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This article is the third in a series in which we are addressing the recent memorandum from ICE on exercising discretion when enforcing immigration law. You can find a copy of the memo here:
http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf
The memorandum instructs ICE personnel to consider how to enforce the law against a foreign national according to ICE priorities. ICE enforces US civil immigration laws based on identified priorities, including national and border security, public safety, and preserving the immigration legal system. However, its resources are limited and should be focused on those individuals who have or who have the potential to do harm to this nation or its citizens and legal guests.
Positive factors are those that ICE should consider to exercise favorable prosecutorial discretion. The factors are tools to help ICE identify when to use positive discretion according to ICE priorities. Furthermore, no factor alone is dispositive, and ICE agents, officers, and attorneys should consider all relevant factors based on the “totality of the circumstances.” Positive factors include:
· Whether the foreign national is a veteran or member of the US army;
· The length of time the foreign national has spent in the US as a legal permanent resident;
· The foreign national’s age (preference given to minors and elderly);
· Whether the foreign national has lived in the US since his or her childhood;
· Whether the foreign national is pregnant or nursing;
· Whether the foreign national is a victim of domestic violence or trafficking;
· Whether the foreign national has a serious health condition or mental or physical disability.
If these kinds of things are applicable to an individual’s case, the encouragement in the memo is for ICE to be judicious about prosecuting a case to the full extent of the law. Doing so takes tremendous resources that may be better used against those who have serious criminal record and other issues, listed below:
· Whether the foreign national presents an apparent risk to national security or public safety;
· Whether the foreign national is a serious felon or gang member;
· The number of immigration violations that foreign national has committed including illegal entries and fraud.
The large number of situations where ICE can exercise prosecutorial discretion and consider positive or negative factors suggests an expectation that ICE provide more precise evaluations that are sensitive to ICE priorities as well as a foreign national’s specific circumstances.
While ICE agents, officials, and attorneys should perform these detailed evaluations on their own, the foreign national may also request that ICE exercise prosecutorial discretion. ICE has asked that we make such requests sparingly so as to not consume too much of ICE’s limited resources with our requests. A favorable exercise of discretion does not itself result in legal status for the individual who has benefited from it, so keep that in mind. It just delays the legal inevitable. If you have been the beneficiary of ICE discretion – congratulations! Now you need to meet with a qualified immigration attorney to best assess what options you have going forward to find a legal way to remain in or return to the US. If you have been arrested by ICE and are waiting for the hearing, you should consult with a qualified attorney to discuss possibly requesting ICE to apply this authority to you.
Garry L. Davis
The ICE Prosecutorial Discretion Memo Part 2
This article is the second in a series in which we are addressing the recent memorandum from ICE on exercising discretion when enforcing immigration law. You can find a copy of the memo here:
http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf
The memorandum instructs ICE personnel to consider how to enforce the law against a foreign national according to the ICE priorities. ICE enforces US civil immigration laws based on identified priorities, including national and border security, public safety, and preserving the immigration legal system. However, its resources are limited and should be focused on those individuals who have or who have the potential to do harm to this nation or its citizens and legal guests.
The memorandum guides ICE personnel to review various factors and conduct an “individualized assessment” of each case before it. As I mentioned in the last article, a college student who is illegally in the US without a criminal record should not be considered as high of an enforcement priority as someone who has a track record of violent crime convictions, in my view. Favorable prosecutorial discretion occurs when ICE does not enforce the “full scope” of the US civil immigration laws against a foreign national. The memorandum presents general situations where ICE can exercise positive discretion:
· Decisions on notices to appear – this is the document that charges an individual with removal or deportation from the US;
· Decisions on notices of detainer – this is the document that requires the detention of a non-US citizen who is in the custody of criminal authorities until ICE has a chance to investigate;
· How to use enforcement resources based on the gravity of the administrative violation;
· Decisions on administrative violations;
· Decisions on detainments, releases, supervisions, etc. (i.e. whether or not to keep a foreign national in detention)
· Decisions on deportations other than through the formal process with the immigration court;
· Negotiations at proceedings about whether to proceed or dismiss a deportation case;
· Decisions on deferred action, parole, or stays of removal orders (legal options that postpone the enforcement of a removal order or otherwise allow someone to enter or remain in the US despite a formal order of deportation);
· Decisions on voluntary departure;
· Pursuit of appeals;
· Execution of a removal order (i.e. whether or not to actually send someone out of the US);
· Responses to motions to reopen removal proceedings and decisions on joining a motion to grant relief.
