Election Issues and Immigration #10: Immigration at the Vice Presidential Debate

INTRODUCTION: OVERVIEW OF THE DEBATE

While the first Presidential debate between Hillary Clinton and Donald Trump produced nothing of substance on immigration issues [see blog], the Vice Presidential debate between the Democratic nominee for Vice President, U.S. Senator Tim Kaine of Virginia [see blog], and his Republican counterpart, Governor Mike Pence of Indiana [see blog], produced an interesting exchange on immigration that I will cover in this blog.

Before parsing the debate's major immigration exchange, I will offer my opinion that Mike Pence emerged from the debate as the winner. In this porta-potty fire of an election season [see blog], it was heartening to see someone make a measured and coherent case for bedrock conservative principles before a national audience for 90 minutes. I will certainly grant that Pence often looked ridiculous in denying that Trump had said things that he plainly said in front of a camera. However, Pence had the difficult choice of either spending the debate endeavoring to defend every one of Trump's often strange utterances, or focusing his attention on making a compelling case for conservative ideas and forcing Kaine to account for the dangerously misguided policies that his ticket is advocating. Pence chose the latter path, and he chose correctly.

On a non-immigration note, Pence deserves special credit for making a solid case against the Iran nuclear deal, and challenging Kaine's absurd suggestion that it has ended the nuclear ambitions of the world's leading state sponsor of terrorism. It was also good to see Pence highlight Kaine's inexcusable decision to boycott Israeli Prime Minister Benjamin Netanyahu's speech against the Iran Nuclear Deal before a joint session of Congress in 2015. Had Pence not done so, it is likely many voters would have never known that Clinton picked a running mate who put defending the hurt feelings of the administration over showing respect for the leader of America's foremost ally and hearing an important case against a dangerous agreement.

EXCHANGE ON IMMIGRATION

In the following sections, I will examine the candidate's exchanges on a variety of immigration issues, sorted by categories.[1] Please follow the links I provide to read about my thoughts on the subjects more in-depth.

ENFORCEMENT AND REFORM

The exchange on immigration began when the moderator, Elaine Quijano, asked Mike Pence what he would tell the millions of undocumented immigrants who have not committed violent crimes. The clear implication in the question regarded Trump's statements that he would seek to deport every person who is in the United States without authorization.

Pence began his answer by attacking Clinton and Kaine for advocating policies such as “open borders, amnesty, catch and release, and sanctuary cities.” To this effect, Pence is correct that the Clinton-Kaine ticket proposes policies that would not be conducive to the effective enforcement of our immigration laws. However, Pence then erred in making the central point of his argument against the immigration policies of Clinton-Kaine that they are “driving down wages.” The evidence that lax immigration policies drive down wages, in general, is sparse. While it certainly may be the case in certain sectors of the economy, the main reason for having a coherent system of immigration laws is to (1) encourage people who can benefit the United States economy and society to immigrate; and (2) protect the security and interests of the United States. While ensuring that immigration does not harm the American workforce is a priority, Pence painted with too broad of a brush, centering his argument too much on one point out of many.

Pence then pivoted to offering generic platitudes in defense of Trump's immigration policies. Pence described Trump's immigration speech in Arizona as laying out a plan “that will systemically deal with illegal immigration, beginning with border security, internal enforcement.” As I explained in my blog about the speech [see blog], the best that can be said of it is that it was an improvement over some of Trump's earlier and even more inconsistent “proposals” [see blog]. Pence claimed that Trump would prioritize the deportation of criminal aliens and those who have overstayed their visas, but the truth is that it is not entirely clear whether Trump thinks that we should have enforcement priorities or what they would actually be (he has stated that we should have enforcement priorities but has also stated that we should target everyone who is here illegally, seemingly without prioritization).

Kaine stated that he and Clinton “believe in comprehensive immigration reform.” In an interesting point, Kaine listed the goals of this “comprehensive immigration reform” advocated by the Democratic ticket:

1. Keep families together;
2. Focus enforcement on those who are violent;
3. “Do more border control”; and
4. Provide a path to citizenship for those “who work hard, pay taxes, and play by the rules and take criminal background record checks.”

I discuss the follies of the Clinton-Kaine approach in my blog regarding how to handle those who are currently in the United States illegally [see blog]. The issue is that while some of the goals of their comprehensive immigration reform sound appealing, enforcement is far less of a priority than Kaine allows in the second and third points. The top priority for Clinton-Kaine is to create a legalization program with guaranteed benefits for many who are here illegally. Pence called Kaine on this point when he alleged that the main thrust of calls for “comprehensive immigration reform” in Washington DC is often to create provisions for “amnesty.” For Clinton-Kaine, enforcement is a secondary priority, and they intend to ask Congress to pass new enforcement legislation that is not guaranteed to yield results in conjunction with a legalization program that cannot be reversed once it takes effect. In my blog, I use the example of the ill-fated 1986 comprehensive immigration reform law, which included a legalization program along with new enforcement measures, to explain why we must prioritize enforcement and improvements to the immigration first and legalization only after we see positive results on the first two points. Interestingly, Kaine specifically defended his ticket's proposal by stating that, “Our plan is like Ronald Reagan's plan from 1986.” President Reagan was one of our country's great Presidents, and in most cases, having a proposal that mirrors one of Reagan's is a credit to the proposal. However, Reagan was no more correct on every decision than any other great President was. With regard to comprehensive immigration reform, we should endeavor to learn from President Reagan's undoubtedly well-intentioned mistake rather than to repeat it.

BIRTHRIGHT CITIZENSHIP

While Kaine's calls for comprehensive immigration reform fell flat, he did land an effective attack on the Trump-Pence ticket when he highlighted their support for ending birthright citizenship. I have explained on site that the Constitution clearly provides for birthright citizenship, and that this is not something that we should change [see blog]. On birthright citizenship, my views align with Clinton-Kaine. However, Kaine undercut his own point by suggesting that Trump would deport people who are born to “undocumented” parents in addition to everyone who are actually here illegally. While the Trump-Pence opinion on birthright citizenship is misguided, I explained in my blog why there is no conceivable scenario under which they would be able to change the law on that issue.

DEPORTATION PRIORITIES

When pressed on Trump's statements that he would create a deportation force to deport every person who is here illegally, Pence opted to deny that Trump had ever said such a thing. This is certainly not true, as Trump has at times, even in his recent major immigration speech, advocated for an ill-defined deportation force. Pence was perhaps even less effective when he tried to answer Kaine's question regarding the disposition of those who are here illegally who do not leave the United States voluntarily. First, Pence referenced a wall “beneath the ground and in the air.” It cannot be said enough that the proposals for a “wall” are impractical financially and logistically. This so-called “proposal” is nothing than empty rhetoric taking the place of coherent enforcement ideas. Pence then focused on enforcement as a way to protect the American population from criminal aliens. While this is important, the importance of immigration enforcement extends well beyond those who commit crimes, although they should certainly be the highest enforcement priorities.

