The fee will be use to cover the immigrant visa costs of producing and delivering permanent resident cards. The staff of Rose Immigration Law Firm is aware of the effect that any new fee has on the client we serve.

Important Points to Remember

Starting on February 1, 2013, applicants must pay both the Department of State (DOS) application fee and the USCIS Immigrant Visa Fee, in addition to the existing Department of State.

Rose Immigration Law Firm will assist you in paying the online fee through the USCIS website.

You should notify Rose Immigration Law Firm after you have received your visa package from the consulate and before you depart for the United States. We will then make the payment for you.

http://s3.documentcloud.org/documents/562528/reform0128principlessenatefinal.pdf

In our reading of the proposed legislation, the three most important aspects of the bill include improving the legal immigration system by allowing those already here to regularize their status, reforming the lawful immigration process to incentivize highly skilled and essential skills workers to use a lawful immigration process based on greater availability of visas, and increased enforcement through the use of E-Verify by all U.S. employers, as well as better tracking systems after an individual enters the U.S. 

Be assured that the staff of Rose Immigration Law Firm is monitoring progress on the bill very closely. We will bring you the earliest updates possible so that you can best position your business or family to take advantage of these long-overdue rules once they are put into place.

The new rule will benefit individuals who are married to U.S. citizens or parents of adult U.S. citizens who have been unlawfully present in the United States for six months or more.  Those folks are generally required to leave the country and to apply for a Family Unity waiver to forgive their time without permission as part of the legalization process.  The problem with the old rule is that families were separated for months and even years while waiver applications were pending and subject to long processing times.  The new rule does not remove the requirement for unlawfully present individuals to leave the United States to legalize, but will dramatically reduce the amount of time families are separated.  Under the new rule, the spouse of a U.S. citizen may be able to return home to the United States after only a few weeks abroad. 

The Stateside Provisional Waiver rule will not help everyone.  Only the ground of inadmissibility for unlawful presence can be waived provisionally.  If an individual is subject to an additional ground of inadmissibility, such as for fraud, he or she would have to file a waiver application after leaving the United States and attending an immigrant visa interview.  When grounds of inadmissibility other than unlawful presence are involved, applicants must wait abroad until their waiver applications are decided.  Also, only immediate relative of U.S. citizens can apply, as opposed to the spouses of lawful permanent residents, for example.  Another limitation applies to people who are in removal proceedings or who have a final order of deportation.  Those individuals would need to resolve their removal proceedings first, if possible.

The standard for a waiver of unlawful presence is not changed by the newly finalized rule.  The waiver applicant must show his or her U.S. citizen spouse or adult child would suffer extreme hardship if the applicant has to stay outside the United States for ten whole years.  Hardship can be expressed in terms of medical, psychological or emotional conditions.  Hardship can also be based on the effect the ten-year bar would have on the U.S. citizen’s professional identity, finances, and other family ties, among other factors. 

If you or someone you know is in need of a waiver of the ten-year bar based on unlawful presence, we encourage you to call our office for a consultation.  Our attorneys can screen individuals for eligibility for the provisional waiver and determine the best solution.

When considering DREAMers for open positions, employers should keep in mind that all the normal I-9 rules apply.  You should complete an I-9 (or E-Verify process) for each new hire as usual.  The EAD that DREAMers obtain after their applications for deferred action are approved is one of the documents specifically listed as acceptable to verify identity and work authorization on Form I-9.  This means you are free to hire DREAMers.

Employers should keep in mind that the EADs issued to DREAMers are temporary, lasting for two years.  Re-verification of employment authorization is required under existing law when temporary work authorization is set to expire.  This is the same as for other temporary work authorization, i.e., the spouse of an E-2 investor who has obtained an EAD valid for one year at a time, or an applicant for adjustment of status with an EAD valid for one or two years.

What if your company has a particular need for a long-term employment relationship?  National origin discrimination is prohibited in the I-9 process and even the appearance of treating job applicants differently based on their country of origin should be avoided.  However, employers may still lawfully decline to hire a DREAMer with valid temporary work authorization as long as the employer is motivated to avoid a temporary hire rather than by bias against applicants of a particular national origin.

The Small Business Administration addressed questions about hiring DREAMers to the Department of Justice (DOJ) Office of Special Counsel for Immigration-Related Unfair Employment Practices.  For more information about this topic, see DOJ Special Counsel Seema Nanda’s letter on the DOJ website at http://www.justice.gov/crt/about/osc/pdf/publications/TAletters/FY2012/161.PDF.

