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Immigration News Articles

Supreme Court Strikes Down DOMA, Affirms Immigration Rights of Gay and Lesbian Couples

 

On June 27, 2013, the Supreme Court issued its decision in the case, United States v. Windsor, striking down section 3 of the Defense of Marriage Act, or DOMA, on the basis that it violated equal protection under the due process clause of the 5th Amendment. DOMA established an exclusively heterosexual definition of “marriage,” and denied same-sex couples any federal benefits, including immigration benefits. This is a historic day for gay and lesbian marriage rights, as DOMA disqualified same-sex couples from over a thousand federal benefits, and made same-sex couples in committed relationships second-class citizens in the eyes of the federal government.

In particular, the case involved whether Edith Windsor should have been forced to pay hundreds of thousands of dollars in federal estate taxes, taxes that married persons do not have to pay, upon the death of her spouse that she had lawfully married in 2007. Because of DOMA, the Internal Revenue Service did not recognize their marriage and refused to refund the estate tax.

Although the case does not directly involve immigration law, the Supreme Court’s decision will profoundly affect the lives and rights of gay and lesbian bi-national couples. Under DOMA, lesbian and gay U.S. citizens and lawful permanent residents were barred from obtaining permanent residency and any other immigration protections for their same-sex spouses.  As a result, gay and lesbian families have been torn apart, same-sex spouses of citizens have been deported and thousands of U.S. citizens have been forced to choose between their life-partners and exile from the United States.

In the 5-4 ruling, Justice Kennedy stated that “DOMA…violates basic due process and equal protection principles…the avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages…[DOMA] is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in person hood and dignity.”

Secretary of Homeland Security Janet Napolitano has issued a statement applauding the decision striking down the discriminatory law. She vows to immediately begin implementing the decision to allow same sex spouses to obtain immigration benefits: “This discriminatory law denied thousands of legally married same-sex couples many important federal benefits, including immigration benefits. I am pleased the Court agreed with the Administration’s position that DOMA’s restrictions violate the Constitution. Working with our federal partners, including the Department of Justice, we will implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.”

The importance of this decision for the immigration rights of gay and lesbian couples cannot be understated. There are an estimated 28,500 bi-national same-sex couples in the United States. These couples will now be afforded many of the same immigration benefits and protections as all other couples under the U.S. immigration laws.

Same-sex couple can enjoy the federal immigration benefits as any other heterosexual couple ranging from simple alien relative petition (I-130) to waiver, cancellation of removal and more.

 

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Provisional Unlawful Presence Waivers (Form I-601A) (2013)

(Readers are advised to read the 2016 changes to the rules of 2013 Provisional Unlawful Presence Waivers mentioned below)

Beginning March 4, 2013, certain immigrant visa applicants who are spouses, children and parents of U.S. citizens (immediate relatives) can apply for provisional unlawful presence waivers before they leave the United States. The provisional unlawful presence waiver process allows individuals, who only need a waiver of inadmissibility for unlawful presence, to apply for a waiver in the United States and before they depart for their immigrant visa interviews at a U.S. embassy or consulate abroad.


The new process is expected to shorten the time U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas to become lawful permanent residents of the United States. Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States must travel abroad and obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return to the United States. Under the existing waiver process, which remains in effect, immediate relatives cannot apply for a waiver until after they have appeared for an immigrant visa interview abroad, and a Department of State (DOS) consular officer has determined that they are inadmissible to the United States. Immediate relatives of U.S. citizens who are eligible for the new provisional unlawful presence waiver can still choose to apply for a waiver using the existing process by filing a Form I-601, Application for Waiver of Grounds of Inadmissibility, after a DOS consular officer has determined that he or she is inadmissible to the United States.

 What You Need to Know:

The new provisional unlawful presence waiver process does not change the immigrant visa process. Even if your provisional unlawful presence waiver is approved, you are still required to depart the United States for your immigrant visa interview with a U.S. consular officer abroad.

If a provisional unlawful presence waiver is approved, it will only take effect after:

1.You depart the United States and appear for your immigrant visa interview, and
2. A DOS consular officer determines that you are otherwise admissible to the United States and eligible to receive an immigrant visa.
NOTE:  Do not depart until the National Visa Center (NVC) notifies you of your scheduled immigrant visa interview date and time at the designated U.S. Embassy or Consulate. DOS may cancel your immigrant visa application process if you fail to appear at your interview.

If you are in removal proceedings, you are ineligible for a provisional unlawful presence waiver unless, at the time you file your Form I-601A, your proceedings are administratively closed and have not been put back on the Department of Justice, Executive Office for Immigration Review (EOIR) calendar to continue your removal proceedings.
While USCIS does not envision placing I-601A applicants in removal proceedings, USCIS will follow current Department of Homeland Security (DHS) and USCIS Notice to Appear (NTA) guidance governing initiation of removal proceedings. For more information on USCIS NTA priorities, see USCIS Policy Memorandum, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens (Nov. 7, 2011).

 Eligibility Requirements:

 To be eligible for a provisional unlawful presence waiver you must fulfill ALL of the following conditions:

1. Be 17 years of age or older.
2. Be an immediate relative of a U.S. citizen (not a preference category immigrant who has a visa available). An immediate relative is an individual who is the spouse, child or parent of a U.S. citizen.
3. Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
4. Have a pending immigrant visa case with DOS for the approved immediate relative petition and have paid the DOS immigrant visa processing fee.
5. Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent.
6. Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.
7. Not have been scheduled for an immigrant visa interview by DOS before January 3, 2013.
8. Meet all other requirements for the provisional unlawful presence waiver, as detailed in 8 CFR 212.7(e) and the Form I-601A and its instructions. 

You are not eligible for a provisional unlawful presence waiver if any of the following conditions apply to you:

1. You are subject to one or more grounds of inadmissibility other than unlawful presence.
2. DOS initially acted before January 3, 2013, to schedule your Immigrant Visa (IV) interview for the approved immediate relative petition upon which your provisional unlawful presence waiver application is based, even if your immigrant visa interview has been canceled, you failed to appear for the interview, or your interview was rescheduled on or after Jan. 3, 2013.
Note: The date and time that you are scheduled to appear for your immigrant visa interview at the designated U.S. Embassy or Consulate is not the date USCIS will use to determine if you are eligible to file a Form I-601A. If DOS initially acted before January 3, 2013, to schedule your immigrant visa interview, you are not eligible to file a Form I-601A, even if you failed to appear for your interview or if you or DOS cancelled or rescheduled your interview for a date on or after January 3, 2013.
Instead, you may file a Form I-601, Application for Waiver of Grounds of Inadmissibility, from outside the United States after you have been interviewed for your immigrant visa, and the consular officer has found that you are inadmissible for a ground that may be waived.
3. You are in removal proceedings that have not been administratively closed.
4. At the time of filing, you are in removal proceedings that have been administratively closed but have been placed back on the EOIR calendar to continue your removal proceedings.
5. You do not meet one or more of the requirements, as outlined in the Form I-601A and its instructions.

How to Apply:

Carefully follow the Form I-601A instructions and fully complete the application. USCIS will reject any application that is not accompanied by the proper filing and biometric fees OR that does not meet the filing criteria specified in 8 CFR 212.7(e)(5). Use the checklist available on the last page of the form instructions to make sure your application is complete before filing.
Do not concurrently file Form I-601A with any other application or petition.


Please make sure that you follow these steps to prevent your application from being rejected and returned to you:

1. Complete Form I-601A.
2. Enclosed a check for the USCIS fee. The fee is $585. If you are under 79 years of age, you must also pay the $85 biometric services fee. If you are 79 years of age or older, you do not have to pay the $85 biometrics fee.The Form I-601A fees cannot be waived.

Having a pending application for a provisional unlawful presence waiver or an approval of such a waiver will NOT: 

1. Grant you any benefit or protect you from being removed from the United States.
2. Allow you to apply for interim immigration benefits such as work authorization or advance parole.
3. Guarantee you will be issued an immigrant visa.
4. Guarantee your admission into the United States by U.S. Customs and Border Protection.
5. Give you a legal immigration status.
6.  Change the requirement that you must depart the United States in order to obtain an immigrant visa.   

Until your approved unlawful presence waiver takes full effect, USCIS may reopen or reconsider its decision on the Form I-601A at any time.

 Reasons Your Provisional Waiver May Be Revoked:

 Your approved provisional unlawful presence waiver is automatically revoked if:

1. DOS ends the immigrant visa application process.
2. USCIS revokes the underlying approved immigrant visa petition (Form I-130 or Form I-360).
3. The consular officer at the U.S. embassy or consulate determines that you are inadmissible on grounds of inadmissibility other than unlawful presence.
4. You reenter or attempt to reenter the United States without being inspected and admitted or paroled, before or after your provisional unlawful presence waiver is approved or before your immigrant visa is issued.

 If You Are in Removal Proceedings:

 If USCIS approves your Form I-601A, you and/or your legal representative should take steps immediately to have your removal proceedings formally terminated or dismissed by EOIR before you depart the United States to attend your immigrant visa interview. If you leave the United States before your removal proceeding is terminated or dismissed, you may experience delays in the processing of your immigrant visa or risk becoming ineligible for an immigrant visa based on another ground of inadmissibility.
After you receive the approval notice for your Form I-601A, you and/or your legal representative should contact the Office of the Principal Legal Advisor at U.S. Immigration and Customs Enforcement (ICE) to make arrangements to have those proceedings dismissed.  

Denial of Form I-601A or Withdrawal of Form I-601A:
No Appeal or Motion to Reopen from the Denial:
If USCIS denies your provisional unlawful presence waiver, you cannot file an administrative appeal or a motion to reopen or reconsider. 

However, if your provisional unlawful presence waiver request is denied or if you withdraw your provisional unlawful presence waiver application before USCIS makes a final decision, you may file a new Form I-601A, in accordance with the form instructions and with the required fees. Your immigrant visa case must also be pending with DOS. In the case of a withdrawn Form I-601A, USCIS will not refund the filing fees because USCIS has already taken steps to adjudicate the case. 