TRUMP'S STATEMENTS

After this exchange, Kaine attacked Trump's specific characterizations of Mexicans as “rapists and criminals,” as well as Trump's indefensible attacks against an American-born Mexican-American judge. The irony of Trump's broad outrageous statements on Mexicans and Mexican-Americans is that while they endear him to many of his core supporters, they likely have the effect of shifting the overall national mood on immigration to the left. Fortunately for Pence, he was not afforded the opportunity to deny that Trump had said what Kaine accurately quoted him on.

REFUGEES AND “EXTREME VETTING”

Pence was asked by the moderator to explain Trump's plan for the “extreme vetting of immigrants from parts of the world that export terrorism,” specifically on how his ticket would have prevented some of the recent Islamist terrorist attacks that were committed by U.S. citizens.

Pence stated that Trump is for “extreme vetting” to ensure that we do not allow people into the country who are “hostile to our bill of rights freedoms” and “to the American way of life.” As I explained in a post on Europe and refugees, it is important to vet applicants for immigration status for views and tendencies that are hostile to the United States. However, while the concept makes sense, we have no idea how Trump would seek to implement it (Trump probably does not either). It is one thing to recognize the danger of inadvertently admitting people who pose a threat, but another to come up with a reasonable and effective screening strategy. Pence stated the ticket's support for suspending the Syrian refugee program and certain programs from areas that “have been compromised by terrorism.” I agree on both counts. The Syrian refugee program poses a distinct risk because of our inadequate vetting procedures and the unique dangers posed by Islamist groups in that country. With regard to other countries that “have been compromised by terrorism,” it is important to remember that no foreigner has a right to enter the United States. The first priority of our immigration system must be security. Accordingly, we must be willing to recognize when the security situation in a given country poses a unique threat that may be beyond the capabilities of our immigration system to account for.

Kaine responded by attacking Pence on refugees, and stating that he and Clinton would not vet refugees “based on discriminating against you from the country you came from or the religion that you come from.” Kaine conflates considering all relevant factors with “discrimination,” clearly meaning the latter term in an insidious way. Just as Trump was absurd in calling for a blanket ban on any Muslims from immigrating, Kaine is ridiculous in saying that factors such as religion and national origin can never be considered in immigration matters. It is beyond dispute that our limited resources are heavily taxed by endeavoring to properly vet Syrian refugees and other applicants for immigration status from Syria and other countries with serious security concerns. If someone's interpretation of his or her religion suggests that the U.S. Constitution should be superseded by religious law, by force or other means, this seems to me to be a relevant consideration in determining whether this person should obtain the benefits of immigration status in the United States. To say we cannot consider the conditions in a country from which an applicant for immigration status is coming from is nothing short of willful blindness [see blog]. Furthermore, as I explained in a blog, both religion is a statutory consideration for refugee admissions. Therefore, in the literal sense, it is simply not true that a President Clinton would never “discriminate” on the basis of religion [see blog].

CONCLUSION

While Pence had a strong debate overall, it is hard to come out at all reassured about what Donald Trump would do regarding immigration if elected. The exchanges on immigration did a far better job of exposing the weaknesses of both tickets on immigration than their strengths. Pence did little to resolve the myriad inconsistencies and outrageous statements on immigration that Trump has made. For his part, Kaine flaunted his ticket's lack of interest in immigration enforcement and was inappropriately blithe about the particular risks presented in accepting admitting aliens from Syria and other countries that pose unique security risks. Nevertheless, it was heartening to see the candidates discuss immigration to the extent that they did in the debate.

To read more about my analysis of immigration issues in the election, please see my series of blog posts [see blog].

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. Politico Staff, “Full Transcript: 2016 vice presidential debate,” politica.com, Oct. 5, 2016 (for the debate transcript)

Lawyer website: http://myattorneyusa.com

Election Issues and Immigration #9: Supreme Court Denies Petition for Rehearing in DAPA Case

INTRODUCTION: SUPREME COURT DENIES PETITION FOR REHEARING IN U.S. V. TEXAS

The highest profile immigration litigation over the past few years concerned President Obama's Deferred Action for Parents of Americans (DAPA) program. After a federal district court's preliminary injunction against the implementation of the DAPA program [PDF version] was upheld by the United States Court of Appeals for the Fifth Circuit [see article; decision], the federal government was granted a hearing by the Supreme Court [see article]. However, rather than finally resolving the issue, the Supreme Court deadlocked at 4-4, thereby affirming the judgment of the Fifth Circuit and upholding the preliminary injunction without setting any new precedent [see article; decision]. Subsequent to this adverse result, the federal government petitioned the Supreme Court for a rehearing, with the hope that the Court would take the case up again when it had nine members [see article]. However, on October 3, 2016, the Supreme Court denied the petition for rehearing without comment, thus finally returning the proceedings to the United States District Court for the Southern District of Texas, where they began.

WHY DID THIS HAPPEN?

Because the Supreme Court denied the petition for rehearing without comment, it is impossible to be sure of the exact reasoning. A minimum of four Justices is needed to grant a petition for rehearing, but we have no knowledge of which Justices, if any, favored granting the petition.

In general, it is uncommon for the Supreme Court to grant petitions for rehearing. Speculating on the instant case, the fact that the Supreme Court remains with only eight members was likely a factor in the decision. Had President Obama's nominee to the Supreme Court, Judge Merrick Garland of the D.C. Circuit, been confirmed in the interim, the requisite number of Supreme Court justices may have had reason to grant the petition for rehearing. However, being that the Court is still comprised of the same eight members who initially split 4-4 on the case, it would have been unlikely that granting rehearing would have yielded a different result.

WHAT DOES THIS MEAN GOING FORWARD?

The Supreme Court's decision to deny the petition for rehearing sends the case fully back to District Court. We may now expect Judge Andrew Hanen, who had issued the preliminary injunction, to move toward issuing a final decision regarding whether to make the temporary injunction against the implementation of DAPA permanent. Although there is no guarantee that Judge Hanen will make a final ruling against the implementation of DAPA, the tenor of proceedings in conjunction with his lengthy decision in implementing the preliminary injunction would lead most observers to conjecture that it is far more likely than not that Judge Hanen will rule against the federal government. Regardless of Judge Hanen's decision, the losing side will be able to appeal to the Fifth Circuit and, ultimately, to the Supreme Court.

