Obama’s Expanded Deferred Action Plan

The Impact of the US Supreme Court’s Decision on President Obama’s Expanded Deferred Action Plan

Yesterday was a sad day for roughly 4 million undocumented immigrants and their families awaiting the possibility of expanded Deferred Action for Parents of US Citizens/ Lawful Permanent Residents,  and the removal of age restriction requirements for Dream Act applicants.  The US Supreme Court in 4-4 split decision affirmed the lower court ruling in the case of United States v. Texas.  All the US Supreme Court stated in their decision was “the judgment is affirmed by an equally divided court.”

The case of US v. Texas was originally brought by a Republican led coalition from 26 states challenging the authority of the President to use his executive authority related to the announcement of the expanded executive action programs in immigration in November, 2014.

As a result of the Republican efforts, the United States District Court for the Southern District of Texas issued a preliminary injunction on February 16, 2015, preventing President Obama’s expanded immigration program from going into effect.

The case was appealed to the United States District Court of Appeals , Fifth Circuit, who  affirmed the preliminary injunction,   and sent the case back to the trial court level.

Through legal meandering, the case eventually made its way to the US Supreme Court. On January 19, 2016, the US Supreme Court agreed to review the case.  We have now received a ruling six months later.

Essentially, with the Supreme Court not having a replacement for Antonin Scalia, and being split down the middle, the effect of their decision is to keep the preliminary injunction issued by the lower court in place for the time being. By doing so, the expanded DAPA and Dreamers programs are halted and will not go into effect.   The positive side of this issue, is that those who are currently Dreamers and those beneficiaries of the initial executive action programs will not be affected by this ruling.

The Obama administration could still request a rehearing on the ruling, and there are still two other pending court cases that present the same issues as US v Texas.  The current problem is there is still a Supreme Court vacancy that would need to be filled to help break the tie.  It is right now unlikely the US Senate will move forward with any confirmation hearings until the presidential election has passed.

For the time being, if you want immigration reform, then you are encouraged to support those candidates running for public office to stand with the 4 million affected and find a path to give the undocumented immigrants and their families a chance at the American dream.

To discuss your immigration case, please contact us via telephone (954) 522-4058, Spanish (954) 522-1452 or via email at Rapascal@bellsouth.net.. Attorney Robert Pascal.

Law Offices of Robert A. Pascal, P.A.

HOW TO PRESERVE US RESIDENCY

HOW TO PRESERVE US RESIDENCY DURING EXTENDED ABSENCES WITH A RE-ENTRY PERMIT

 

I am regularly asked by my clients who are LPR’s (Lawful Permanent Residents) , how their residency status would be affected if they had to leave the US for a year or longer due to their employment, family or health issues and what they would need to do to protect their permanent residency status. This article will discuss those issues and recommendations to best protect permanent residency status.

First of all, being a lawful permanent resident means you have to physically reside in the USA. You are allowed to travel outside of the US, but need to be aware that residency can be jeopardized in certain situations for absences for six months or longer.

An extended absence from the US for a period of greater than six months but less than a year creates a “rebuttable presumption” that you are intending to abandon your US residency.  This means that you will need to rebut this presumption by providing evidence that you are maintaining a physical US residence, paying your taxes, and additional documentation to show that you have not abandoned your US residence. Also, your US permanent residency may be considered abandoned for absences shorter than one year if you take up residence in another country.

If you are outside of the US for a period of one year or longer then your Permanent Residence card becomes technically invalid.  Not only will it affect the continuous residency requirements in applying for US citizenship, it can result in denial of re-entry into the US unless the LPR holds a valid re-entry permit.

It is strongly recommended that if you anticipate an extended absence from the US for a year or longer, then be proactive and apply for a re-entry permit prior to leaving the US.

We will now discuss the application process for obtaining a re-entry permit. You will need to complete the USCIS form I-131, submit the documentation to substantiate your request, and pay the filing fee of $360.00.  Depending on where you live , you will need to file your application with the designated USCIS service center that has jurisdiction over your state. You need to be physically present in the US when you file this application as it is a requirement.