Alternatively, if USCIS denies your Form I-601A or you withdraw your Form I-601A before USCIS makes a final decision, you can apply for a traditional waiver using the existing process and Form I-601, Application for Waiver of Grounds of Inadmissibility.  You cannot apply for a Form I-601 until after you attend your immigrant visa interview and after DOS determines that you are subject to other grounds of inadmissibility.  If you decide to file Form I-601 after the interview abroad, you must file the Form I-601 in accordance with its instructions and with the required fees.


AMENDMENTS TO RULES OF PROVISIONAL WAIVER OF 2013 ALLOWING ADDITIONAL APPLICANTS TO BECOME ELIGIBLE FOR PROVISIONAL WAIVER

This article will provide the difference between the current rules of 2013 and the new rules of 2016 that will be effective on August 29, 2016.

On July 29, 2016, DHS published a final rule expanding the availability of the provisional unlawful presence waiver to individuals who would be statutorily eligible for an unlawful presence waiver under INA §212(a)(9)(B)(v). The rule also makes additional changes to the current provisional waiver process. The following FAQs provide background information on the unlawful presence bars, the provisional waiver process and an overview of the changes that will be implemented as of the effective date of the rule, August 29, 2016. 

BACKGROUND 

Q: What Are the “Unlawful Presence” Bars to Admissibility?  

A: Under INA §212(a)(9)(B), a person who has accrued more than 180 days of “unlawful presence” in the United States is subject to a 3-year bar to readmission that is triggered upon departure from the United States. A person who has accrued one year or more of unlawful presence will trigger a 10-year bar to readmission. “Unlawful presence” is a term of art that is not defined in the regulations. On May 6, 2009, USCIS rescinded its prior unlawful presence guidance and issued a 51-page consolidated unlawful presence memorandum with corresponding updates to the USCIS Adjudicator’s Field Manual.  

 In general, individuals who have an approved immigrant visa petition, but who are present in the United States without having been inspected and admitted or paroled, are ineligible to adjust their status to lawful permanent resident (LPR) while remaining in the United States. Instead, such individuals must leave the United States and apply for an immigrant visa at a U.S. embassy or consulate abroad. However, as described above, departure may trigger a 3- or 10-year bar to readmission. As a general matter, the 3- or 10-year bar to readmission may be waived, under INA §212(a)(9)(B)(v), if the applicant can demonstrate that the refusal of his or her admission would cause “extreme hardship” to a U.S. citizen or LPR spouse or parent.  

Q: What Is a Provisional Waiver and How Is it Different from a Regular Waiver? 

A: Prior to 2013, when the provisional waiver process was rolled out, an individual who departed the United States to apply for an immigrant visa at a U.S. embassy or consulate, and who was found inadmissible based on prior unlawful presence, could only apply for a waiver of inadmissibility by filing Form I-601, Application for Waiver of Grounds of Inadmissibility, with USCIS, and only after a consular officer made a finding of inadmissibility at the visa interview. In 2013, in recognition of the hardships that are imposed upon American families during the lengthy separation that often accompanies the “regular” waiver process, USCIS published a final rule implementing a new “provisional” unlawful presence waiver.

The provisional waiver process allows an applicant who knows he or she will be subject to the 3- or 10-year bar upon departure to apply for “provisional” approval of an unlawful presence waiver prior to departing the United States for the immigrant visa interview. Assuming there are no other eligibility or admissibility issues, an approved provisional waiver should permit a consular officer to issue an immigrant visa without undue delays. It is reported that the average length of time a person must remain outside the United States to await issuance of an immigrant visa following the grant of a provisional waiver is about two weeks. Prior to the implementation of the provisional waiver process, it was not uncommon for individuals to be stuck outside the United States for many months, and sometimes years, while they awaited approval of a waiver.  

THE 2016 RULES 

Q: Who Can Apply for a Provisional Waiver Under the 2016 Rule and How Is This Different From the 2013 Rule? 

A: A number of changes to the threshold eligibility requirements are included in the final 2016 rule: 

a. Visa Classification/Qualifying Relative:  

• 2013 Rule: Under the 2013 rule, a provisional waiver was limited to those immigrating to the U.S. as “immediate relatives,” (spouses and children of U.S. citizens and parents of adult U.S. citizens) who could demonstrate extreme hardship to a U.S. citizen spouse or parent.  

• 2016 Rule: Under the 2016 rule, anyone who is statutorily eligible for an unlawful presence waiver under INA §212(a)(9)(B)(v), may apply for a provisional unlawful presence waiver, regardless of their immigrant visa classification. In other words, if the visa applicant can demonstrate extreme hardship to a U.S. citizen or LPR spouse or parent, he or she may apply for and receive a provisional waiver, whether the basis for the immigrant visa is an employment-based preference category, a family-based preference category, the diversity visa lottery, or a special immigrant classification.   

b. Elimination of Cut-off Dates:  

• 2013 Rule: Under the 2013 rule, if the Department of State (DOS) initially acted to schedule the immigrant visa interview prior January 3, 2013 (the date of publication of the final 2013 rule), the individual was ineligible for a provisional unlawful presence waiver. The actual date and time of the interview was not relevant to the eligibility determination. This rule applied even if the individual failed to appear for the interview, cancelled the interview, or requested that it be rescheduled.  

• 2016 Rule: Under the 2016 rule, DHS is eliminating the restrictions based on the date that DOS acted to schedule the immigrant visa interview.        

c. Final Order of Removal: 

• 2013 Rule: Under the 2013 rule, an individual with a final order of removal, deportation, or exclusion was ineligible for a provisional waiver. 

• 2016 Rule: Under the 2016 rule, an individual with a final order of removal, deportation, or exclusion may apply for a provisional waiver if he or she has filed a Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, and such application has been conditionally approved. This change is considered an important one as it allows the individuals who are otherwise eligible but got stuck in the country due to an outstanding order of removal.  

Q: I Heard that USCIS Is Eliminating the “Reason to Believe” Standard. What Does This Mean?  

A: One significant change in the 2016 rule is the elimination of the “reason to believe” standard. Under current 8 CFR §212.7(e)(4)(i), USCIS must deny a provisional waiver application if USCIS has “reason to believe” that the applicant may be subject to a ground of inadmissibility other than unlawful presence at the time of the immigrant visa interview. 

The “reason to believe” standard has been the source of much confusion. Since its implementation in 2013, USCIS was applying an overly rigid interpretation of “reason to believe,” and denying applications for individuals who would clearly not be deemed inadmissible for reasons other than unlawful presence at a consular interview. On January 24, 2014, USCIS issued a memorandum revising its policy in this area, but only when reviewing potential criminal ground of inadmissibility. 

Noting the confusion that has persisted over the past few years, USCIS is eliminating the “reason to believe” standard from the provisional waiver adjudication process with the 2016 rule. Thus, when adjudicating a provisional waiver application, USCIS will only consider whether extreme hardship has been established and whether the applicant warrants a favorable exercise of discretion. 

In addition, it is essential to thoroughly review the applicant’s entire immigration, criminal, and personal background and ensure all potential grounds of inadmissibility are vetted and reasonably eliminated prior to filing.   

Q: What Does the New Rule Say About Reinstatement of Removal?  

A: Under current 8 CFR §212.7(e)(4)(vii), an individual is ineligible for a provisional waiver if he or she is “subject to” reinstatement of a prior removal order under INA §241(a)(5). In the 2016 rule, USCIS clarified that individuals are ineligible for a provisional waiver if ICE or CBP, after following notice procedures outlined in 8 CFR §241.8, has reinstated a prior removal order, either before the client filed a provisional waiver application or while the application is pending. Thus, individuals who are “subject to” reinstatement, but have not yet received notice under 8 CFR §241.8, may apply for a provisional waiver under the 2016 rule. However, it should be noted that the provisional waiver approval would be automatically revoked if the applicant is ultimately found inadmissible under INA §212(a)(9)(C) for having unlawfully returned to the United States after a prior removal or prior unlawful presence. 

Q: Did USCIS Address “Extreme Hardship in the 2016 Rule?  

A:  No, USCIS did not define or otherwise address the “extreme hardship” standard in the 2016 rule, saying only that it will continue to make extreme hardship determinations on a case-by-case basis, consistent with agency guidance. However, on October 7, 2015, USCIS released proposed guidance on extreme hardship determinations, including information on the burden of proof, relevant case law, factors that adjudicators should consider, and special circumstances that may exist. While USCIS has not yet published the final guidance, it is expected to be released in the coming weeks. 

Q:  Will There Be a New Version of Form I-601A, Application for Provisional Unlawful Presence Waiver? 

A:  Yes, USCIS announced in the supplementary information to the 2016 rule that changes to Form I-601A, Application for Provisional Unlawful Presence Waiver, are forthcoming. USCIS stated in a press release that these changes would go into effect along with the final rule, and that the updated form would be posted on USCIS’s website on August 29, 2016.  

Q:  When Does the 2016 Rule Become Effective? 

A:  The 2016 rule is effective August 29, 2016. 

 

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Supreme Court Decision Protects Right to Immigration Advice

On March 31, 2010, Supreme Court held that criminal defense lawyers must advise their noncitizen clients about the risk of deportation if they accept a guilty plea. The Court recognized that current immigration laws impose harsh and mandatory deportation consequences onto criminal convictions, and that Congress eliminated from these laws the Attorney General’s discretionary authority to cancel removal in meritorious cases. The Court said, “These changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important.” The case, Padilla v. Kentucky, involved a Vietnam War veteran who has resided lawfully in the U.S. for over 40 years. His criminal defense lawyer told him not to worry about the immigration consequences of pleading guilty to a crime, but that advice was wrong. In fact, the guilty plea made Mr. Padilla subject to mandatory deportation from the United States. The state of Kentucky said that Mr. Padilla had no right to withdraw his plea when he learned of the deportation consequence. Today’s decision reverses the Kentucky court. It also rejected the federal government’s position (which had been adopted by several courts) that a noncitizen is protected only from “affirmative misadvice” and not from a lawyer’s failure to provide any advice about the immigration consequences of a plea. The right to counsel is at the very core of the criminal justice system. The Court affirms that immigrants should not be held accountable when they rely on incorrect advice from their lawyers or where counsel fails to provide any immigration advice at all.