If you or someone you know may qualify for DACA, we encourage you to contact our office for a thorough evaluation.  Only an experienced immigration attorney can screen a DACA case for disqualifying factors, explain the relative risks and benefits, and possibly discover a form of immigration relief that is even more advantageous than DACA.

Until further notice, employers should continue using the Form I-9 currently available on the forms section of the USCIS website – www.uscis.gov.  This form should continue to be used even after the expiration date of August 31, 2012 has passed.  USCIS will provide us with updated information on the new version of the Form I-9 as it becomes available.  It is suspected that the new deferred action policy for childhood arrivals has prompted the USCIS to delay updating the form so that the new status can be included.  

The attorneys at Rose Immigration Law Firm will continue to monitor developments in this area closely, and will update you, our valued clients, just as soon as we have more information.

Rose Immigration Law Firm strongly recommends that young people who are considering applying for deferred action first consult with an experienced immigration attorney.  This advice is especially critical for young people who have ever had contact with law enforcement, including as a juvenile, any contact with the various immigration agencies, or who have left the United States after first arriving.  In addition, families with parents who have been deported in the past should carefully consider the consequences of information provided on deferred action applications.  

Some points of eligibility have still not been clarified by the government, but after an August 3, 2012, teleconference, we know more about the requirements of DACA as follows:

• The DREAMer must have entered the United States while under the age of 16.  No exceptions.

• The DREAMer must be at least 15 years old and have been under the age of 31 to apply.  A DREAMer who has not yet reached the age of 15 will satisfy the age criterion once he or she reaches 15.  In other words, the Dreamer who is now only 14 years old can apply for relief once he or she turns 15.  The DREAMer also must be less than 31 years old as of June 15, 2012.  Older DREAMers do not qualify for the benefit.

• The DREAMer must have resided continuously in the U.S. for at least five years prior to June 15, 2012 and have been present in the U.S. on that same date.  Anyone who has departed the United States during the past five years or who is thinking about travelling outside the U.S. soon must consult with an experienced immigration attorney to determine if they remain eligible.    

• The DREAMer must be in school, including a GED program, at the time of applying, or have graduated from high school, have a GED, or be in the armed forces or been honorably discharged from the armed forces.  Because only U.S. citizens or lawful permanent residents are eligible to join the armed forces, in practice, the high school and GED grounds for deferred action eligibility are much more relevant.

• The DREAMer must have a basically clean record.  Specifically, the DREAMer must demonstrate that he or she does not have any felony convictions, any convictions for “serious” misdemeanors, more than two convictions for non-serious misdemeanors, and that he or she is not a public safety or national security threat.  Criminal ineligibility is the area of deferred action for DREAMers that needs clarification most.  While we wait for further details from the government, the following guidance on criminal ineligibility has already been supplied by the Department of Homeland Security:

Felony:  State characterization of criminal offenses will be used.  If a state classifies an offense as a felony such that one year or more of imprisonment is authorized, even if not sentenced in a given case, the conviction will disqualify an applicant.

Serious misdemeanor:  This is a term that obviously can be interpreted in a number of ways, and that was clarified in a recent teleconference with USCIS Director Alejandro Mayorkas.  Significant misdemeanors for DACA purposes include domestic violence, sexual abuse or violence, burglary, unlawful use or possession of firearm, drug distribution or trafficking, driving under the influence – even if no sentence was ordered.  In addition, any offense for which the individual was in fact sentence to time in custody of more than 90 days will be classified as a significant misdemeanor.

Multiple misdemeanors:  If an applicant has three or more non-significant misdemeanor convictions not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, he or she will not qualify for DACA.  Again, disqualification will result even if no imprisonment was ordered.  It is not clear if tickets / convictions for no driver’s license will count as non-serious misdemeanors.  USCIS has not clearly answered this question.

Public safety threat:  This ground of ineligibility has not been fleshed out yet.  It may include juvenile adjudications, connections to gang activity, and dismissed charges. 

National security threat:  This will not be limited to convictions, but we do not know much more than that about how this ground of ineligibility will be interpreted.

The filing process for DACA will involve filing an application for deferred action, using a form that has not yet been released, and an application for work authorization.  All DREAMers who are not in detention will be able to send their applications directly to the immigration service, even if they are in removal proceedings.  Fee waivers will not be available, but fee exemptions will be available in very narrow circumstances.