “We cannot protect America if we don’t know who is here to fulfill the American dream and who is here to do it harm.” Though they represented a diversity of backgrounds, the message of each was the same: the time is now for immigration reform.

The following day, Lauren and I were back on Capitol Hill for AILA’s National Day of Action. It’s an event AILA holds every year, in which immigration lawyers from around the country come to DC to engage with their elected representatives on immigration legislation. Meetings are held with members of Congress and their staff to discuss immigration solutions.

Lauren and I have each participated in National Day of Action in the past, and the atmosphere this year was unlike anything we’d experienced before. In other years, many on Capitol Hill told us frankly that immigration legislation was not something they were even considering, as other issues took precedent. This year, immigration reform seemed to be on everybody’s radar. Staff of the same offices that only recently told us they would not consider reform were now receptive to conversations about possible solutions, including a path to legalization for the undocumented. Virginia Rep. Bob Goodlatte, Chair of the House Judiciary Committee, even took the time to personally meet with a group of us in his office, explaining his vision for reform and what he is doing to educate fellow members of Congress about the complexities of our immigration laws. 

One highlight of National Day of Action was the opportunity to hear from several members of Congress whose personal experiences shape their understanding of the need for reform. Sen. Mazie Hirono of Hawaii told AILA members of her family’s immigration from Japan. Rep. Gutierrez recounted the economic conditions in Puerto Rico that motivated his parents to start a new life in the United States. Rep. Tammy Duckworth of Illinois, an Iraq War veteran and double amputee, shared her family’s story. Born in Thailand to a Thai mother and U.S. Marine father, Rep. Duckworth recounted the toll on her family when they moved to the U.S. and her mother’s arrival was delayed while her immigration visa processed.

The day concluded with the American Immigration Council’s Immigrant Achievement Awards. Winners of the Immigrant Achievement Awards shared their inspiring stories, and General Colin Powell, who received a Public Service Award, spoke about how his parents came to the United States from Jamaica and how that heritage has shaped him.

There is talk of the Senate releasing its proposed bill this week, as early as tomorrow. In the debates that will follow, Americans and their elected officials will do well to remember the human stories behind the conversation -- the stories of those who gather in the heat on the Capitol lawn to call for better immigration laws, the stories of our leaders, whose immigrant background has driven their accomplishments.