Following the receipt of the filing, the USCIS will mail you a Notice of Action within 30 days. We recommend that you strictly use a US address either your attorney, family or a friend. Usually, the next correspondence you will receive is an appointment notice for your biometrics. This appointment will be only for the purpose of obtaining your fingerprints, and there is no interview.  If you have left the US after filing your I-130, you can return for your biometrics appointment. We recommend not trying to reschedule the biometrics appointment as failure to complete the biometrics within 120 days will result in denial of your application.

After the biometrics have been taken, then the USCIS will review the application and determine whether you submitted appropriate documentation to justify the application or whether additional documentation is required.  If there is an issue, the USCIS will issue a yellow letter called a Request for Evidence. This letter will details what additional information or documentation is needed by the service. Usually you will be given two or three months to respond. If you do not respond within the time specified or fail to produce the requested evidence, the application will be denied.

Following the biometrics, If everything was deemed sufficient without a request for evidence,  you should expect a decision within 8-12 weeks.  If approved, you can designate which US consulate, US embassy or foreign USCIS  office, you would like the re-entry card sent to by the USCIS.

The re-entry card is valid for a period of two years, and can be renewed again for an additional two years. You will need to carry it with you each time you re-enter the US during the period of your extended absence or your eventual return to the US after a year.

Disclaimer:  This article is only intended as general guidance and is not deemed to be any form of legal advice by Robert A. Pascal, P.A. Any reader or interested applicant should consult with an experienced immigration attorney before attempting to file this document on their own as each case and facts are different.  

 

May, 2016

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PREPARING FOR YOUR US CITIZENSHIP INTERVIEW

After preparing and filing my client’s N-400 applications for US citizenship, I am then asked what they should do to prepare for the actual citizenship interview. I actually spend a couple of hours with each of my client’s before the actual interview and conduct an intensive practice session to identify their strengths and weaknesses. Although every client is different, I am going to give you a general set of guidelines to help you prepare. These are as follows:

1. Get to the Service center at least 30 minutes before your scheduled interview. The last thing you need aside from the nervousness you may feel is to be running late to the interview. Take a test drive by the Service center before the day of the interview so you exactly know where it is and the time it will take for you to arrive there.
2. Do not forget to bring any original documents along with a copy for the USCIS Officer. At the minimum this will require bringing your state issued identification, permanent residence card and passport. If you have a criminal record, then bring certified copies of the arrest report and criminal conviction.
3. Dress appropriately. A jacket and tie or a formal gown isn’t necessary, but neither is a t-shirt and blue jeans. Dress as you would for a job interview.
4. Answer the Officer respectfully. A Maam or Sir goes a long way in deferring to the authority the USCIS Officer who has in the ultimate outcome of your application.
5. Go to the USCIS website and download the civics and English test questions about a month before the interview. The civics book has one hundred questions and answers of which you will be asked five from the book. Usually the book gives you a few correct answers for a question, you usually need to know only one, but read each question and answer carefully.
6. The English portion is your ability to understand and respond accordingly to the questions that will be asked of you during the interview. You may be asked to write out a sentence in English and to respond to additional questions by the USCIS Officer. If you a not extremely proficient in the English language, and do not qualify for an exemption from the language requirement, then it is important to hone your English skills from the moment you submit your N-400 application. There are many free ESOL language courses offered across the USA as well as free internet courses available. If you speak your native language in your household, try to only speak English and watch English television shows.
7. Take a deep breath and relax before you go into the interview room. If for any reason you are not proficient with the language, civics or English requirements, you will usually be scheduled for an additional interview within 90 days to try again.
8. If you pass, you will then be given a notification that you passed the interview and that you will be scheduled for the next swearing in ceremony to formally become a US Citizen. This is usually within three weeks from your interview date.
9. If you do have an issue related to a criminal conviction or lengthy overstay over 6 months out of the US, please retain an Immigration Attorney to attend the interview with you.