This list is not exhaustive. It is in these kinds of situations that ICE should consider the foreign national’s personal situation to determine whether or not the full extent of prosecution is appropriate.
Garry L. Davis
I have had lots of clients and friends ask me about the recent Memo that was released by leadership at Immigration and Customs Enforcement relating to those facing deportation from the US. In an effort to educate our audience and to shed some light on what it is and what it isn’t, I will put together several articles over the next few weeks discussing the memo. You can find the memo here:
http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf
The recent memorandum is from John Morton, Director of Immigration and Customs Enforcement (ICE). It is titled, “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens.” It calls for ICE agents, officials, and attorneys to use a more critical analysis when considering how best to use its limited resources to handle its mandate to enforce US immigration law. For example, college students who are illegally in the US without any criminal record probably should be less of an enforcement priority than someone illegally in the US with a string of convictions for violent crimes. The decision about whether or not to prosecute the immigration violator falls under ICE’s discretionary authority.
“Prosecutorial discretion” refers to ICE’s authority to determine the degree to which it will enforce US civil immigration laws against a specific foreign national. The options range from detention to deportation, and to charge or not to charge the individual with immigration violations. The memo recognizes that each foreign national’s individual case is different, and those differences ought to be taken into consideration.
ICE personnel specifically authorized to exercise prosecutorial discretion includes Enforcement and Removal Operations (ERO) officers and agents; Homeland Security Investigations (HSI) officers and agents; ICE attorneys within the Office of the Principal Legal Advisory (OPLA); and the Director, Deputy Director, and senior staff. These individuals can decide whether to detain, charge or place immigration law violators into processing for deportation or not.
Garry L. Davis
You’ve been watching the visa bulletin for your priority date to finally be reported as available and something horrible happens. For months, the report has been moving your category forward – some months by 1 week; others by 2 months. Then all of a sudden, the date GOES BACK or is reported with a big, fat “U” – unavailable. How does that happen? Let me explain.
The Visa Bulletin is a tool used by the US Department of State to regulate the flow of green cards out of the quotas. Picking the dates is an art rather than a science. Those responsible for setting the dates have to balance the mandate that they use all the available visas in a fiscal year and the need to keep their employees busy throughout the year.
The federal fiscal year goes from October 1 to September 30. So, federal fiscal year 2011 is from October 1, 2010 to September 30, 2011. During that time frame, all allocated visas, read green cards, must be used up. Once they are gone for the year in a specific category, that category will be reported as a “U” on the bulletin. That simply means they are all gone for the year. The good news is a new crop of visas will be ripe and ready for picking again on October 1, the start of the new fiscal year.
Those who set the cut off dates have to consider many data inputs in reaching the report date for each category, including how many approved petitions are there with certain priority dates. That will give them some idea about how many applications they should expect to be filed based on those approved petitions. Also, they must consider how many applications are filed and ready for adjudication. The dates they set act as a regulator for the flow of visas out of the quotas. If they go too fast – i.e. too many applications are filed, more than there are available visas – then they must slow down that flow. When that happens, you will see the dates go backwards. The same is also true if there have not been enough applications processed – they will have to move the report date forward to make sure all available visas are used by the end of the year.
Because there can be wild swings, especially from July through September when the fiscal year is coming to a close, it is important to check the bulletin regularly if you are waiting for a visa to come available. When it does, you can know 10-15 days in advance of the report, and you should give us a call. We can advise you when to file, which procedure to follow, and how long it will likely take to process.
Sincerely,
Garry L. Davis
Visa Bulletin
It is rare to find someone who knows what the Visa Bulletin is and rarer still to find someone who knows what it means. One thing I can tell you with certainty is, anyone who claims to be able to predict when a visa is going to be available is lying. No one can. In this article, we will discuss what the visa bulletin is, why it exists and how to read it.