Although President Obama will likely no longer be in office well before the issue is finally resolved, the litigation will continue to bear watching going forward. I discussed what is at stake regarding the DACA and DAPA litigation in my first blog post in my series of posts about immigration and the November elections [see blog]. Because Hillary Clinton not only supports DAPA but pledges to dramatically expand it, the her administration would likely continue arguing in federal court that the program should be implemented. However, it is worth noting that she would also have the option of endeavoring to work with Congress to reach an outcome that would meet her objectives. For his part, Donald Trump has stated that he would repeal both DACA and DAPA. This means that if Trump were to be sworn in, the federal government would likely stop pursuing the litigation in defense of the programs.

It is important to note that the final resolution of the DAPA case will have far greater implications than just on the fate of one immigration program. As I discussed in my earlier writings about the litigation, the case implicates both administrative procedure law and the extent of the President's discretionary authority under the Immigration and Nationality Act (INA). Furthermore, the Supreme Court had asked for briefing on whether the DAPA guidance violates the Take Care Clause of Article II, Section 3, of the United States Constitution the President must take care that the laws are faithfully executed). Although neither the District Court nor the Fifth Circuit addressed this third issue, it may yet be litigated in these proceedings.

REACTIONS FROM BOTH SIDES

The Supreme Court's decision triggered reactions from all sides of the spectrum on the DAPA issue.

The American Immigration Lawyers Association — which is strongly in favor of President Obama's exercises of executive authority — announced its disappointment with the decision. AILA Executive Director Benjamin Johnson [see blog] stated that “the long wait continues for millions of families and thousands of communities and businesses around the country that have been seeking relief from the dysfunction and injustice caused by our outdated and inhumane immigration laws.” AILA President William A. Stock also focused on the legal aspects of the issue, stating his hope that when the case eventually returns to the Supreme Court it can “show appropriate deference to the executive branch and not legislate from the bench by enjoining this program permanently.”[1]

However, the Attorney General of Texas, Ken Paxton, took a very different view of executive power than did the AILA President. Paxton stated that”[t]his is the latest setback to the president's attempt to expand executive power and another victory for those who believe in the Constitution's separation of powers and the rule of law.”[2] Noted conservative blogger Ed Morrissey wrote at Hot Air that “[h]ad Obama worked in more good faith on this issue rather than leveraging it for cheap demagoguery, he might have found a compromise with Congress.”[3]

MY REACTION

In my posts about DAPA, I have explained why I think President Obama's approach has been in error. The administration showed acute disregard for procedural regularity, the restraints on executive authority in the INA and, arguably, for the President's duty to enforce the immigration laws. Furthermore, President Obama poisoned the well only to implement a program that would neither advance the cause of immigration enforcement nor give permanent relief to its beneficiaries. Although I would have preferred the Supreme Court to have issued a definitive ruling against the initiative, we were likely precluded from such an outcome upon the death of former Justice Antonin Scalia [see blog]. Nevertheless, I think that we can consider the Supreme Court ultimately sending it back to the lower courts for further litigation to be a favorable outcome. It is my hope that the next President, whether it is Clinton or Trump, will seek to work with Congress to implement an immigration program that will, first, prioritize enforcement and, second, devise an appropriate and permanent solution for the people who would have otherwise benefited from DAPA.

READ MORE

To learn more about current immigration effects and the November elections, please see my introductory blog post for the series [see blog].

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. AILA Doc. No. 16100304 (Oct. 3, 2016)
2. Francis, Laura, “Justices' Immigration Denial Means More Litigation,” bna.com, (Oct. 4, 2016)
3. Morissey, Ed, “Breaking: Supreme Court denies Obama rehearing on U.S. v. Texas immigration fight,” hotair.com, (Oct. 3, 2016)

Lawyer website: http://myattorneyusa.com

Election Issues and Immigration #8: Solutions Regarding the Problem of Those Who are Here Illegally

INTRODUCTION

One of the most significant sticking points in the debate over immigration reform — if not the biggest sticking point — is how to manage the significant number of persons who are present in the United States illegally. In 2014, the Department of Homeland Security (DHS) estimated that there were 11 million aliens in the United States without legal authorization.[1]

WHY THIS IS A DIFFICULT ISSUE

The issue of how to handle those in the United States illegally is complicated not only because of partisan disputes, but also because there are a significant number of competing concerns and interests. I will provide a brief overview of these considerations:

1. The significant number of aliens in the United States illegally undermines United States laws. The immigration laws exist to manage the flow of persons seeking to enter our country.

• We have a process for vetting those who wish to enter the United States to ensure that people who pose a danger to U.S. security or to the U.S. community and those whose admission would otherwise be contrary to the national interest are not allowed into the United States. If people are able to enter the United States without inspection or to remain in the United States without authorization after having gained lawful entry, then it follows that the immigration laws are not protecting the United States from potential harm.
• The immigration laws also have provisions to protect the United States job market. While there is intense disagreement in the political arena regarding the net good and harm done by alien workers, the laws provide for the admission of certain alien workers and proscribe penalties for both employers who employ aliens who lack employment authorization and for aliens who work without authorization. Whether the laws are successful, their goal is to strike a balance such that the United States benefits from nonimmigrant and immigrant labor and skills while not allowing such workers to negatively affect the job market for U.S. citizens (and permanent residents). Unauthorized employment undermines the entire statutory scheme regarding alien employment.
• The ability of aliens to live and work in the United States without authorization encourages further violations of U.S. immigration law. To be sure, if people who are looking for a better life believe (1) that it is easy to live and work in the United States without going through the proper procedures, and (2) that it is to their benefit to do this rather than to try to gain admission through legal means, then it follows that the lack of immigration enforcement creates a perverse incentive to continue to violate the immigration laws.

2. There are logistical and humanitarian concerns over removing everyone who is here illegally.

• While the presence of 11 million-plus persons in the United States illegally is a serious problem, it is not practical to remove them all. This would require vast financial expenditure in the form of federal agents and immigration adjudicators that is simply not practical.
• Most people who are in the United States illegally are not dangers to U.S. security or to their communities. In fact, many of these people abide by all of the laws other than the immigration laws and work hard to provide for themselves and their families. Furthermore, many people here illegally have established deep roots in their communities, and some were even brought to the United States as children and have a distinctly American identity.
• The violations of the immigration laws are sometimes encouraged by the immigration laws themselves. For example, as I discussed in a blog, the lack of a nonimmigrant visa category for dairy farmers is a ridiculous situation that harms U.S. employers, the U.S. dairy market, and many people of good will who are willing to do a difficult job that U.S. citizens are not inclined to do [see blog]. Furthermore, the long wait times for visa processing may also create a disincentive for following the immigration laws. In certain cases, immigration penalties such as the 3- and 10-year unlawful presence bars of inadmissibility [see article], while perhaps justified, incentivize people to remain in the United States without authorization.