OBAMA’S EXECUTIVE ACTION ON IMMIGRATION

A SIMPLIFIED EXPLANATION

This morning I walked into the office and was handed a stack of phone messages from prospective clients calling in regard to President Obama’s Executive Action on Immigration that was announced last night.
Although it will temporarily help 5 million undocumented immigrants, it is not the comprehensive solution that currently lies dormant in Congress and specifically the House of Representatives.
This Executive action is not Amnesty, and does not grant any legal residency or a pathway to citizenship. It only grants the applicant the ability to obtain a work authorization, driver’s license, and remain free from deportation for a period of three years. It could be renewed for an additional three years through additional executive action. As I explain to my client’s, you will neither be in heaven or hell, but will walk in a state of legal limbo. Most likely these applicants will be given priority in applying for any amnesty plan that is passed by Congress in the future.
Although there are many facets to this plan, I am going to explain the two primary groups that will benefit from this Executive order.
The First group will be Parents of Legal Permanent Residents or United States Citizens. The program will be called Deferred Action For Parents (DAP) and has the following requirements:
1. You are the parent of a child that is a United States Citizen or Legal Permanent resident;
2. You have been in the United States prior to January 1, 2010;
3. You have not been convicted of a crime

The Second group will encompass an expansion of the current (DACA) Deferred Action For Child Arrivals better known as “DREAMERS. This program will maintain many of the same requirements as DACA, including:
1. Proof the applicant entered the US prior to their 16th birthday;
2. The arrival was prior to January 1, 2010;
3. There has been no criminal conviction;
As to the requirement of having attained a GED or HS diploma, we will need to await the finalized rules as these will be promulgated by the USCIS.
Right now, it is expected to take at least six months until the USCIS will be able to accept applications under this new Executive Order. The most important component to these applications will be documentation, and the sooner you can get started in compiling this documentation, the sooner your application be submitted when the program begins accepting applications.

I am encouraging my current and prospective clients to call and schedule a consultation so that we can review your personal details and advise you as to the documentation you will need to compile for the application.

Tel: (954) 522-4058:

E-2 TREATY INVESTORS – A VIABLE ALTERNATIVE TO PERMANENT RESIDENCY

An E-2 treaty investor visa is a nonimmigrant visa which allows foreign entrepreneurs from treaty nations to enter into the United States and participate in substantial trade. This E-2 visa basically allows business owners, managers and employees to remain in the US for extended periods of time to oversee their investment or enterprise. The visa is renewable every two years and there is no restriction as to the number of times the visa can be renewed. To qualify, the foreign national must be from a country that holds a bilateral investment treaty with the United States. All the EU nations, including the United Kingdom, along with the Scandinavian countries qualify. Select countries from Latin America, Africa, Eastern Europe and the Middle East also have eligibility. You will need to check with an immigration attorney or the US Department of Homeland Security to see if you are from a qualifying country.

The purpose of the operations of the trade can also be to develop and direct the operations of an enterprise in which the alien has invested, or is in the process of investing under the provision of the Immigration and Nationality Act. The investment activities include the purchase of a new business, of which the investment must be significant to ensure the successful operation of the enterprise and should be proportional to the total investment. The investment should be more than half the total value of the enterprise or, in the case of a new business, the investment amount should be sufficient to ensure the successful operation of the enterprise. There are certain amounts of capital investment and the percentage of ownership the USCIS will use to determine if the investment does meet the “substantial” threshold. Please consult with an immigration attorney to see if you meet those guidelines.

As a general basis, the alien applying for the visa should be serving the company in a supervisory or executive capacity in nature that involves skills which is essential to the operation of the business, in other words, the alien should be a key employee, or owns at least 50% of the company.

The percentage of ownership is increased where there is a low cost business enterprise. In these situations, the capital investment and ownership must be higher than the percentage of investment in a high cost-enterprise; this is to ensure that the investment is substantial.
The alien’s investment must be a real operating enterprise; applicant will not qualify with speculative or idle investment, just the same uncommitted funds in a bank account or similar security are also not considered an investment.

The investment made should not be marginal, the investment should have the capacity to generate a significant amount of income; more than the amount needed to provide everyday living expenses for the investor and his family, and in other words it should have a significant economic impact in the United States. The investor must be in control of the funds, the funds should not be one that is secured by the assets of the enterprise.
The E-2 investor does not require a specific amount of employees, but cannot be just a marginal investment either. In most circumstances, 2-3 employees are sufficient to meet this threshold. Other positive aspects to this visa are that a spouse can receive employment authorization, and minor children can attend public schools.