The Visa Bulletin can be found here: http://travel.state.gov/visa/bulletin/bulletin_1360.html. I suggest as we go through this discussion, you click on this site so you can see what I am writing about.
What you will notice first is that the bulletin is published every month, generally 10-15 days before the beginning of the report month. Previous months are archived back to 1995, so if you wanted to review trends, you can go back more than 15 years to see how the numbers cycle. When you go into the report, there is some explanation of how to read the bulletin, and then the report follows. You will notice categories, countries and dates on the report. The categories correspond to the various categories of green card sponsorship – F1 being unmarried sons and daughters of US citizens who are 21 years or older, F2A being spouses and unmarried children under 21 of US residents, etc.
The countries are listed because natives of those nations have some categories that are “oversubscribed.” Natives of no one nation can take more than a set percentage of the total available visas for that category. Also note that the country that applies to you is the one in which you were born, regardless of citizenship. So, if you were born in India even though you are a citizen of Egypt, you will still be subject to the quota for India. The exception to that is “cross-charging,” which allows you to charge to the country of nativity for your spouse. So, even if you were born in China, you can pull from the general list if your wife was born in Nepal.
Sometimes you will see a “C” or “U” on the report. The C stands for current, meaning a visa is available right now. The U means the visas are gone for the year. If there is no U or C, there will be a date. The dates on the report are compared to your “priority date.” The priority date of your case is set based on the date the underlying process was started. For family cases, typically that will be the date the I-130 Petition was filed. For employment cases, it will generally be the date the labor certification or I-140 Petition was filed. That date must be earlier than the date on the report for the category applicable to that petition or labor certification. When that happens, it is time to rock and roll. And that is when we can be a really big help. If you have a current priority date for a petition, give us a call and see what we can do to help you process your case as quickly as possible.
Sincerely,
Garry L. Davis
This article is the next in our series on permanent residence processing. In this article, I will discuss the differences between processing for permanent residence or the “green card” inside the US and outside the US at the US consulate.
Processing for permanent residence in the US is called “Adjustment of Status,” or “AOS” for short. To be eligible for AOS, the general rule is that the applicant must have entered the US through inspection and admission or by parole, some sort of legal process. Immediate relatives – spouses of US citizens, parents of US citizens at least 21 years old and unmarried children of citizens under 21 years old – only have to prove legal entry to file for AOS. In general, overstaying a period of admission or working without authorization does not prevent an immediate relative from filing for AOS.
That is not the case for those individuals who must take a quota from the available visas to become permanent residents. With limited exceptions, a person who requires a quota visa (all employment based categories and eligible family members not immediate relatives) must establish no or very limited (i.e. less than 180 days) amounts of time out of status or employed without authorization. Otherwise the person generally cannot obtain permanent residence inside the US.
The big exception to this is 245(i), which is a section of the law that creates an exception under very limited circumstances. Many people refer to this as Clinton’s Amnesty since it was passed during his second term as President. That law allows for AOS for someone who has a disqualifying amount of time out of status in the US or working without authorization, and for those who entered the US without inspection on payment of $1,000 fine. The law is expired, and therefore does not apply to cases started today. In fact, to qualify, the applicant must have had a petition or some other qualifying application that was approvable, filed on his or her behalf prior to April 30, 2001. Additionally, the applicant must show physical presence in the US prior to December 21, 2000 under some circumstances.
If AOS is not available to an applicant for green card, the person must process at the US consulate generally in his or her home country. This is called “Immigrant Visa” or “IV” processing. Some people call it “Consular Processing” or “AC Processing,” but since the consulates process green cards as well as temporary visas, I prefer “IV processing.” Those who have never been to the US always go through IV processing to obtain permanent residence in the US. If approved, the person receives an Immigrant Visa, which he or she must use to enter the US within 6 months generally. Once the person enters the US, the resident cards are processed and received generally in 2-4 weeks at the address provided in the IV application process.