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Supreme Court Holds that Courts Have Jurisdiction to Review Motions to Reopen

Kucana v. Holder, 558 U.S. ___, 2010 U.S. LEXIS 764 (Jan. 20, 2010)

In a unanimous decision, the Supreme Court held that the courts of appeals have jurisdiction to review a BIA decision denying a motion to reopen.The case focuses on the scope of INA § 242(a)(2)(B)(ii), the bar to judicial review of discretionary decisions. This section provides that “no court shall have jurisdiction to review … any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security.” In the underlying decision, Kucana v. Holder, 533 F.3d 534 (7th Cir. 2008), the Seventh Circuit had said that this provision applies to determinations declared discretionary by the Attorney General through regulation. Thus, according to the Seventh Circuit, motions to reopen, which are discretionary by regulation, are not reviewable. The Supreme Court reversed the Seventh Circuit, finding that § 242(a)(2)(B)(ii) bars review only of determinations made discretionary by statute.

The Court began its analysis by noting that a “motion to reopen is an ‘important safeguard’ intended to ‘ensure a proper and lawful disposition’ of immigration proceedings” and that there is long history of judicial review over reopening decisions. Employing tools of statutory interpretation, the Court looked to § 242(a)(2)(B)(ii)’s context and placement in the statute. It found that the surrounding judicial review provisions, § 242(a)(2)(A) (barring review over expedited removal decisions under § 235(b)(1)) and § 242(a)(2)(C) (barring review where person is removable based on specified criminal grounds) depend on statutory provisions, not on regulations, to define their scope. The Court also found that § 242(a)(2)(B)(ii) must be read in conjunction with § 242(a)(2)(B)(i), which likewise bars review over the granting of relief under specified statutory provisions (namely, waivers under 212(h) and 212(i), cancellation of removal, voluntary departure, and adjustment of status). Moreover, the Court found significant the character of the decisions Congress enumerated in § 242(a)(2)(B), which are “substantive decisions . . . made by the Executive in the immigration context as a matter of grace.” Such decisions are distinguishable from decisions on motions to reopen, which are a procedural device “serving to ensure that aliens are getting a fair chance to have their claims heard.” Finally, the Court found that had Congress intended the jurisdictional bar to apply to decisions specified as discretionary by regulation, it could have said so explicitly as it did in other places.

Next, the Court looked to the history of the motion to reopen and judicial review provisions. The Court noted that through IIRIRA Congress simultaneously codified the motion to reopen statute and numerous bars to judicial review of executive decisions. “Had Congress elected to insulate denials of motion to reopen from judicial review,” the Court said, “it could have so specified together with its codification of directions on filing motions to reopen.”

Finally, the Court found that any “lingering doubts” about § 242(a)(2)(B)(ii) would be resolved by the presumption in favor of judicial review. There is no “clear and convincing evidence” that Congress intended to bar review over determinations made discretionary by regulation. Moreover, the Court said that under the Seventh Circuit’s construction of the statute “the Executive would have a free hand to shelter its own decision from abuse of discretion appellate review simply by issuing a regulation declaring those decisions ‘discretionary.’ Such an extraordinary delegation of authority cannot be extracted from the statute Congress enacted.”


This landmark decision has protected the immigrants' rights to challenge the BIA's denial of motion to reopen under the "abuse of discretion" standard.

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Congress Ends The Widow Penalty

On October 28, 2009, President Obama signed on the bill that became Public Law Number 111-83, ending Widow Penalty. The bill contains two measures to address survivors’ issues: 1) self-petitioning rights for all widow(er)s of American citizens and their children; and 2) certain survivors’ rights for other immigrants.

PART ONE: WIDOW(ER)S OF AMERICAN CITIZENS AND THEIR CHILDREN

The law removes the two-year marriage requirement from the current law (Immigration and Nationality Act Section 201(b)(2)(A)(i)) that permits widows and widowers (“widow(er)s”) of U.S. citizens to file a self-petition for themselves and their children, while retaining the requirement to show a good faith marriage. The law does not alter the rights of widow(er)s who were married two years or more, who have been able to self-petition since 1990.

It will allow a widow(er) who was married less than two years at the time of the citizen spouse’s death to file an I-360 self-petition form within two years of the law’s passage. This self-petition can be filed concurrently (together) with an Application for Adjustment of Status to Lawful Permanent Resident (Form I-485) if the widow(er) is in the United States pursuant to a lawful entry. If the widow(er) is outside the United States, he or she can apply for an immigrant visa following the I-360 approval. The law does not require that a petition have ever been filed by the U.S. citizen spouse.

In cases where the widow(er) was already the beneficiary of an I-130 Petition for Alien Relative filed prior to the citizen petitioner’s death, such I-130 petitions can be considered automatically converted to an I-360 self-petition. Current regulations already allow such auto-conversion for self-petitions. 8 C.F.R. 204.2(i)(1)(iv). USCIS will apply those regulations to the new law, and allow for a previously denied I-130 petition (and accompanying I-485 application) to be reopened and approved as an I-360 petition.

If you are relying on the automatic conversion of a previously-filed I-130 petition, be aware that an I-360 should be filed within the two years following the law’s passage if guidance is not established by that time.

Does the law require me to obtain an Affidavit of Support Sponsor?

No. The law allows the widow(er) to self-petition, which removes the requirement that another person file an affidavit of support on behalf of the immigrant. Form I-864, Affidavit of Support, will not be required of self-petitioners. Widow(er)s must still prove they are not likely to become a public charge, based on a totality of factors listed under INA Sec. 212(a)(4)(B).

Does the law allow my children to be included?

Yes. Unmarried children of the widow(er) may be included on Form I-360 that is filed by the widow(er). Those children who are under the age of 21 years at the time the petition is filed should be eligible, as well as those children whose age determination is calculated under 201(f) of the Immigration and Nationality Act (Child Status Protection Act, or “CSPA”). CSPA allows children to qualify, even when over age 21, where the petition was filed before the child’s 21st birthday. CSPA calculations can be difficult, so competent counsel should be consulted.

If an I-130 was previously filed by the U.S. citizen on behalf of the child before the child’s 21st birthday, such petition may be considered automatically converted, and may be used to establish the child’s age for self petitioning purposes. This will be particularly helpful in cases where children have already reached age 21 at the time of the law’s passage. In cases where the child is still under 21 at the time of the law’s passage, however, it is urged that widow(er)s file the I-360 self-petition for themselves and their children in case of controversy over this auto-conversion and CSPA interpretation.

Can I receive benefits if I have remarried?

While the self-petition provision in the new law specifically requires that the widow(er) not have remarried, the provision dealing with “Surviving Relative Consideration” (see PART TWO below) does not. That section requires a petition to have been filed previously, so if no previous petition was ever filed before the death, remarriage prior to receiving permanent resident status may foreclose benefits. If a petition was filed on your behalf by your spouse, but you have now remarried, please review PART TWO below.

Are there deadlines?

Yes. For those married less than two years at the time of the citizen’s death, the law permits the filing of a self-petition on Form I-360 within two years of the law’s enactment. Because the law was enacted October 28, 2009, the deadline is October 28, 2011. After this two-year period, a petition must be filed within two years of the citizen’s death. In cases where an I-130 was previously filed by the U.S. citizen, it can be considered to have automatically converted to an I-360 petition. For those married at least two years at the time of the citizen’s death, the law remains the same: an I-360 must be filed within two years of the citizen’s death, unless automatic conversion occurs as explained above. This new law does not change that deadline.

PART TWO: OTHER SURVIVORS

What other benefits to survivors does the law provide?

The law adds a new section of law, Sec. 204(l), to the Immigration and Nationality Act. The new section allows petitions that were filed prior to the death to be adjudicated despite the death of the petitioner or the principal immigrant in cases where the beneficiary or derivative beneficiary resided in the United States at the time of the death and continues to reside in the United States. The law covers the following survivors:

  • Immediate relatives (spouse, parent, minor child of a U.S. citizen)
  • Family Preference relatives (unmarried son or daughter of a citizen, married son or daughter of a citizen, spouse or child of a permanent resident, brother or sister of a citizen)
  • Employment-based dependents (derivative beneficiaries)
  • Refugee/Asylee relative petition beneficiaries
  • Nonimmigrants in “T” (victims of trafficking) or “U” (victims of crime) status
  • Asylees

Does the law require an Affidavit of Support?

Yes. Unlike the self-petitioning widow(er)s (see PART ONE), 204(l) requires an Affidavit of Support, Form I-864. The law amends INA 213A(f)(5) to provide for a substitute sponsor in the case of a petition that is being adjudicated under the new INA 204(l).

I resided abroad at the time that my relative died. Am I covered under this new law?

Only self-petitioning widow(er)s and their qualifying children (see PART ONE) are covered under the new law where the survivor resided abroad at the time of the qualifying relative’s death. If the petition was approved prior to the qualifying relative’s death, however, current “humanitarian reinstatement” provisions found at 8 C.F.R. 205.1(a)(3)(i)(C)(2) may allow continued validity of the previously-approved petition, followed by consular processing of an immigrant visa. This would be the case even where the beneficiary was residing abroad.

Can I receive benefits if I have remarried?

While the self-petition provision in the new law specifically requires that the widow(er) not have remarried, the provision dealing with “Surviving Relative Consideration” does not.

Specifically, if a widow(er) resided in the United States at the time of the death of the qualifying relative and continues to reside in the United States, he or she shall have a petition or application for adjustment of status and any related applications adjudicated notwithstanding the death of the qualifying relative as long as the widow(er) “was…the beneficiary of a pending or approved petition for classification as an immediate relative…immediately prior to the death of his or her qualifying relative.” The clear language of the statute requires only that the person was an immediate relative immediately prior to the death. In the case of a widow(er) who remarries, this requirement is met despite the remarriage, provided a petition was filed prior to the death.

Can my petition still be denied?

The law gives the Secretary of Homeland Security some discretion to deny a petition if it is determined that approval would not be in the public interest. Most cases should be approved under this standard.

Will other related applications be adjudicated on the same basis?