Applicants applying for the E-2 Investor visa would need to make an application at the U.S. Embassy Consulate that has jurisdiction over their place of permanent place of residence. Applicant can also apply at any U.S. Consulate abroad, however it may be more difficult to qualify outside of one’s permanent residence. An interview at the United States Consular office where application was made is required as part of the application process for applicants 14 and 79 years of age; however, applicants age 3 and younger as well as applicants age 80 and older are not required to do an interview unless requested by the consulate office. Each applicant applying for an E-2 investment visa should complete and print the following forms; online Nonimmigrant Visa Electronic Application Form DS-160, Nonimmigrant Treaty/Trader Investor Application Form DS-156E, a passport valid for travel to the United States with a validity date of at least 6 months and beyond the applicant’s intended period of say within the United States, unless country specific agreements provided exemptions. If more than one person is included in the passport each form must complete a copy of each the applications. Along with the completed application forms each applicant is also required to submit 1 (2×2) color photograph. The application cost or each applicant is $390.00, all U.S. Immigration fees are quoted in U.S. Dollars.

An applicant applying for a Treaty Investor (E-2) visa must first establish that the investment enterprise meets the requirement of the law, and complies with the requirements of the E visa classification. Special forms may be required by the Consular Officer for the sole purpose of establishing adequate eligibility, as well as requesting additional documentation which may also assist them to determine eligibility. It is not possible to specify the exact documentation needed by the Consulate as each circumstance varies by applicant.

Applicants please remember that attempting to obtain a visa by the willful misrepresentation of a material fact or fraud may result in permanent refusal of a visa or denial of entry into the United States.

There are certain activities which may result in being ineligible for a U.S. visa. However, in some instances an applicant who is ineligible, but is properly classified for a certain type of visa, may apply for a waiver of ineligibility and be issued a visa if and when the waiver is approved. If the Consular Officer should find it necessary to refuse an applicant the issuance a visa, the applicant may make a new application if there is new evidence to overcome the denial. In the absence of new evidence Consular Officers are not obliged to re-examine such cases.

Spouses and unmarried children under the age of 21, regardless of nationality may receive derivative E visas to accompany the principal visa holder. The spouse of an E visa holder may apply to the Department of Homeland Security for employment authorization, however, dependents children are not authorized to work in the United States. Please see website for list of treaty countries for review, americanlaw.com/treatylist.

If you are considering applying for this type of visa, it is highly recommended to hire a skilled immigration attorney to assist in the preparation of these petitions.

This article was written by the assistance of the following websites
Americanlaw.com/treatylist, Retrieved on March 29, 2011 Travel.state.gov/visa/temp/types/types, Retrieved on March 30, 2011

A BASIC OVERVIEW OF AN EB-5 INVESTOR VISA

This article provides basic information related to an EB-5 Investor visa and its benefits. For those investors with $500,000.00 US to $1,000,000.00 US, they may be able to obtain Permanent Residency in the US in less than three years.
There are two monetary investment options for the investor. For those individuals willing to invest in an area defined by the USCIS as a “targeted employment area”, the required investment is $500,000.00 US. A “targeted employment area” is an area that, at the time of investment, is a rural area or an area experiencing unemployment of at least 150 percent of the national average rate. This can also include a rural area outside a metropolitan statistical area (as designated by the Office of Management and Budget) or outside the boundary of any city or town having a population of 20,000 or more according to the decennial census. Individuals can also seek a “TEA” designation if not already defined by the USCIS. For all others investing outside a “TEA” defined zone, the required investment will be a minimum of $1,000,000.00 US.
In addition to the monetary investment, there must also be the creation of a minimum of ten full time employees for the business. They can be either US citizens or US permanent residents, but not family members. The USCIS will verify these ten employees are being maintained by the company before final approval of the complete green card.
The next consideration of the investor is whether they will desire to be directly or indirectly involved in their investment. If they are going to open a business on their own, they will require hiring a professional business planner to develop and assist with document submissions to the USCIS. Expect to pay $7000.00 for these support services. In addition, this individual will be working full time to oversee the business and its employees.
For those individuals who do not want to be directly involved in their investment, they can invest their monies in USCIS EB-5 approved Regional Investment Centers. These center offer various projects the monies can be invested in, including “TEA” projects and assist with providing documentation to the USCIS. An attorney cannot select or recommend a particular project to invest in, as it is the investors duty to conduct their own fiduciary research. The investor needs to be diligent to select a sound project as the total investment monies could be lost, or the project fails to attain required employment goals or profitability, thereby resulting in the failure to obtain permanent residency.
When an individual has selected an appropriate investment, the attorney assists with the preparation of the USCIS petitions. The investor ,within six months , receives a conditional green card valid for two years. Prior to the expiration of the two years, documentation evidencing the continued employment of the ten employees and financial viability of the investment are examined. If all conditions have been met, the investor is then given complete US residency.