DIFFERENT WAYS OF HANDLING THE ISSUE

The complexity of these issues concerning those who are in the United States illegally leads to diverse proposals offering conflicting solutions. Some, such as Hillary Clinton, propose allowing those who are deemed to not be high deportation priorities to immediately be put on a path to citizenship as part of a comprehensive immigration reform deal. This idea, colloquially called “amnesty,” would allow many, if not most, of the aliens in the United States illegally to apply for and be granted some sort of status that would eventually lead to a path to citizenship. However, even among those who agree in general with this concept there are disagreements with regard to how stringent the requirements for legalization and eventual citizenship should be. Clinton's public statements suggest that she supports a very lenient path, while the ill-fated “Gang of Eight” proposal would have entailed a long path to citizenship for certain persons here illegally. In the Republican primaries, Senator Marco Rubio proposed a path to legalization that would require even qualified aliens to spend at least a decade in a special nonimmigrant status before even applying for LPR status.[2]

Others oppose any path to citizenship at all. This position was staked out by Senator Ted Cruz in the Republican Presidential primary. Under this proposal, people who are in the United States illegally would remain subject to deportation so long as they remained. Their only recourse for obtaining legal status would be within the framework of the existing immigration laws (which, in many cases, would mean departing and then applying for lawful status while abroad).

Finally, some have voiced support for what is sometimes called “touchback amnesty.” Both Donald Trump and Mike Pence have proposed variations of this concept in the past. In short, touchback amnesty would require those who are here illegally to depart the United States and apply for some sort of legal status while abroad. The carrot for departure would be the promise of later legalization. Other variations of the approach involve an increased emphasis on deportation, especially for those who do not depart voluntarily. However, Trump has at times seemed to propose allowing even people who are deported to seek legal status expeditiously from abroad.

THE GOAL OF ANY PROPOSAL AND THE LESSON OF THE IRCA 1986

In deciding between the various approaches, one must first ascertain what the desired result is. In my assessment, any proposal must:

1. Resolve the issue of eleven million people here without authorization; and
2. Ensure we are not facing the same situation thirty years from now.

I did not just pick “thirty years” out of a hat. It was thirty years ago that President Ronald Reagan signed the Immigration Reform and Control Act of 1986 (IRCA of 1986). The Act combined immigration enforcement measures with a substantial legalization program for certain persons who had entered the United States before 1982 and remained continuously. In signing the legislation, President Reagan surely hoped that the combination of new enforcement measures and the resolution of the status of those who were then present illegally would help solve the problems in our immigration system. However, as evinced by the existence of the blog post you are reading, the IRCA of 1986 did not live up to its promise. We can glean two main lessons from the failure of the 1986 Law to curb illegal immigration:

1. The legalization provision itself functioned as a perverse incentive for future illegal immigration in that it created an expectation that people here illegally would eventually be legalized; and
2. The potential effectiveness of the enforcement provisions, enacted at the same time as the legalization program, could not be known before they were actually put into effect.

In short, “comprehensive immigration reform” efforts that mix enforcement and legalization (with or without citizenship) for those who are here illegally have a fundamental problem: While the outcome of legalization of current aliens is predictable, the future effectiveness of even the most well-conceived immigration enforcement policy can only be the subject of speculation, which is further complicated by the fact that legalization will encourage an additional influx of illegal immigration.

DUBIOUS PROPOSALS (INCLUDING THOSE OF THE TWO MAJOR CANDIDATES)

It is clear from the goals I set for dealing with those who are here illegally and my brief study of our past experience that Hillary Clinton's simplistic proposal is inadequate. Similar to the IRCA of 1986 framework, Clinton asks us to trade definite legalization and a path to citizenship for changes to the immigration laws that will have uncertain effectiveness in curbing future violations. Furthermore, the laxity of the requirements she seems to suggest for legalization will create a strong incentive for future violations of the immigration laws.

However, touchback amnesty is also not the solution. I have explained on my blog that Donald Trump's occasional proposals for mass deportations are simply not realistic. As much truth as there may be to the joke that immigration enforcement seems to be the only thing that Democrats consider too expensive, it is undoubtedly true that the potential resources and expense involved in deporting 11 million or more people who are here illegally is not a realistic consideration. Furthermore, such an approach would be inhumane, depriving those who are here illegally of the protections of our immigration laws and indiscriminately tearing families apart.

Of course, simply doing nothing and wishing the problem away has also proven to not be a solution either. If nothing continues to be done, we will continue to have an extremely high number of persons present in the United States in violation of the immigration laws who potentially pose the threats that those laws are designed to safeguard against. Their presence will serve as an incentive to others who want entry into the United States, and as an insult to those who often wait years for the opportunity to enter lawfully. Like Clinton's proposals, these approaches ultimately fail in achieving either of the objectives that we should work toward in coming up with a solution.

Touchback amnesty is an impressive transmogrification of the two aforementioned methods into something that is arguably even worse. On one hand, it is easy to see the appeal of touchback amnesty. One may think that compelling illegal aliens to leave the United States with a promise of a path to a legal return provides the requisite incentive for them to depart. However, it is not so simple. In reality, many people who are living “in the shadows,” so to speak, will determine that their best option is to remain as they are in the United States. This is because there would likely be no guarantee that they would be found eligible for status upon applying from their home countries. Moreover, if there were to be a guarantee, then “touchback amnesty” could be said to be even more lenient than Clinton's preferred position (see my discussion of a 2007 proposal by Mike Pence [see blog]).

Finally, the worst position has been suggested at times by Donald Trump, who has proposed to encourage so-called mass deportations before allowing the majority of the people deported to subsequently obtain lawful admission [see blog]. That idea combines all of the problems from the previous two approaches into an approach that is inarguably more inane and illogical than either. Fortunately, Trump has seemed to somewhat back off the first prong of this proposal, although it is unclear where he stands on the second [see blog].