Yes. New INA Section 204(l) provides that the petition, any application for adjustment of status, “and any related applications” be adjudicated notwithstanding the death of the qualifying relative. It is clear from this provision that it was the intent of Congress that such cases be treated humanely, and that the death of the relative should not form the sole reason for denial. Applications related to petitions and applications for adjustment of status include such things as waiver applications (Form I-212, Form I-601).

Under the new law, it should be possible for survivors (including spouses of American citizens, and all listed survivors) to be approved for waivers of inadmissibility notwithstanding the death of the qualifying relative, provided a petition was filed by the qualifying relative prior to the death, or in the case of a derivative, on behalf of the qualifying relative.

(Note: This information is of a general nature and cannot be substituted for advice of competent counsel in an individual case.)

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DEFERRED ACTION FOR CERTAIN YOUNG PEOPLE WHO CAME TO THE UNITED STATES AS CHILDREN

On June 15, 2012, Department of Homeland Security (DHS) Secretary Janet Napolitano issued a new memorandum to U.S. Customs and Border Protection (CBP), U.S. Citizenship and Immigration Services (USCIS), and U.S. Immigration and Customs Enforcement (ICE) explaining how prosecutorial discretion should be used with respect to individuals who came to the United States as children. Specifically, the memorandum directs that certain young people who do not present a risk to national security or public safety and meet specified criteria will be eligible to receive deferred action for two years, subject to renewal, and to apply for work authorization. Requests for relief are to be decided on a case-by-case basis, and applicants must pass a background check before they can receive deferred action. The memorandum, which was accompanied by a list of Frequently Asked Questions (FAQ), builds on prior DHS guidance regarding the exercise of prosecutorial discretion in low priority cases.

Individuals who meet the following criteriafrom Secretary Napolitano’s June 15, 2012 memorandum will be considered for deferred action:

  • Have arrived in the U.S. when they were under the age of sixteen;
  • Have continuously resided in the U.S. for at least five years prior to June 15, 2012 and have been present in the U.S. on June 15, 2012;
  • Currently be in school, have graduated from high school, have a GED, or be an honorably discharged veteran of the U.S. Coast Guard or the U.S. Armed Forces;
  • Not have been convicted of a felony offense, a "significant misdemeanor offense," three or more non-significant misdemeanors, or otherwise pose a threat to national security or public safety; and
  • Have been under thirty-one years old on June 15, 2012.

Deferred action is a discretionary DHS decision not to pursue enforcement against a person for a specific period. A grant of deferred action does not confer lawful immigration status or alter an individual’s existing immigration status. While deferred action does not cure any prior period of unlawful presence, time in deferred action status is considered a period of stay authorized by the Secretary of DHS. An individual does not accrue unlawful presence for purposes of INA §§212(a)(9)(B) and (C)(i)(I) while in deferred action status. However, deferred action cannot be used to establish eligibility for any immigration benefit that requires maintenance of lawful status. A grant of deferred action can be renewed or terminated at any time.

The deferred action offer will be available to those in proceedings, as well as those who apply affirmatively. [NOTE: Individuals who are NOT in proceeding should NOT apply affirmatively at this time.]

Some provisions of the memorandum took effect immediately. Notably, ICE and CBP were instructed to exercise their discretion to refrain from placing individuals who meet the eligibility criteria into removal proceedings or being removed from the United States. ICE further was instructed to grant deferred action to anyone who meets the eligibility criteria and was offered prosecutorial discretion under ongoing review of pending removal cases first announced in August 2011, regardless of whether the offer was accepted or declined.

Individuals who meet the eligibility criteria and are not currently in removal proceedings, including those subject to final orders of removal, will be able to submit affirmative applications for deferred action to USCIS. USCIS must establish an application process within 60 days of the date of the memorandum, i.e., on or before August 14, 2012. Applicants should not submit applications to USCIS before this process has been established, as they will be rejected. ICE will review cases of individuals in removal proceedings to determine whether they meet the eligibility criteria. ICE’s process for review is evolving. Currently, ICE Headquarters appears to be granting deferred action to individuals known to meet the eligibility criteria without requiring any further action on their part.

It should be noted that the memorandum does not require uninterruptedphysical presence for five years—only continuous residence.Brief and innocent absences undertaken for humanitarian purposes will not violate this requirement. Eligible applicants must provide documentations that will satisfy each requirement or criteria mentioned above.

From August 15, 2012, USCIS has started accepting the Deferred actions applications. The Form 821D, I-765, I-765Ws should be utilized.

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PRESIDENT OBAMA'S EXECUTIVE ORDER ON IMMIGRATION

 

On November 20 and 21, 2014, President Obama announced his “immigration accountability executive action,” which includes a series of measures that are first steps towards common-sense reforms to an outdated immigration system. The series of executive actions presented by the administration range from new temporary immigration protections for many unauthorized parents of U.S. citizens and lawful permanent residents to highly technical regulatory proposals to fix outdated visa provisions. The series of changes, updates, and temporary measures relies on the expansion of successfully implemented programs, enhanced efforts to coordinate immigration enforcement and benefit policies across agencies, and attempts to use immigration as a tool of economic and social change. At the same time, the policies reflect the limits of executive authority, in many cases offering temporary respites until Congress definitively acts to reform the law. This guide from the American Immigration Council puts the issues in context, explaining what we know about the executive actions thus far, what the President’s legal authority is for these actions, and some of the history and background that preceded the announcement.

Overview Of The Immigration Accountability Executive Action

The President announced efforts to retool critical aspects of the immigration system—how we enforce immigration laws, how we process immigration benefits, how we encourage further business innovation, and how we welcome immigrants to this nation. In addition, acknowledging the failure to reach a legislative solution that addresses the fate of unauthorized immigrants who have lived in the country for years, the President authorized the Department of Homeland Security (DHS) to significantly expand its use of deferred action to provide temporary protection from removal for millions of unauthorized immigrants currently in the U.S. This will be accomplished through expansion of the current Deferred Action for Childhood Arrivals (DACA) program, as well as the creation of a new deferred action program, Deferred Action for Parental Accountability (DAPA).

(The Programs called DACA and DAPA never became effective as a result of the federal aw suit Texas v. USA. A a federal judge blocked the law that was affirmed by the Fifth Circuit. Recently, a equally divided panel of US Supreme Court affirmed the decision below in June 2016)

The expanded use of deferred action is coupled with other enforcement measures, including a new, department-wide enforcement priorities memo that provides greater direction to all agencies to focus attention on national security threats, those with criminal convictions, and recent unlawful entrants. DHS is replacing the controversial Secure Communities program in favor of a new model of federal/state/local cooperation that focuses on convicted criminals rather than all unauthorized immigrants encountered by local authorities. DHS will further consolidate its approach to border security, developing new task forces to coordinate the numerous federal actors at the southern border.

Inter-agency task forces will be formed to make recommendations to modernize and streamline current visa-processing practices; improve coordination among the Department of Labor, DHS, and other federal agencies; and ensure the protection of immigrant workers’ rights. The President also created a New Americans Task Force, tasking a broad range of federal agencies to develop a national policy on immigrant integration and cooperation with local communities, and has directed U.S. Citizenship and Immigration Services (USCIS) to embark on an ambitious effort to encourage naturalization.

Numerous other programs will be tweaked or expanded, including programs that protect unauthorized family members of persons who join the military, an expansion of eligibility for in-country processing of waivers of the three- and 10-year admission bars, and protections for high-skilled workers transitioning from a temporary to a permanent legal status. 

These measures will be implemented in a variety of ways. For instance, the President signed two memoranda launching initiatives around integration and visa reform, but other actions have been announced through memos issued by DHS and other cabinet agencies. Some, such as the new enforcement priority memo or eligibility for deferred action programs, have specific categories and criteria already established. Other memos direct the agencies to explore, consider, draft, recommend, or otherwise issue policies and recommendations that will be developed and implemented over the course of the next two years. In either case, answers to many questions about how programs will be developed or implemented, and the role of stakeholders in shaping them, are still forthcoming.

Deferred Action Programs

What is the new DAPA program?

The Deferred Action for Parental Accountability (DAPA) is a prosecutorial discretion program administered by USCIS that provides temporary relief from deportation (called deferred action) and work authorization to unauthorized parents of U.S. citizens or Lawful Permanent Residents (LPRs). The DAPA program resembles the DACA program in some important respects, but the eligibility criteria are distinct.

The program will be open to individuals who:
• have a U.S. citizen or LPR son or daughter as of November 20, 2014;
• have continuously resided in the United States since before January 1, 2010;
• are physically present in the United States on November 20, 2014, and at the time of applying;
• have no lawful immigration status on November 20, 2014;
• are not an enforcement priority, which is defined to include individuals with a wide range of criminal convictions (including certain misdemeanors), those suspected of gang involvement and terrorism, recent unlawful entrants, and certain other immigration law violators;
• present no other factors that would render a grant of deferred action inappropriate; and
• pass a background check.

DAPA grants will last for three years. The DAPA program should be ready to receive applications within 180 days from the date of announcement.

How was DACA expanded?

Deferred Action for Childhood Arrivals (DACA) is a prosecutorial discretion program administered by USCIS that provides temporary relief from deportation (deferred action) and work authorization to certain young people brought to the United States as children often called “DREAMers.” While DACA does not offer a pathway to legalization, it has helped over half a million eligible young adults move into mainstream life, thereby improving their social and economic well-being. On November 20, 2014, the Administration modified the DACA program by eliminating the age ceiling and making individuals who began residing here before January 1, 2010 eligible. Previously, applicants needed to be under the age of 31 on June 15, 2012, and to have resided here continuously since June 15, 2007. Moreover, the Administration announced that DACA grants and accompanying employment authorization will, as of November 24, 2014, last three years instead of two. While USCIS will continue to take applications and renewals under current eligibility criteria, those eligible under the new criteria should be able to apply within 90 days of the announcement.
How many people are affected?