Same-Sex Marriages and Permanent Residency

With the recent changes in Federal law, same-sex couples who are legally married in a state that allows same sex marriages, an american national can now apply for permanent residency for their foreign national spouse.

These changes resulted this past June, when The Defense of Marriage Act was ruled unconstitutional by the United States Supreme Court. As a result the following directive was issued:

Statement from Secretary of Homeland Security Janet Napolitano on July 1, 2013:

“After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”

   The significance of this language is that same-sex couples can now apply for the same immigration benefits as any heterosexual couple. This includes petitions for permanent residency for same sex couples that are legally married in any of the states that allow same sex marriages even if it is not the same state of residency as the applicants. It even includes petitioning for a Fiance visa for same sex couples, and can include their children.

This change in federal law has now vastly changed the landscape and opportunites for same sex couples, and our office is on the frontline in filing as many of these petitions to begin securing those rights.  Please realize these now rules are not an exception, but the norm. Please contact our office for a complimentary phone consultation to discus your case.

I-751 After Divorce

Divorce. A sad tale unto itself, but for those petitioners that were granted conditional residency based on their marriage to a US citizen, it can become an even greater nightmare.

A common situation I see is that a petitioner divorces within the two years of becoming a conditional resident. They can no longer rely on their spouse to file the I-751 for them, so can they file it themself?

The answer is yes. The real devil is in the details. The USCIS will raise red flags and will place the self-petitioner under increased scrutiny believing the marriage was not bona fide. How do you handle this matter?

Your best bet is not to try to prepare the petition on your own. An expereinced immigration attorney can help you provide the proper documentation to the USCIS to at least have them schedule you for an interview and not outright deny your petition or send you a laundry list of items in a Request For Evidence that you could not properly answer.

If you do not take the time to properly prepare and present your I-751 petition packet to the USCIS, you may find yourself in Immigration Court having to defend yourself in removal proceedings back to your home country.

UNLAWFUL PRESENCE WAIVERS BEGIN MARCH 4TH

After a year of waiting, the USCIS has finally set a start date for applicants who illegally entered the US to apply for unlawful presence waivers based upon their family relationship as the Spouse of a US Citizen , a Parent of a US Citizen (child over the age of 21) and a Minor Child of a US Citizen.

The importance of this new program is that the applicant can remain in the United States and await the ruling on the I-601 waiver which is based upon the grounds of extreme emotional harship to the US relative if they were separated for an extended period of time.  Essentailly, illegally entering the US results in a bar to admission.  Once granted, the applicant would still have to return to their home country for a visa interview at the embassy, but they would have the approved waiver in hand to allow them to re-enter the US.

It is important to remember there could be other factors that could impact admissibility, such as a criminal conviction, which they waiver would not cover. But if the only issue was the illegal entry into the US, the waiver allows the re-entry into the US where the subsequent petition to adjust to permanent residency can be filed and adjudicated at a local USCIS office.

Any person considering applying for this program should retain an immigration attorney to assist with the preparation of the waiver. Do not attempt to hire a notario or do it yourself. There are specific documents and legal arguments that need to be included in the waiver packet for you to have the greatest chance of success. 

What is an “immediate relative” for immigration purposes?

For my clients that are US citizens,  I have been asked who are “immediate relatives” for immigration purposes and why that is an important classification.

Sec 201 of the INA states that the following immediate relatives can be applied for by a US citizen, without having to wait for a visa number to become available. These “immediate relatives” can be :

1. Spouses of U.S. Citizens;

2. Children under the age of 21 of U.S. Citizens;

3. Parents of US citizens; and

4. Spouses of deceased US citizens that were married at least two years.

By fitting into this category the immediate relative bypasses the wait times for visa’s that would be required.  Please feel free to contact my office if you are a US citizen and wish to apply for an immediate relative.