THE BEST PATH FORWARD

Before addressing the status of those who are here illegally, Congress should pass and the President should sign a law detailing new immigration enforcement measures. It is important that law address both those who enter without inspection and those who enter legally but then overstay or otherwise fall out of status and remain. The status of those who are currently here illegally should not be addressed until we see that certain clearly defined and impartially measured benchmarks have been met through the implementation of new enforcement measures. Handling the issue in this manner reverses the paradigm from previous unsuccessful combined efforts, because the determination of how best to address those who are here illegally would be contingent on the enforcement provisions first yielding actual results. This would incentivize all sides looking for a solution to come up with potentially effective ways to curb illegal immigration and to do what is necessary to ensure the success of the new laws and initiatives.

One issue with my method is that those who seek immediate legalization would likely be skeptical that amnesty would be agreed to down the line. However, I think that both sides can come to an agreement by including strong pro-immigration reforms with the new enforcement measures. To return to the dairy farmer example, a program to make it possible for dairy workers to enter the United States legally as nonimmigrants would benefit the U.S. dairy industry and allow our immigration enforcement agents to focus on more productive issues. Furthermore, we must reorient the focus of our immigration system toward attracting people with a broader range of practical yet valuable skills who may benefit the United States. This means creating an effective merit-based points system for applicants, increasing the number of available visas, and making it easier for highly skilled nonimmigrant and immigrant workers to apply their valuable skills in the United States. General proposals such as these do not only benefit the United States by bringing in aliens with valuable skills, but it also strengthens our legal immigration system as a whole.

Once we meet immigration enforcement benchmarks and enact reforms to make our immigration system more amenable to aliens with valuable skills, I would support a legalization program for many people who are here illegally but who do not otherwise have a criminal record, who pay back taxes, and who meet certain residency requirements in the United States. While it is never ideal to reward future illegality, such a proposal would encourage those who are here illegally and who have been otherwise upstanding members of U.S. society to come forward and obtain legal status with the promise of a long path to permanent residency and citizenship (to be clear, seeking permanent residency through legal channels must come first). This legalization program would allow immigration enforcement to focus its resources on those who actually do pose a threat and those who enter illegally or overstay after enactment of the new legalization. Such an approach would be compassionate, pro-immigration, and mitigate the risk that we have the same problems in the future.

Consider this a brief overview of some of my positions on immigration reform. I look forward to providing much more details on specific proposals in future immigration blogs. To see other entries in my series of posts about immigration issues and the election, please see my introductory entry [see blog].

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. Jens Manuel Krogstad, Jeffery S. Passel, and D'Vera Cohn, “5 facts about illegal immigration in the U.S.,” pewresearch.org, (Sep. 20, 2016)
2. Sebelius, Steve, “Would Marco Rubio's immigration plan work?” reviewjournal.com, (Oct. 10, 2015)

Lawyer website: http://myattorneyusa.com

How to Retrieve I-94

What is the Form I-94, Arrival/Departure Record?

The Form I-94 is an immigration form issued by the Customs and Boarder Protection (CBP).  It is issued to all aliens who are admitted to the United States as well as those aliens who seek adjustment of status or an extension of stay while in the United States.  The Form I-94 has the date on which the alien was admitted to the United States and the date on which he or she must depart. Each Form I-94 also includes a Form I-94 number.

For a long time, the Form I-94 was always issued in paper format.  However, beginning on April 30, 2013, the CBP began issuing many Form I-94s electronically.  All aliens will have an electronic Form I-94 generated except for those who are admitted at a land border port of entry, who still receive paper Form I-94s.

In addition, the CBP’s Form I-94 website contains an alien’s travel information as it has been entered on his or her current passport going back five years.  However, it is important to note that the travel information does not constitute an “official” government document and, therefore, may not take all travel into account or be completely up-to-date.

Importance of the Form I-94

When an alien intends to pursue immigration benefits, or even certain government benefits that require proof of status, he or she must submit documentation verifying his or her immigration status. The United States Citizenship and Immigration Services (USCIS) almost always requires proof of lawful entry into the United States for those seeking benefits.  The Form I-94 will usually suffice as proof of lawful entry.  However, merely being able to produce the Form I-94 does not guarantee eligibility for a benefit nor serve as proof that the alien has maintained lawful status subsequent to his or her lawful admission.

Retrieve a Form I-94 Electronically

In order to retrieve a Form I-94 from the CBP website, the alien must visit the CBP’s website at https://i94.cbp.dhs.gov/I94/#/home. The website contains detailed instructions for retrieving the Form I-94.  The alien will be required to enter his or her full name, date of birth, passport number, and passport country of issuance as it appears on the passport that he or she had used to obtain the Form I-94 being requested.

Retrieve a Lost Paper Form I-94 With No Electronic Record

If an alien loses his or her paper Form I-94, and there is no electronic record on the Form I-94 website, he or she may file the Form I-120, Application for Replacement/Initial Non-Immigrant Arrival/Departure Document, with the USCIS.  The filing fee is $330.00 as of October 14, 2016.

Viewing Travel History on the Form I-94 Website

A person may also retrieve his or her travel history for the previous five years associated with his or her current passport.  The forms are located online at the Form I-94 website.  The process is similar as for retrieving a Form I-94.  Please note that, in addition to the caveats noted in section one, the travel information will only be that which is associated with the alien’s current passport.  In order to retrieve travel information outside of the five-year window or travel information associated with a different passport, an alien must make an inquiry with the CBP.

Freedom of Information Act (FOIA) Requests

An alien or his or her attorney may also seek information regarding his or her arrival/departure record associated with a specific passport by filing a FOIA request with the CBP.  If an alien no longer needs the information requested, he or she may cancel the request by using the FOIA request number.

Conclusion

The CBP’s move toward Form I-94 automation means that many Form I-94s have to be retrieved online.  The Form I-94 website also allows the alien to retrieve certain travel information associated with his or her current passport.  Aliens seeking immigration benefits, extension of stay, or adjustment of status are well advised to consult with an experienced immigration attorney.  In addition to helping with complex application processes, an experienced immigration attorney will be able to assist if there are any issues involving the retrieval of an alien’s Form I-94 or his or her travel history.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Resources and materials:

Alexander J Segal - "Retrieving a Form I-94"

Lawyer website: http://myattorneyusa.com

USCIS Releases Updated Edition of Form I-191

The United States Citizenship and Immigration Services (USCIS) has published a new version of the Form I-191, Application for Relief Under Former Section 212(c) of the Immigration and Nationality Act (INA). The new edition of the Form I-191 is dated 09/20/16. Despite issuing this new edition of the form, the USCIS will continue to accept previous editions of the form. The edition date for the Form I-191 may be found on the bottom left corner of both the Form I-191 itself and the Form I-191 instructions.