The White House estimated that almost 5 million unauthorized immigrants could be directly affected by the DACA and DAPA programs. A recent analysis from the Migration Policy Institute estimates that as many as 3.7 million unauthorized immigrants could be eligible for the DAPA program, while another 300,000 people could qualify for DACA under the expanded guidelines. Based on previous estimates that 1.2 million people were eligible for the original DACA program, this expansion brings the total of potential DACA-eligible individuals to 1.5 million people. Taken together, the MPI figures suggest that 5.2 million unauthorized immigrants could qualify for protection from removal under the two programs. However, past experience suggests that the actual number who apply for the program may ultimately be much smaller, depending on outreach, access, cost, and numerous other factors

How will the government ensure that people eligible for DAPA are not deported before the new program is in place?

DHS has instructed officials in both Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) to identify expanded DACA and DAPA-eligible individuals who are already in their custody, in removal proceedings, scheduled for deportation, or whom they newly encounter, and to exercise discretion favorably for those individuals. For eligible individuals in immigration court or before the Board of Immigration Appeals, ICE lawyers are instructed to close or terminate their cases and refer those individuals to USCIS for case-by-case determinations.

How will the deferred action programs be financed?

The deferred action programs will be financed by a user fee of $465 per application. This is similar to the DACA program that President Obama announced in 2012. DHS has stated that “there will be no fee waivers and, like DACA, very limited fee exemptions.”

Why can’t the President just grant a permanent legal status and be done with this?

The new DAPA program, like the DACA program, is a temporary measure, designed to eliminate the fear of removal while the country comes to a resolution about permanent legal status for the unauthorized. The executive branch can defer action, effectively declining to remove an individual, but only Congress can determine who is eligible for permanent legal status and citizenship.

Why isn’t DAPA an amnesty?

The DAPA and DACA programs are temporary measures that do not meet either the technical or the political definitions of amnesty in use today. Technically, an “amnesty” is a governmental pardon, often issued to individuals or groups convicted of crimes, and it represents a form of forgiveness in which the offending party is admitted back into the fold. The 1986 legalization program was often referred to by its supporters as an amnesty—under that program, people who were in the country unlawfully could come forward, prove that they met certain criteria, pay fees, and obtain a green card. Over the years, the term amnesty has been appropriated by immigration critics and restrictionists to imply a “something for nothing” deal, in which legalization is viewed as a reward for entering the country unlawfully. For many immigration critics, anything short of deportation is an “amnesty,” irrespective of the stringent criteria put in place to ensure that unauthorized immigrants pay penalties and fulfill numerous other requirements to obtain a legal status. In the case of DACA and DAPA, these programs offer some unauthorized immigrants a temporary reprieve, but offer neither permanent legal status nor a chance at citizenship. That power remains in the hands of Congress.

Will DAPA recipients be eligible for public benefits?

DAPA recipients will not be eligible for federal public benefits, including federal financial aid, food stamps, and housing subsidies. The New York Times has reported that the Obama Administration will promulgate regulations to exclude DAPA recipients from any benefits under the Affordable Care Act, much as it did in the aftermath of the DACA announcement.

Whether DAPA recipients will be eligible for state benefits and opportunities like driver’s licenses, in-state tuition, and professional licenses will turn on the law of the state. As of the publication of this guide, deferred action recipients are eligible for driver’s licenses in the overwhelming majority of states.
Immigration Benefits and Visa Processing

What is the Presidential Memorandum on visa modernization?

On November 21, 2014, the President issued the Presidential Memorandum on “Modernizing and Streamlining the U.S. Immigrant Visa System for the 21st Century.” In this memo, the President called on immigration agencies to develop recommendations to improve the current visa system, while at the same time reinforcing that legislative reforms were needed to bring the U.S. immigration system in line with current economic and national security needs. He has directed the Secretaries of the Departments of Homeland Security and State, working in consultation with the White House, the Attorney General, the Secretaries of Agriculture, Commerce, Labor, and Education, and non-governmental stakeholders to submit recommendation to him by March 20, 2015.

The recommendations shall be designed to ensure (1) that the processing of all immigrant (permanent) and non-immigrant (temporary) visas is done efficiently, with an emphasis on reducing costs, waste, and fraud while improving services; (2) that all available immigrant visa numbers are used consistent with demand; and (3) that a stronger technology infrastructure exists to improve the applicant’s experience, enable better oversight, and eliminate duplicative systems. The recommendations must include metrics for measuring progress in implementation and in achieving service improvements, while still protecting U.S. border integrity and economic opportunities for U.S. and foreign workers.
What changes are proposed for employment-based visas?
DHS Secretary Jeh Johnson issued a memorandum outlining new policies that support U.S. high-skilled businesses and workers by better enabling U.S employers to hire and retain foreign workers. First, the Secretary directed USCIS to take steps to reduce wait times for employment-based immigrant visas and improve visa processing.  Far too often, visas have gone unused due to processing issues. USCIS will work with the Department of State (DOS) to ensure that all visas authorized by Congress are issued to eligible individuals when there is sufficient demand.  USCIS also will work with DOS to improve the process for determining when immigrant visas are available to applicants during the fiscal year. In addition, the Secretary directed USCIS to consider regulatory or policy changes that ensure that individuals with pending immigrant visa petitions will not lose their place in line if they change jobs.
Second, the agencies have announced a series of policy changes intended to prevent ambitious and creative people, many of whom received their higher education in the United States, from continuing to leave the country and work abroad—a trend that has created great uncertainty and frustration for employers. The proposed changes will include:

• Reforms to the Optional Practical Training (OPT) program, which authorizes foreign students before and after graduation from U.S. schools to gain experience through work in their fields. The changes would expand the degree programs eligible for OPT. In addition, they would allow foreign students with degrees in designated science, technology, engineering, and mathematics (STEM) fields who are already eligible for OPT to work for a longer period in the United States.
• Expanded opportunities for foreign inventors, researchers, and founders of start-up enterprises to conduct research and development and create jobs in the United States.
• Consolidated guidance to ensure greater consistency in the adjudication of L-1B visas for “intracompany transferees.” These visas allow multinational companies to transfer certain managers, executives, or persons with specialized knowledge in their fields to the United States for a temporary period.
• Increased flexibility in the rules permitting applicants for employment-based permanent resident status to change jobs (called “porting”), if their applications are stalled due to processing delays.
• Review of the Department of Labor’s certification process for foreign labor, known as the PERM process. The certification process is an initial step in obtaining employment-based permanent resident status and requires DOL to determine that there are not sufficient U.S. workers for the position and that employment of the foreign worker will not adversely affect U.S. workers.
• Completing work on current initiatives such as providing employment authorization to certain spouses of foreign workers with H-1B visas (i.e., high-skilled, temporary workers) who have been approved to receive permanent resident status based on employer sponsorship.

PROVISIONAL WAIVER

What is a provisional waiver and how does it help family members of U.S. citizens and lawful permanent residents who might be eligible for permanent status?

Many unauthorized family members of U.S. citizens and LPRs could become permanent residents themselves if they left the United States, requested and obtained a waiver of inadmissibility for their unlawful presence in the United States (three- and 10-year bars problem), and then applied for an immigrant visa through a U.S. consulate abroad. This process is uncertain and can take years, during which time the individual is separated from his or her family in the United States.

In 2013, USCIS adopted regulations allowing spouses, minor children, and parents of U.S. citizens to apply for the inadmissibility waiver from within the United States and then travel abroad for consular processing after USCIS provisionally granted the waiver. These changes significantly reduced the time that family members had to remain outside the country and provided more confidence that they would be able to return. Under new DHS guidance, USCIS is directed to adopt a new regulation expanding the family members eligible for the “provisional waiver” process (also known as “stateside processing”) to include adult children of U.S citizens and LPRs and spouses and minor children of LPRs. There is no deadline for the adoption of these new regulations.

The Secretary of Homeland Security also directed USCIS to provide additional guidance regarding the standards for obtaining a provisional waiver. In order to obtain a waiver, a person must demonstrate that his or her absence from the United States would cause “extreme hardship” to a spouse or parent who is a U.S. citizen or LPR. Neither the statute nor the courts have specifically defined what constitutes hardship. The Secretary of Homeland Security stated that “additional guidance about the meaning of the phrase ‘extreme hardship’ would provide broader use of this legally permitted waiver program.”

What are the distinctions between parole, advance parole, and parole in place?

At least three separate DHS memos address various aspects of “parole.” In the immigration context, parole refers to allowing an individual to temporarily enter the United States for purposes of significant public benefit or for humanitarian reasons without technically admitting the person into the country. Although parole is issued on a case-by-case basis, there is a long history of designated categories of individuals who may qualify for parole.

“Advance parole” and “parole-in-place” are forms of parole. Advance parole refers to giving an individual currently residing in the United States in a temporary status permission to travel abroad for a short period and return to the United States without jeopardizing the existing status. Parole-in-place is parole in which an individual who is already in the United States, but who is here without permission, is nonetheless granted parole without having to leave the country. Individuals granted parole—including advance parole and parole-in-place—may ultimately be able to gain lawful permanent status without leaving the United States, if they are otherwise eligible.

What changes are being made to parole policies?

Parole In Place To Protect Military Families

Secretary Johnson announced new policies to protect unauthorized families of the U.S. military and of those seeking to enlist. In November 2013, DHS issued guidance permitting parole-in-place for unauthorized family members of military personnel and veterans. The new guidance will expand the availability of parole-in-place, as well as deferred action, to family members of U.S. citizens and lawful permanent residents who seek to enlist in the U.S. Armed Forces. The Secretary also asked USCIS to consider granting deferred action to family members of current military personnel and veterans who have overstayed their visas.

Department-wide advance parole policy

Under direction from the Secretary of Homeland Security, DHS officials will be instructed to follow a 2012 immigration decision (Matter of Arrabally), finding that a lawfully present individual who travels abroad after a grant of advance parole does not trigger the three- or 10-year bars that ordinarily apply when a person departs the United States after residing here unlawfully for more than six months. Under this decision, individuals who would be eligible for LPR status but for the fact that their last entry into the United States was unlawful may be able to apply for permanent resident status upon their parole back into the United States. The new DHS instruction will ensure consistent application across the department.