There are pros and cons to both options. Sometimes it makes more sense for an applicant to seek AC processing even if AOS is arguably available. There have been many cases in which a client has told me other attorneys have said AOS is not available, and we have found a way to make it work. My strong advice is that before deciding which way to go, you must consult with an attorney to get the best advice about which option would be best for the situation.
Each week, I consult with people who ask me why it takes so long to get a green card in certain categories. For the next few weeks, I will provide information about the green card quotas in the US in an effort to clarify this confusing topic. This week’s article will be on the primary categories of green card sponsorship. Next week, I will discuss the difference between obtaining a green card from inside and outside the US. And finally, I will wrap up this series with a discussion of the Visa Bulletin: what it means, how to read it and why it exists.
Those seeking to permanently immigrate to the US have basically four options: family sponsorship, business/employer sponsorship, investment, self-sponsorship and the Diversity Visa Lottery. US citizens and US Lawful Permanent Residents (LPR) can sponsor certain family members to immigrate permanently to the US. US Citizens can sponsor spouses, parents, children (married and single) and siblings. There is no quota for spouses, unmarried children under 21, and parents whose child is a US citizen and at least 21. There generally is an applicable quota for children 21 or older, and there always is a quota for children of any age who are married and for siblings.
A person can be sponsored by his or her business or employer, and there are various categories for doing so. All of these categories have quotas, and depending on the country the person being sponsored is from, the wait will be longer or shorter. Employment Based First Preference (EB1) is for individuals of extraordinary ability in his or her field; outstanding professors and researchers; and multinational managers and executives who are transferred into the US office of an international business. Second Preference (EB2) is for those who are in positions that require a Master’s degree or in some cases a Bachelor’s degree and 5 years of progressively responsible experience. It is also for those individuals whose work is in the National Interest, such as medical researchers. Third Preference (EB3) is for positions that require at least a Bachelor’s degree or 2 years of experience to qualify for the position. Most EB2 and all EB3 positions require processing through the Department of Labor and US Citizenship and Immigration Services to complete processing and obtain LPR status.
Those willing to invest at least $500,000 in a certified economic development center, or $1,000,000 in any other investment in the US economy may seek LPR status in the US. It is called the Employment Creation Visa or EB5.
In some situations, individuals can self petition to immigrate to the US. For example, widows or widowers of US citizens and victims of spousal or child abuse at the hands of a US citizen or LPR spouse or parent can self petition to become LPRs.
Finally, each year, the US Department of State conducts a visa lottery with an eye to the diversification of the immigrant population in the US. Those countries that send the most immigrating individuals to the US do not qualify for the program.
This is not an exhaustive list of options, but does cover the most common. If you believe you qualify for one of these categories, or if you have questions, you should contact us to discuss it at length.
Garry L. Davis
Attorney at Law
If you are an employer, you’ve probably heard that US Immigration and Customs Enforcement is increasing audits of hiring records. See a recent article here: http://thepacker.com/ICE-announces-more-audits-of-hiring-records/Article.aspx?oid=1308497&fid=PACKER-TOP-STORIES&aid=117. Expect these audits to continue as the US population continues to call for more strict enforcement of immigration law in the US.
Immigration and Customs Enforcement, or “ICE,” is the arm of the Department of Homeland Security charged with enforcing immigration law. It is made up of teams of field investigators, detention facilities and officers, deportation officers and other units that enforce all aspects of immigration law. If you receive an audit letter, it is strongly advised that you contact an immigration or employment law attorney to have your paperwork reviewed in advance of the audit. Penalties for violations range from fines to jail time. This is serious business, and such a letter should not be taken lightly.
There is a serious question whether it makes any sense to have employers enforcing immigration law. Most employers are not attorneys. Immigration law is a convoluted and complicated area of law. It still surprises me after more than a decade of practicing exclusively in the area of immigration law that even attorneys who focus on this area still don’t understand it fully. It is very complicated and changes all the time. If attorneys who are professionally trained to understand law in all its forms struggle with this area, how can employers in restaurants, meat processing plants, retail sales, manufacturing facilities, etc. be expected to understand the ins and outs of it? It is, in my view, too much to ask. They should be focusing on their businesses, finding creative ways to be more successful so they can keep growing and hiring – not on trying to determine whether they should believe someone’s claim to be a lawful permanent resident is valid or not. And when you consider that ICE deports around 300 US citizens per year, we can’t expect perfection from employers.