The Form I-191 is a limited-use form for certain lawful permanent residents (LPRs) to seek relief under the now-repealed section 212(c) of the Immigration and Nationality Act (INA). Section 212(c) allowed certain LPRs to be admitted to the United States notwithstanding certain criminal convictions. Although the provision was repealed by the U.S. Congress on April 1, 1997, the U.S. Supreme Court held in INS v. St. Cyr, 533 U.S. 289 [PDF version] that the old section 212(c) was still available to LPRs who pled guilty to a crime prior to the effective repeal date of the old section 212(c). In the Matter of Abdelghany, 26 I&N Dec. 254 (BIA 2014) [PDF version], The BIA extended the class of LPRs eligible for section 212(c) relief to those who were convicted following a trial held before April 1, 1997 [see Form Instructions].

The Form I-191 is filed with the USCIS, unless the applicant is in immigration proceedings, in which case it is filed before the immigration court. The filing fee is $550.00.

The eligibility requirements for relief under the old section 212(c) are complicated not only because of the requirement that the plea or conviction must have occurred prior to April 1, 1997, but also because the rules for section 212(c) relief are different depending on when the plea or conviction occurred prior to April 1, 1997. An LPR charged with removability or deportability should always consult with an experienced immigration attorney for a full evaluation of his or her situation and potentially available options.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Immigration Marriage Fraud

What is Immigration Marriage Fraud

The Immigration and Nationality Act (INA) provides for immigration benefits for the alien spouse of a U.S. citizen.  For example, a U.S. citizen may file an immediate relative petition on behalf of his or her alien spouse, which is not subject to an annual cap.  The beneficiary of a U.S. citizen’s spousal immigrant visa petition may be eligible for waivers of harsh forms of inadmissibility, such as the 3- and 10-year unlawful presence bars.

For these reasons, many aliens are tempted to enter into what is called a “sham marriage.”  This is defined in statute in INA 216(b)(1)(A)(i) as “[a marriage] entered into for sole purpose of obtaining an alien’s admission as an immigrant.”  However, the immediate relative category for the spouse of a U.S. citizen is for the bona fide spouse of a U.S. citizen, not for someone who entered into a sham marriage in order to circumvent the immigration laws.  For this reason, the immigration laws contain harsh penalties for those who enter into a sham marriage or conspire to enter into a sham marriage for the purpose of circumventing the immigration laws.

When May Marriage Fraud Arise as an Issue

The Department of Homeland Security (DHS) may take action at any time it has evidence that an alien procured or sought to procure status through a sham marriage.  However, there are certain points in the family petitioning process when a marriage will be subjected to direct scrutiny from U.S. immigration officials.

The first of these points is of course the petitioning process.  In order to secure an immigrant visa for the spouse of a U.S. citizen, the petitioner and the beneficiary must submit evidence establishing the legitimacy of their marriage.  Similar evidence is required for K1 visa petitioners (nonimmigrant fiancée visas).

A person who procures status on the basis of marriage will not immediately be a full lawful permanent resident (LPR).  Rather, such a person will instead be granted what is called “conditional permanent residency.”  The conditions on LPR status run for two years from the grant of status (note that these two years count toward the five-year LPR period for naturalization purposes).  A conditional LPR must apply to have the conditions removed from his or her status within 90 days of the expiration of the two-year conditional LPR period.  In order to have the conditions removed, the U.S. citizen and his or her conditional LPR spouse must file the application jointly and appear for an interview.  In the interview, one of the things that the USCIS will look to determine that the marriage was not entered into for the primary purpose of procuring immigration benefits.  There are limited exceptions from the joint filing requirement if the conditional LPR spouse establishes that the marriage was terminated or that he or she was battered or subjected to extreme cruelty by the U.S. citizen spouse (or if the U.S. citizen spouse was in a bigamous relationship), and the marriage was entered into in good faith.

Finally, persons who previously gained status through marriage may be required to establish the bona fides of the previous marriage in order to be subsequently accorded status.

What is a “Bona Fide” Marriage?

The key consideration in determining whether a marriage is bona fide is “whether the bride and groom intended to establish a life together at the time they were married” (see the Matter of Laureano, 19 I&N Dec. 1, 2-3 (BIA 1983)).  The Board of Immigration Appeals (BIA) held in the Matter of Peterson, 12 I&N Dec. 663 (BIA 1968) that a marriage need not have all of the ideal “hallmarks” of a marriage in order to be bona fide.  For example, whether a marriage was consummated is not necessarily determinative of whether the marriage is legitimate (e.g., see Peterson where an elderly U.S. citizen married a woman because he needed a housekeeper and the marriage was never consummated).

Additionally, merely having considered the immigration benefits in a marriage does not in and of itself render a marriage fraudulent.  The primary consideration for adjudicators will be whether the couple intended to establish a life together at the time of the marriage.  A marriage will only be considered a sham if the couple entered into it for reasons other than to establish a life together.

Determining the Bona Fides of a Marriage

To start, it is important to note that immigration adjudicators are extremely well-trained and adept in discovering marriage fraud.  Although the mere fact that marriage fraud is illegal under U.S. law should be in and of itself a sufficient deterrent, the skill of immigration adjudicators in uncovering marriage fraud and the harsh penalties that follow are further deterrents.  Adjudicators look for the following in interviews as mark indicators of marriage fraud:

• Extreme nervousness;
• Over interaction;
• Lateness for interview;
• Answers prompted by attorney;
• Lack of eye contact;
• Evasive or general answers;
• Answers interrupted by attorney or other person present;
• Attorney directs to distract or mislead;
• Over-submission of documents;
• Staged photographs of couple;
• Petition preparer suspected of fraud;
• Suspect documents;
• Documents issued immediately before or after interview;
• Short time between entry and marriage;
• Unusual marriage history;
• Children born during marriage to a different parent;
• Divorce and marriage date close together;
• Unusual or large age discrepancy between spouses;
• Unusual cultural differences between spouses; and
• Previous marriages by U.S. citizens to foreign nationals.[1] 

No single factor is necessarily determinative in assessing the bona fides of a marriage.  Rather, adjudicators will consider all relevant factors in determining whether a marriage is legitimate.  The burden rests with the alien and the petitioner to establish eligibility for immigration benefits deriving from marriage.

When seeking to remove conditions on permanent residency obtained through marriage to a U.S. citizen, regulations in 8 C.F.R. 216.4(a)(5) suggest the submission of the following documentation:

1. Documentation showing joint ownership of property;
2. Lease showing joint tenancy of a common residence;
3. Documentation showing comingling of financial resources;
4. Birth certificates of children born to the marriage; 
5. Affidavits of third parties having knowledge of the bona fides of the marital relationship; or
6. Other documentation establishing that the marriage was not entered into in order to evade the immigration laws of the United States.