Parole for investors, researchers, and founders of start-up enterprises

USCIS has been directed to draft regulations for a new category of parole to enable certain inventors, researchers, and founders of start-up businesses to enter the United States before they become eligible for a visa. Parole would allow these individuals to temporarily pursue research and development of promising ideas and businesses in the United States, rather than abroad.

CITIZENSHIP

How will executive action affect integration and naturalization?

On November 21, 2014, the President issued a Presidential Memorandum, “Creating Welcoming Communities and Fully Integrating Immigrants and Refugees,” establishing a White House Task Force on New Americans. Within 120 days, the task force, made up of officials from across the executive branch, is expected to present recommendations that will allow the federal government to shape a national integration strategy. The memorandum places a heavy emphasis on working with state and local groups who have been championing immigrant integration, with the goal of leveraging federal, state, and local resources to improve efforts to assist and welcome immigrants, as well as the communities that receive them.
Ultimately, immigrant integration is also connected to assisting with the transition from LPR status to citizenship. On November 20, 2014, DHS Secretary Johnson issued a memorandum memo directing USCIS to explore options to expand access to naturalization and to consider innovative ways to address barriers that may impede access, including for those who lack resources to pay application fees. Among other items, USCIS will implement credit card processing for fee payments, determine whether it could expand its use of fee waivers, and conduct a major marketing campaign encouraging naturalization.

ENFORCEMENT

How will immigration enforcement change?

At the start of the Obama Administration, DHS sought to shift its priorities toward what it termed “smart, effective enforcement.” To this end, the agency replaced the worksite raids of the past with a new worksite enforcement strategy prioritizing investigation and prosecution of “egregious” employers who drive the demand for unauthorized immigration. Outside the worksite enforcement context, DHS committed to focusing on the apprehension of noncitizens convicted of serious crimes or who posed security risks.
However, the agency’s stated priorities were not always followed in practice. Agents on the ground continued to arrest large numbers of people with strong family and community ties in the United States and no criminal histories. Meanwhile, DHS continued to expand its use of programs like Secure Communities, which involved state and local law-enforcement agencies in immigration enforcement activities with minimal oversight by the federal government.

Between 2010 and 2011, then-ICE Director John Morton issued various memoranda encouraging the expanded exercise of prosecutorial discretion in all phases of civil immigration enforcement. Two months later, DHS announced the establishment of a joint DHS-Department of Justice (DOJ) working group charged with reviewing all cases pending before the immigration courts to identify those appropriate for administrative closure. In June 2012, DHS announced that certain individuals who came to the United States as children would be eligible for a form of prosecutorial discretion known as Deferred Action for Childhood Arrivals (DACA).

The new measures announced on November 20, 2014, represent an attempt to further refine DHS policy and procedures for prioritizing removals, reducing the likelihood that unauthorized immigrants who have resided in the United States for many years and have committed no crimes will be targeted for removal. The release of a single enforcement priorities memo binding on all DHS agencies, the restructuring of those priorities, and the replacement of the Secure Communities program represent a more streamlined and consistent enforcement scheme. In addition, the potential inclusion of nearly 5 million people in deferred action programs will allow enforcement resources to be better targeted towards individuals who pose a real risk to public safety, as well as cross-border criminal enterprises and other high-priority objectives.

What is the purpose of the new priorities memo?

DHS Secretary Jeh Johnson issued a new memorandum entitled “Policies for Apprehension, Detention and Removal of Undocumented Immigrants” on November 20, 2014, setting forth department-wide policies for prioritizing the removal of unauthorized immigrants. For the first time, all DHS agencies will operate under a shared set of enforcement priorities that are focused on the removal of individuals who pose threats to “national security, public safety, and border security.” These topline priorities include persons engaged in or suspected of terrorism or espionage, persons convicted of felonies, persons convicted of offenses defined as aggravated felonies by the immigration law, gang related convictions or intentional participation in gang activities, and recent border crossers. The memo identifies secondary priorities, including convictions for significant or multiple misdemeanors (excluding traffic violations) and recent border crossers (those who entered after January 1, 2014). Lowest priority is accorded to other individuals ordered removed after January 1, 2014. Irrespective of these priorities, persons eligible for asylum or other relief should not be targeted. However, the memo also indicates that anyone can be a target for removal if an ICE Field Office Director determines that removal would serve an important federal interest. The memo supersedes many previous policies, including ICE-specific memos issued by former ICE Director Morton, excluding a memo designed to protect victims of crimes and other vulnerable groups. Following a period of training, the memo will become effective on January 5, 2015.

What does it mean that the President is ending Secure Communities?

The Secure Communities program has been plagued with problems since its inception. Critics of the program have denounced its adverse impact on community policing, asserting that it encourages racial profiling, and highlighting the mounting evidence that many individuals encountered and subsequently removed through the program did not actually represent a threat to security or public safety. As DHS noted, “Governors, mayors and state and local law enforcement officials around the country have increasingly refused to cooperate with the program.” Moreover, “detainers,” the lynchpin of Secure Communities and other ICE enforcement programs, have been found unconstitutional in numerous courts across the country. A detainer is a request from ICE that a state or local jail hold an individual beyond the point when the person would otherwise be released so that ICE can take the person into immigration custody.

The Secure Communities memo issued November 20, 2014, by Secretary Johnson acknowledges many of the program’s shortcomings, and recognizes that the program could not continue in its prior form. By launching the Priority Enforcement Program (PEP), a new program that focuses efforts on apprehending individuals actually convicted of specified crimes, the agency should minimize its use of detainers. And by monitoring implementation to uncover any biased policing, the agency is attempting to address many of the problems that plagued Secure Communities.

DHS will retain its ability to gather fingerprint-based biometric data obtained by state and local law enforcement during bookings and submitted to the FBI. However, it will substantially alter what it does with this data. First, under PEP (unlike Secure Communities), DHS typically will seek custody only of a person who has been convicted of certain offenses referenced in its enforcement priorities memo or who otherwise poses a risk to national security. The types of convictions that will trigger DHS action include national security-related crimes, gang activity, felonies and aggravated felonies, three or more misdemeanors, and “significant misdemeanors” (such as domestic violence, burglary, firearms offenses, drug trafficking, and DUI).

PEP also will employ new detainer policies. In general, ICE will no longer issue detainers. Instead, ICE will request that the state and local authority notify ICE of a person’s pending release. ICE will continue to issue detainers (i.e., request detention) “in special circumstances”— namely, where the person has a final order of removal, or there is sufficient probable cause that the person is removable.
Finally, DHS will implement monitoring procedures to determine if “biased policing” is occurring under the PEP program. DHS designated the Office of Civil Rights and Civil Liberties to monitor state and local law-enforcement agencies participating in transfers of high-priority individuals to ICE.

What is the Southern Border and Approaches Campaign Plan?

In his address to the nation on November 20, 2014, President Obama emphasized that his administration would continue efforts to secure the southern border. In fact, DHS already had begun to implement a new, coordinated, southern border strategy earlier in April 2014. Then, in May, the Secretary announced the Southern Border and Approaches Campaign Plan, which he described in testimony before the House Judiciary committee as a program that:

“will be guided by specific outcomes and quantifiable targets for border security, approved by me, and will address improved information sharing, continued enhancement and integration of sensors, and unified command and control structures as appropriate. The overall planning effort will also include a subset of campaign plans focused on addressing challenges within specific geographic areas.”
Will the new executive actions address any labor protection issues?
The Department of Labor (DOL) announced an Interagency Working Group designed to ensure the consistent enforcement of federal labor, employment, and immigration laws with an emphasis on improving and coordinating the protection of workers who find themselves at the intersection of immigration and labor protection laws. The taskforce will work to promote consistent policies that encourage immigrant workers to cooperate with labor enforcement officials without fear of retaliation and to ensure that unscrupulous employers do not attempt to undermine worker protection laws by enmeshing immigration officials in labor disputes. These efforts will include strengthening tools to prevent immigrant workers from being removed during a labor dispute.

In addition, DOL’s Wage and Hour Division (WHD) will expand its role in certifying that individuals have been the victims human trafficking or certain other crimes so as to assist those individuals in establishing eligibility for U or T visas. U visas provide legal status to victims of an enumerated list of “qualifying criminal activities” who have suffered substantial physical or mental abuse, who possess information concerning that crime, and who have been or are likely to be helpful to law enforcement or government officials. T visas provide legal status to certain victims of human trafficking who assist law-enforcement authorities in the investigation or prosecution of trafficking crimes.

In 2011, WHD began completing U visa certifications for victims of crimes detected during its workplace investigations, including trafficking, involuntary servitude, peonage, obstruction of justice, and witness tampering. Beginning in 2015, WHD also will complete certification in appropriate cases of extortion, forced labor, and fraud in foreign labor contracting for U visa applicants, and it will complete T visa certifications for individuals it determines to be victims of human trafficking.

Legal Authority for these Executive Actions

How is immigration authority divided between the President and Congress?

Congress makes U.S. immigration laws—for example, the laws that govern how noncitizens may become lawful permanent residents (green card holders) or U.S. citizens. However, the President, as head of the federal executive branch, is ultimately in charge of enforcing U.S. immigration laws. In turn, he must make discretionary decisions, through his agencies, about whether and when to grant benefits or pursue enforcement actions.

What is prosecutorial discretion?

Prosecutorial discretion is the power of the executive to determine when to enforce the law. It is “one of the most well-established traditions in American law,” and is common and “long-accepted...in practically every law enforcement context.” In the criminal context, law enforcement officials make decisions about whether and when to file or drop charges, how to approach plea bargaining, and when and how to bring cases to trial.
In the immigration context, prosecutorial discretion refers to the Department of Homeland Security’s authority to decide whether—and to what degree—to enforce the law in a particular case. Prosecutorial discretion may take multiple forms. It covers DHS decisions to refrain from pursuing enforcement, like cancelling or not serving or filing a charging document (known as a Notice to Appear) with the immigration court, as well as decisions to provide a discretionary remedy, like granting a stay of removal, parole, or deferred action. A favorable grant of prosecutorial discretion does not provide formal legal status or independent means to obtain permanent residency. It does, however, provide a temporary reprieve from deportation.

Does the President have the legal authority to authorize deferred action for 5 million people?