We will explore this question more fully in coming weeks, but in the mean time watch out for those audit letters. ICE has said these will continue, and no business is exempt, regardless of industry, location or size. Watch out!
Garry L. Davis
Attorney at Law
I am frequently asked about Registered Nurses, or RNs, obtaining H-1B visas to work in the US. Surprisingly few people, including attorneys, realize that RN positions as a general rule do not qualify for H-1B. See this memo from November 27, 2002, that clarifies the government’s position on this issue:
http://www.uscis.gov/files/pressrelease/NurseMemo_112702.pdf
For a position to qualify for H-1B, it must be a job that in the industry requires at least a Bachelor’s degree for entry into the position. Most RNs have associates degrees and licensing, but not Bachelor’s degrees. Even if a person has a Bachelor’s degree in Nursing, because in the industry a Bachelor’s is not normally required for an RN, the position is not H-1B eligible.
If the position being offered is not an entry level RN position, it might be H-1B worthy. Some examples are Clinical Nurse Specialists, Nurse Practitioners, Certified Registered Nurse Anesthetists, and Certified Nurse-Midwife positions. I have also seen management level nursing positions qualify as well.
For nationals of Canada and Mexico, there is an alternative. TN visas are available under the North American Free Trade Agreement (NAFTA) for certain jobs in the US. RN is on the list. If you are a national of Canada or Mexico and are offered an RN position in the US, TN will serve to allow you into the US to accept that employment.
Considering the shortage of RNs in the US labor force, it is surprising how few options US employer have for filling those position with foreign labor. Call your Congressmen and Senators and urge them to pass a law that will resolve this issue. They’re all aware of it. They just need to hear from you that you want it. Take action!
Garry L. Davis
Attorney at Law
Being a Texas attorney, I have serious concerns about Governor Rick Perry’s discussion about “Sanctuary Cities” in Texas. He defines a sanctuary city as one that allows illegal immigrants to live there. Law enforcement officers in those cities do not inquire into a person’s immigration status. Governor Perry is targeting so-called sanctuary cities to force them to start enforcing federal immigration law.
This is a recipe for a legal disaster, and Governor Perry needs to reconsider his position. How are law enforcement officers supposed to enforce immigration law? There is no way to look at or listen to someone speak to determine whether or not the person is legally in the US. A person does not have to speak accent-less English to be a US citizen or otherwise legally in the US. A person can be legally in the US with a visa, or as a lawful permanent resident. How does a law enforcement officer make that determination? Most people don’t even know what a visa is, or what status is, how those are different, etc. There is no practical way for local law enforcement to consistently enforce immigration law without discrimination.
Additionally, how does a US citizen prove he or she is a US citizen? When I ask that question, I get several different answers – birth certificate, driver’s license and social security card are the most common answers. But how would a law enforcement officer know that the person carrying a driver’s license is a US citizen or legally in the country? That is not a requirement for obtaining a driver’s license in Texas. A birth certificate, even if it were verifiable as authentic, is not a photo ID. How can the officer know it belongs to the person carrying it? There is no way. A social security card can be anyone’s. It is not a photo ID. The only practical way for a person to prove he or she is a US citizen is by carrying a US passport. It is a photo ID and it is proof of US citizenship.
Is that what this nation is becoming? Do we have to cower from law enforcement in fear, always subject to a demand of “Show me your papers!” Do we want immigrants, legal or otherwise, to be afraid to seek protection from law enforcement? How will someone who is legally in the US on a visa feel about being investigated when reporting a crime? How does that conversation go? “Officer, I was just robbed! Can you help me?” “Well, first what is your immigration status?” “I am here on a visa.” “Can you prove it.” “No, they stole my documents. I was just robbed!” “Sorry, we can’t help you; we’ll have to arrest you and take you to Immigration.” That’s not America. And it certainly should not be Texas.
Garry L. Davis
Attorney at Law