The best evidence to establish the bona fides of a marriage will depend on the specific circumstances of the marriage and of the two parties.  A person seeking to establish the bona fides of a marriage that he or she entered into for legitimate purposes should consult with an experienced immigration attorney for guidance regarding the appropriate documentation that he or she should submit.

Consequences of Marriage Fraud

The INA proscribes severe penalties for those who are found to have committed marriage fraud.  Section 204(c) prohibits the approval of an immigrant visa petition on behalf of an alien who was previously found to have entered into a sham marriage or who conspired to enter into such a marriage.  No formal finding of a sham marriage or conspiracy to enter into a sham marriage is required to trigger section 204(c).  However, adjudicators must have evidence that the alien either previously entered into a sham marriage or conspired to do so.

Section 275(c) of the INA states that an individual who knowingly enters into a marriage for purpose of evading “any provision of the immigration laws” shall be imprisoned for not more than five years, or fined not more than $250,000, or both.  However, it is not necessary for purpose of section 204(c) that the person be penalized under section 275(c).

An alien who procures or endeavors to procure immigration status through a sham marriage may be found to be inadmissible for fraud or misrepresentation of a material fact to procure an immigration benefit under section 212(a)(6)(C)(i) of the INA.  Under section 237(a)(1)(G), an alien may be found to be removal for being inadmissible for fraud or misrepresentation if he or she procures status on the basis of a marriage, the marriage is terminated before the 2-year conditional LPR period elapses, and the alien fails to establish that the marriage was not entered into in order to circumvent the immigration laws.  The alien may also be found to be inadmissible and deportable if it appears to the Government that he or she refused to fulfill the marital agreement for the marriage from which he or she procured status. 

Under section 237(a)(1)(H), there is a discretionary waiver available for the parent, son, or daughter of a U.S. citizen or of an LPR who was in possession of an immigrant visa or equivalent document and who was otherwise admissible at the time of admission save for 212(a)(5)(A) and (7)(a) which were a direct result of fraud or misrepresentation.  There is also a similar provision for VAWA self-petitioners.  Section 212(a)(6)(C)(i) inadmissibility may be waived in limited circumstances with section 212(i).  It is important to note that these waivers are purely discretionary, and that no person who was found to have entered into a sham marriage or conspired to do so can expect to be entitled to a waiver.

Conclusion

Being found to have entered into a sham marriage or have conspired to do so is an extremely serious immigration violation.  The circumstances in which the penalties for marriage fraud may be waived are very limited.  Additionally, it is important to note that immigration attorneys have an ethical duty to not willfully present a fraudulent case to a tribunal.  Persons with legitimate marriages should consult with an experienced immigration attorney for guidance on how to establish the bona fides of a marriage or a previous marriage to immigration adjudicators.

1. See AILA InfoNet at Doc. No. 10012861

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Resources and materials:

Alexander J Segal - "Marriage Fraud", "Consequences of Marriage Fraud", "Determining Whether Previous Marriage was Bona Fide"

Lawyer website: http://myattorneyusa.com

Series of Articles on Determing Divisibility and the Matter of Chairez

NEW RULES REGARDING DETERMINING DIVISIBILITY

On September 28, 2016, the Board of Immigration Appeals (BIA) issued an important precedent decision titled the Matter of Chairez, 26 I&N Dec. 819 (BIA 2016) [PDF version]. The Board set forth new rules for determining when a criminal statute may be considered “divisible” for purposes of applying the modified categorical approach that are in accord with the Supreme Court decisions in Descamps v. United States, 133 S.Ct. 2276 [PDF version] and Mathis v. United States, 133 S.Ct. 2243 (2016) [PDF version].

This was in fact the third published decision that the Board had issued on this same case. The Chairez case concerned determining whether a conviction in violation of a Utah State statute for felony discharge of a firearm was categorically a crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act (INA). For the definition of “crime of violence,” the INA relies upon a federal criminal statute found in 18 U.S.C. 16 (the instant cases specifically deal with 18 U.S.C. 16(a) and not (b)). The issue in the case was that the Utah statute was “categorically overbroad” with respect to crime of violence provision in 18 U.S.C. 16(a). While most of the conduct proscribed by the statute fell clearly within the boundaries of 18 U.S.C. 16(a), it was possible that under one part of the statute for a conduct with a mens rea (state of mind) of recklessness to be sufficient for a conviction. The Board, following the precedent of the Tenth Circuit from which the cases arose, did not consider such conduct to be a crime of violence under 18 U.S.C. 16(a).

Accordingly, the question became whether the statute was “divisible.” If the statute was divisible, the Board would be able to assess the record of conviction to determine whether the conduct that led to the alien's conviction had been a crime of violence. However, if the statute was not divisible, the Board would be forced to assess only the language of the statute as a whole to determine if the conviction was for a crime of violence.

In the first two Chairez cases, the Board read Descamps in such a way as to find that the statute was divisible. In the first Chairez decision (Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) [PDF version]), the Board found that the statute was not divisible because in order for the mental states to be considered “elements,” a jury would have to agree on the mental state to convict. However, after Chairez I, the Tenth Circuit held in United States v. Trent, 767 F.3d 1046 (10th Cir. 2014) that jury unanimity was not required by Mathis with respect to an element. Accordingly, the Board reversed its original decision in the second Chairez (Matter of Chairez, 26 I&N Dec. 478 (BIA 2015) [PDF version]). However, the Board did not change its position from Chairez I, deciding to continue applying its stricter standard for divisibility in cases arising outside of the jurisdiction of the Tenth Circuit.

Recognizing the inconsistent approach to divisibility, the Attorney General issued a stay of the second Chairez decision in late 2015, pending her review. In June of 2016, the Supreme Court issued a decision in an unrelated case in Mathis v. United States. In Mathis, the Court held that jury unanimity was required with respect to an element in order for a statute to be considered divisible. With the issue apparently resolved, the Attorney General lifted her stay shortly after Mathis was issued, and remanded to the Board to resolve the case in accordance with the rules set forth in Descamps and Mathis.

LEARN MORE

We have been posting about the Matter of Chairez at myattorneyusa.com since the Attorney General issued her stay last November. The following is a list of our articles on the two published Attorney General decisions and the third Matter of Chairez, along with our articles on Descamps and Mathis:

• Descamps v. United States and its Effects on Immigration Law [see article];
• Attorney General Refers two BIA Decisions to Herself for Review [see article];
• Mathis v. United States: SCOTUS Clarifies When the Categorical Approach Must be Used [see article];
• Attorney General Lifts Stay in Chairez & Sama Regarding Use of Categorical/Modified Categorical Approach [see article]; and
• Matter of Chairez, 26 I&N Dec. 819 (BIA 2016) — Board Follows Mathis Regarding Determining Divisibility [see article].