Yes. The obligation of the executive branch to enforce the law also carries with it the discretion to determine when, how, and against whom the law will be enforced.  As DOJ’s Office of Legal Counsel has noted, the practice of granting deferred action has been acknowledged by both Congress and the Supreme Court. Moreover, the actual process remains individualized, resembles the kinds of deferred action programs that Congress has previously approved, and is consistent with longstanding principles of prosecutorial discretion. In addition, more than 100 law professors from around the nation have also affirmed that both the DACA and DAPA programs are well within the President’s authority.

Have other presidents made use of deferred action or other executive branch action to address immigration issues?

There is ample historical precedent for executive branch action on immigration matters. Since 1956, every U.S. president since Eisenhower has taken executive action to grant temporary immigration relief to those in need of assistance. In at least 39 instances, presidents have acted to protect families from separation, in response to foreign policy crises, or in recognition of pending legislation.

Perhaps the most striking historical parallel to DACA and DAPA are the “Family Fairness” deferred actions implemented by Presidents Ronald Reagan and George Bush, Sr. The 1986 Immigration Reform and Control Act (IRCA) gave up to 3 million unauthorized immigrants a path to legalization if they had been “continuously” present in the United States since January 1, 1982. But the new law created “split-eligibility” families, like today’s mixed-status families, by excluding spouses and children who didn’t qualify. The law’s legislative history explicitly provided that these family members would have to “wait in line.”
In 1987, Reagan’s Immigration and Naturalization Service (INS) commissioner announced a blanket deferral of deportation (logistically similar to today’s DACA program) for children under 18 who were living in a two-parent household with both parents legalizing, or with a single parent who was legalizing. Then, in July 1989, the Senate passed legislation to protect a larger group prohibiting deportation of all spouses and children of those who were legalizing under IRCA. But the legislation stalled in the House.
In 1990, President Bush Sr. administratively implemented the Senate bill’s provisions. The House then passed legislation, and President Bush signed it later that year.

HISTORY AND BACKGROUND

What is the history of immigration reform during the Obama administration?

President Obama has long promised that he would work to improve the nation’s immigration system. In May 2008, while campaigning, then-Sen. Obama told Univision news anchor, Jorge Ramos, that he wanted Congress to introduce a comprehensive immigration reform bill in his first year as president and that “I want to move that forward as quickly as possible.” But as the congressional immigration debate stalled, the Obama Administration took steps to clarify immigration policy.
On June 17, 2011, then-ICE Director Morton issued two significant memoranda on the use of prosecutorial discretion in immigration matters. Prosecutorial discretion refers to the agency’s authority to decide whether—and to what degree—to enforce the law in a particular case. The primary memo (the Morton Memo on Prosecutorial Discretion) calls on ICE attorneys and officers to refrain from pursuing noncitizens with close family, educational, military, or other ties to the United States and instead spend the agency’s limited resources on persons who pose a serious threat to public safety or national security. Morton’s second memo focuses on exercising discretion in cases involving crime victims, witnesses to crimes, and plaintiffs in good faith civil rights lawsuits.

And in June 2012, President Obama announced the Deferred Action for Childhood Arrivals (DACA) program, which offers reprieves from deportation for young immigrants who were brought to the country as minors and meet other specific requirements. President Obama said the policy was “the right thing to do,” calling DREAMers “Americans in their hearts, in their minds, in every single way but one: on paper.” Through the 2014 fiscal year, more than half a million young immigrants have received temporary legal status through DACA.

In 2014, after the failure of the House of Representatives to move any comprehensive immigration legislation, the President vowed to take action on his own. In his announcement of the actions he said:
“When I took office, I committed to fixing this broken immigration system… I worked with Congress on a comprehensive fix, and last year, 68 Democrats, Republicans, and independents came together to pass a bipartisan bill in the Senate… Had the House of Representatives allowed that kind of bill a simple yes-or-no vote, it would have passed with support from both parties, and today it would be the law. But for a year and a half now, Republican leaders in the House have refused to allow that simple vote… Now, I continue to believe that the best way to solve this problem is by working together to pass that kind of common sense law. But until that happens, there are actions I have the legal authority to take as President—the same kinds of actions taken by Democratic and Republican presidents before me—that will help make our immigration system more fair and more just.”

What happened in the 113th Congress?

There was a renewed push for comprehensive immigration reform following the 2012 election. “I think a comprehensive approach is long overdue, and I’m confident that the president, myself, others, can find the common ground to take care of this issue once and for all,” said House Speaker John Boehner in a post-election press conference. In January 2013, eight Senators—Democrats Chuck Schumer (NY), Dick Durbin (IL), Bob Menendez (NJ), and Michael Bennet (CO); and Republicans John McCain (AZ), Marco Rubio (FL), Lindsey Graham (SC), and Jeff Flake (AZ)—released their framework for comprehensive immigration reform. Most notably, the proposal would give unauthorized immigrants already in the country a chance to earn U.S. citizenship. The four “legislative pillars” this framework outlined became the basis for S. 744, the bipartisan immigration bill that the Senate passed 68-32 in June 2013.
Just before the Senate approved S. 744, Boehner said the House would not take up S. 744 but would focus on its own immigration bill instead. More than half a dozen immigration bills were introduced in the House of Representatives, but no major immigration-related legislation had made it to the House floor by the end of 2013. House Republicans focused on a piecemeal approach, while House Democrats rallied behind H.R. 15, a comprehensive immigration bill similar to S. 744.

In January 2014, Boehner released the House Republicans’ principles of immigration reform, but those guidelines did not lead to a renewed push for reform. House Democrats attempted to force Boehner to call a vote on H.R. 15 when they filed a discharge petition in March, but it did not receive enough votes. Instead of offering a legislative solution to the broken immigration system, before the August recess House Republicans approved two bills that allocated only a fraction of the funds needed to address the humanitarian situation surrounding unaccompanied children and that would have ended the DACA program, stripping deportation relief for more than half a million young immigrants.

         Conclusion

Taken as a whole, the package of executive actions announced on November 20 and 21 are a first step toward a broader conversation on immigration policy. In the first days after these announcements, it is the expansion of DACA and creation of DAPA that received the most attention, but supporters and critics alike are carefully reviewing all the programs to determine what they mean for the country. As is so often the case, the critical question is whether good ideas and policies issued from Washington will translate into real progress on the ground. There are many hopeful signs that these programs can have a lasting and positive impact on our immigration policies, but thoughtful implementation and engaging with stakeholders who care very deeply about these issues—from enforcement concerns, to the border, to business to labor rights—will be critical to ensuring that the promise of change is realized. And even if all of the programs are implemented in the best and fairest manner possible, it will still not be enough without legislative reform of the system.

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EXECUTIVE ACTION PROVIDES CERTAIN H-4 WORK AUTHORIZATION

As part of the package of executive actions announced in November 2014, the secretary of Homeland Security directed the immigration agencies to implement new policies and regulations intended to support U.S. high-skilled businesses and workers. Last week, U.S. Citizenship and Immigration Services (USCIS) issued the first of these new regulations: effective May 26, 2015, spouses of certain highly-skilled workers in H-1B status will be able to apply for employment authorization. This is a welcome change, as this regulation will support efforts to grow the American economy and help retain much-needed skilled workers who have committed to permanent employment in the United States.
This new regulation only applies to H-4 spouses where the H-1B spouse is already on the path to permanent resident status. Specifically, the spouse in H-1B status must fit into either of the following situations. He or she must be the principal (direct) beneficiary of an employment-based immigrant visa petition already approved by USCIS. Or the person must have H-1B status based on a law (“AC21”) that authorizes USCIS to extend this status beyond the normal six-year limit when the employer has met the law’s requirements for beginning
the permanent status process.

Because of various limits on the number of immigrant visas available each fiscal year, many H-1B workers and their families must wait an extremely long time before they can apply to adjust their status to permanent residence in the U.S., at which time the H-4 spouse also could apply for work authorization. As USCIS Director Leon Rodriguez stated, “Allowing the spouses of these visa holders to legally work in the United
States makes perfect sense.  It helps U.S. businesses keep their highly skilled workers by increasing the chances these workers will choose to stay in this country during the transition from temporary workers to permanent residents.”

This new regulation also is consistent with laws that try to ensure that necessary skilled workers remain in the United States despite processing delays for permanent resident status. In 2000, Congress enacted AC21, which provides for extensions of H-1B status beyond the sixth year, to prevent disruption to U.S. businesses. Without this law, many H-1B workers otherwise would leave the U.S. since they wouldn’t be permitted to work during the long wait for permanent resident status. Work authorization for H-4 spouses likewise incentives high-skilled workers to stay in the United States. Other countries already provide work authorization to spouses. This new regulation for H-4s will help to keep American businesses competitive in a global market for talent.

This regulation is not available to those dependents of H-1Bs who do not meet the requirements listed above. An approved ETA 9089 (permanent labor certification application) or a pending ETA 9089 for more than one year or an approved I-140 Petition for the principal H-1Bs is required for H-4s to become eligible for the benefit of work authorization document (EAD).  

USCIS has estimated that at the high end, 179,600 spouses would be eligible to apply for work authorization in the first year, and 55,000 would be eligible annually in later years. Even if all of the H-4 spouses eligible for work authorization—many of whom also are likely highly educated and highly skilled—entered the work force, they represent only a very small fraction of the overall U.S. work force. Allowing H-4s to work also has strong societal benefits, such as increased family stability, increased community involvement and increased economic contributions.

While this new regulation does not change the need for comprehensive immigration reform, including eliminating—or at least reducing—the backlogs that make these “fixes” necessary, allowing these H-4 spouses to work is a “win-win” for U.S. employers, the U.S. economy and the H-1B/H-4 families that are “in line” waiting to become permanent residents of our country. 
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BRIEF OVERVIEW & FREQUENTLY ASKED QUESTIONS (FAQ) ABOUT TEMPORARY    PROTECTED STATUS (TPS) FOR NEPAL

[The article primarily details the initial designation of TPS for Nepal on June 24, 2015. Readers must be aware of the fact that TPS designation for Nepal has been extended for another 18 months until June 24, 2018. The 60-day re-registration period for TPS starts from October 27, 2016 and ends on December 27, 2016. Qualified applicants who failed to submit initial TPS may be eligible for initial application filing late provided they satisfy both requirements for standard TPS filing and late filing.]


What Is It?

On June 24, 2015, Department of Homeland Security (DHS) granted TPS for Nepal due to the devastating earthquakes that hit Nepal on April 25, 2015 and on May 12, 2015. This is a form of humanitarian immigration relief. TPS establishes a temporary safe haven in the USA for the nationals of a foreign state (or if stateless if person habitually resided in the foreign state). Regardless of their status, legal or illegal, a grant of TPS will allow the nationals of Nepal (and those stateless individuals who habitually resided in Nepal) to remain in the United States for the period of 18 months ending 12/24/2016. It will also allow the TPS recipient to work in the USA and to travel abroad. TPS is generally a protection from removal and also a lawful status, however, it will not cure the preexisting inadmissibility and deportability. It is just a deferred action, means DHS will not remove the person until TPS is valid. Absent unauthorized employment or overstay resulting in inadmissibility, TPS recipient may adjust or change his/her status. Upon approval of TPS status, even if the TPS recipient fails to maintain or opts not to maintain his/her existing nonimmigrant status, the TPS recipient will still be considered being in a lawful status. Applicants who are on any nonimmigrant status are encouraged to file TPS application before the visa expires.
However, TPS itself will not provide a basis for a permanent resident status or green card regardless how long the recipient has been on this status.

What Are The Requirements To Become Eligible For TPS?

1)    Must be a national of Nepal or a stateless person who habitually resided in Nepal prior to entering the United States.
2)    Must have been resided since June 24, 2015. In other words, must establish the continuous residence in the United States.
       In certain circumstances, brief, casual or innocent departure from the United States for less than 90 days will not disrupt the continuous residence.
3)    Must file the application for TPS (Form I-821) on or before December 21, 2015.
4)    Must not have been convicted for Felony or two or more misdemeanors.
5)    Must pass the security checks. 

When Can I Start Filing For It And What Forms Should Be Filed?

There is a 6 month window time to file for TPS registration commencing from June 24, 2015 to December 21, 2015. The application must be received by USCIS on or before December 21, 2015.  Form I-821 must be properly filed with the USCIS. If one wishes to obtain employment authorization document (EAD) and advance parole document, Form I-765 and Form I-131 can be filed with Form I-821. The EAD will be valid for one year and travel document is valid for either one year or for the entire period of TPS. But it is case-by-case and depends on the reasons provided by the applicant.

USCIS fees:
Form I-821    $135,
Form I-765    $380,
Form I-131     $360,

For the applicant under 14 years of age and above 65 years of age, the fees are different. Check www.uscis.gov for fee schedule. Fee waiver can be requested by filing Form I-912.

Application can be filed together or can be filed separately. However, in order to obtain EAD/Advance Parole document, a proof of TPS approval must be presented. Even if an applicant does not wish to apply for EAD, he/she still must fill out and submit an I-765 application but does not need to pay USCIS fee of $380. 

As TPS does not provide “derivative benefits”, each family member must apply independently and must pay separate fees.

What Documents Need To Be Attached To TPS Application?

1) Proof of Nationality: Passport, Nepalese citizenship certificate, birth certificate, Driver’s license, photo IDs, and anything that would establish the nationality or for stateless, last habitually resided in Nepal.

2) Continuous residence:  employment records, rent receipts, taxes, w-2 forms, medical records, birth certificates of children born in USA, bank accounts, utility bills, etc.

3) If arrested, attach a certificate of disposition for each arrest.

In terms of documentations, always more is better, but do not file redundant documents.

If I Leave The USA, Can I Return To USA?

Yes, with a valid advance parole document and a valid passport, one can return to the USA. It will be wise to keep the original TPS approval document handy. Although there is nothing in the regulation that one who departs with advance parole document must leave after TPS is granted, it will be prudent to wait until application for TPS is approved.

Upon My Return To The United States With Advance Parole, Will It Have Any Impact On My Status Or Future Possibility Of Obtaining A Green Card?

It depends. If the TPS recipient has never been out of status or never been unlawfully present in the USA until the time the TPS application was filed with USCIS, his/her return to the USA with advance parole will not have any adverse impact on his/her admissibility. But if the TPS recipient had accrued more than 6 months or more than 1 year of unlawful presence and he/she left with advance parole document and reentered, that person will be subject to 3/10 years of bar. In other words, he/she will be inadmissible for 3 to 10 years for adjustment of status. However, persons who obtained advance parole based on a pending adjustment of status application may not be subject to 3/10 year bar even if he/she accrued more than 6 months or more than 1 year of unlawful presence in the USA. In addition, people who entered the USA without inspection (EWI) may also tend to leave with an advance parole document obtained through TPS and later try to adjust his/her status through various applications. The impact of the reentry into the USA with advance parole varies depending on the particular jurisdiction or the applicant’s place of residence across the USA and also the underlying application they are pursuing in the future. Therefore, it is complex. As such, it is highly recommended that one must consult a competent immigration lawyer before making a decision to depart the USA with an advance parole document.    

If I Have Asylum Application Pending Before Asylum Office, Court/BIA Or An Outstanding Order Of Removal, Can I Apply For TPS? What Will Happen To My Application For Asylum If I Obtain TPS?

Yes, you can. However, in order to travel outside of the United States, you must consult with your attorney since there are some requirements that must be fulfilled prior to departure and also consequences for leaving the USA. Filing for TPS will not have any negative impact on the pending application for asylum. As stated above, however, one must consult with a legal counsel before applying for advance parole. Departing with advance parole might cause an adverse impact on the claim for asylum. As TPS is considered as lawful status, if the application is denied, it is very possible that the asylum office might find the applicant in a lawful status and may conclude the matter as final instead of referring the matter to EOIR or Immigration Court for further proceeding by issuing a Notice to Appear (NTA). In other words, the applicant will not be placed in a removal proceeding. In this case, the applicant may lose a chance to pursue his/her case before an Immigration Court. In the alternative, one may argue that the asylum office should hold the case in abeyance and issue an NTA in a later date when TPS is terminated. However, looking at the past practice and current position of asylum offices, it is very likely it will close the matter marking “Final Denial” if it denies the application for asylum. As such, it is strongly recommended that applicants waiting for an interview for asylum before USCIS or Asylum Office should analyze the merit of their asylum applications and prioritize their future immigration goals prior to filing for TPS.   

If one’s case is pending before an Immigration Court and the applicant has obtained TPS, it is very likely that the DHS will request for administrative closure of the proceeding. However, parties must agree on administrative closure. If the applicant does not agree on administrative closure, then the Court will either proceed with hearing for underlying relief or continue the case for another date. If the Court proceeds with hearing and denies the application for asylum or any other relief then it can enter an order of removal against the applicant. However, any such removal order could not be executed during the period in which the applicant’s TPS status is valid.       

If the applicant is already subject to an order of removal (regardless the matter is now with BIA or Circuit Courts), he/she shall simply obtain TPS and obtain EAD. However, it is not recommended to apply for advance parole as discussed above.

What If I Miss The Deadline To Register For TPS For Nepal?

Everyone is strongly advised to apply for TPS on or before December 21, 2015. If you missed the deadline, there are very few exceptions for late registration for TPS. This will not be discussed in this article as the registration time will not sunset until 12/21/2015.

I Am On Nonimmigrant Status (F-1, M-1, H-1B, L-1). Do I Need To Maintain My Nonimmigrant Status Once I Obtain TPS?

As mentioned above, as long as you are eligible for TPS, anyone (nationals of Nepal or stateless persons who habitually resided in Nepal) can apply for TPS. Even if TPS is a bonus for those who are maintaining nonimmigrant status, nonimmigrants like students and H-1B visa holders must pay attention to the inherent requirement of their respective visas. TPS will not automatically maintain F-1, M-1, L-1 and H-1B or other nonimmigrant visas. TPS recipients must comply with the terms and conditions of their visas. Students must take full-time courses in order to maintain their F-1 or M-1 status, unless they have obtained EAD under the grounds of economic hardships. ESL or Vocational F-1 students also must fulfill their hours of study to maintain F-1 status. H-1B visa holders can obtain EAD through TPS, but in order to maintain H-1B visa status, they must maintain the payroll with the petitioning company. Even if students obtain EAD through TPS, they must inform their DSO of their TPS filing and obtaining EAD since F-1 or M-1 does not allow them to obtain employment outside of the campus. It must be timely reflected in the SEVIS otherwise, SEVIS can be terminated.        

Every case is different. F-1 Students who have issues with continuation of study, timing of graduation and OPT are encouraged to discuss with their DSOs. DSOs are well trained and well informed to handle such issues when a country gets designated for TPS. Currently, Nepal is the twelfth country to receive TPS designation, as such; it is not a new thing for DSOs of colleges and universities.

What If TPS Expires After 18 Months?

The newly granted TPS for Nepal is valid for 18 months. It will sunset on December 24, 2016. DHS may extend the TPS period. If it is extended, then the TPS recipient must re-register for TPS for the extended period. If TPS finally terminates, the TPS individuals will return to the status what they had before the grant of TPS. Depending on the individual visa status, background and situation, in the event TPS expires, TPS recipients can also seek asylum and/or cancellation of removal as a relief from possible removal from the United States or change of status.    

What If My TPS Is Denied By USCIS?

If your TPS application is denied, you can file an appeal from the denial to Administrative Appeals Office (AAO). After the denial, if the applicant is placed in a removal proceeding by an issuance of a charging document or Notice to Appear (NTA), you can still renew your application and ask the Immigration Judge (IJ) to consider the application. The IJ shall review it de novo. In other words, the IJ is not bound by USCIS' or AAO's adverse decision. If the IJ again denies it, then you can file your appeal from the IJ’s decision to Board of Immigration Appeal (BIA) in Falls Church, VA.


(Disclaimer: This FAQ cannot be construed as a legal advice for any particular matter. It is only for information purpose. Everyone is strongly advised to seek a legal advice from a licensed attorney.)
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