Additionally, please see our article about another recent BIA decision where the question of divisibility was an issue:

• Matter of Guzman-Polanco: BIA Holds that State Statute Requires “Violent” Physical Force to be a Crime of Violence [see article].

The third Matter of Chairez decision references an interesting Supreme Court decision in Voisine v. United States, 136 S.Ct. 2272, 2280 (2016) [PDF version]. Although neither Voisine nor Chairez resolve the issue, the question is whether certain crimes with a minimum mens rea of recklessness may be categorical crimes of violence. The following are links to the two articles we have on site about this important question:

• Voisine v. U.S.: Question of Whether “Crime of Violence” Includes Reckless Conduct [see article]; and
• Update on Recklessness and Crimes of Violence After Voisine [see article].

CONCLUSION

The question of divisibility arises because state statutes are not written with federal laws, such as the INA and title 18 of the U.S. Code, in mind. Therefore, when determining whether a state offense falls under a punitive portion of the INA, it is possible that the state provision may cover more conduct than the INA provision, as was determined to be the case in the third Chairez decision.

We hope that our series of articles on this subject will help clarify the important and complicated issues presented in the case. The new Chairez decision is generally favorable to aliens with criminal convictions in that it allows adjudicators to look beyond the language of a criminal statute in much narrower circumstances than the second Chairez decision and the Tenth Circuit decision in U.S. v. Trent. If an alien is facing criminal charges or is facing removability due to a criminal conviction, it is essential that he or she consult with an experienced immigration attorney immediately.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

USCIS Publishes Updated Form G-1055, Fee Schedule

DHS PUBLISHES NEW EDITION OF THE FORM G-1055, FEE SCHEDULE

On September 19, 2016, the Department of Homeland Security (DHS) released the new of edition of the Form G-1055, Fee Schedule. The Form G-1055 lists the United States Citizenship and Immigration Services (USCIS) fee for all forms published by the DHS. The Form G-1055 also includes associated biometric fees where applicable. The Form G-1055 is an important resource for people who need to know the most up-to-date USCIS forms information. You may find the new edition here [PDF version of Form G-1055].

INFORMATION ABOUT FEE WAIVERS

Certain applicants may apply for a fee waiver for generally applicable fees associated with a DHS-published form. We have articles explaining which forms are eligible for fee waivers [see article] and the rules for applying for a fee waiver (usually with the Form I-912, Request for Fee Waiver) [see article]. We also discuss the fee requirements for forms specific to proceedings in immigration court and before the Board of Immigration Appeals [see article], as well as the rules for applying for fee waivers in these situations [see article].

CONCLUSION

The Form G-1055, Fee Schedule, is useful for finding the current fee information for DHS-published forms. Persons who need to file a fee with the DHS should always check the form instructions for the most current information. Persons filing forms with the USCIS should consult with an immigration attorney for any questions or complicated filings associated with certain applications.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

The Importance of Reauthorizing the Conrad 30 Waiver Program

Immigration has been in the headlines of late for its prominence in the Presidential race [see blog]. The debate over the reauthorization of the EB5 program, which is otherwise slated to expire on September 30, 2016, has also been making news both in Congress and on this site [see article]. However, there are many smaller immigration programs and details that are worth careful attention as well. For example, as I noted in my blog about the debate over EB5 reauthorization, the Conrad 30 Waiver program and the Special Immigrant Non-Minister Religious Worker Program are also slated to expire on September 30, 2016, although both are likely to be extended.

We have a comprehensive article on the Conrad 30 Waiver program on site [see article]. In short, the Conrad 30 Waiver program allows a state department of health to recommend up to thirty J1 medical doctors each year for a waiver of the 2-year home residency requirement, provided that they agree to be employed full time at a health care facility in a designated area of need for at least 3 years in H1B status. If the 3-year program is completed, the doctor will be eligible to apply for an immigrant visa, permanent residence, or an H or L nonimmigrant visa.

Last year, the Conrad 30 Waiver program was slated to expire first on September 30, 2015, and then in December of 2015. The program was ultimately extended, unchanged, on both occasions. On the latter occasion, the program was extended as part of the omnibus appropriations bill on December 16, 2015 [see blog].

Six days before the program was renewed, a beneficiary of the program, Deepak Hooda, M.D., wrote an interesting article for The Hill explaining why renewing the program was so important [link].[1] In his article, Hooda explains that he procured a Conrad 30 Waiver in 2013 to work in West Virginia as an interventional cardiologist. He noted that he had become quite attached to West Virginia. Despite its virtues, West Virginia is one of the poorest states in the United States, and Hooda noted that it also has “one of the highest incidences of heart attacks in the country.” Fortunately, he reports, he has been able to provide new and innovative cardiovascular treatments to a population of patients in great need. In making a passionate case for the renewal of the Conrad 30 Waiver program, Hooda observed that he is only one of thousands of foreign-born doctors who “have been able to make critical contributions to America's rural counties” due to benefitting from a Conrad 30 Waiver. Furthermore, he cited to a study indicating that twenty percent of physicians in rural communities are expected to retire over the next five years, thus further undermining the already imperiled medical outlook in these counties. He concluded his argument in support of renewing the Conrad 30 Waiver program by stating, “Congress should move swiftly to reauthorize and expand this program; my experience has shown that it is, quite literally, a matter of life and death.”

Dr. Hooda's article provides an interesting perspective from a person who has been able to benefit patients in need thanks to the Conrad 30 Waiver program. For good reason, our immigration debate often keys in on popular issues such as immigration enforcement, legalization and amnesty, numbers of work visas, and contentious programs and initiatives such as the EB5 program. However, it is important that we also pay attention to smaller programs that may yield important benefits. The Conrad 30 Waiver program is an example of an immigration initiative that allows highly skilled and educated professionals to apply their skills in a targeted way to help Americans who are most in need. While, like for any program, we can always look at ways to improve it based on results and/or new ideas, the Conrad 30 Waiver program is both a valuable immigration program and one that deserves more public attention for its clear focus and benefits.

1. Hooda, Deepak, “Congress must let foreign doctors serve America's rural communities,” thehill.com, (Dec. 10, 2015)

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

What is Unlawful Presence?

In immigration law, there is a concept referred to as “unlawful presence.”  By accruing certain amounts of unlawful presence in conjunction with other actions, an alien may find him or herself subject to one of the inadmissibility bars.  The Immigration and Nationality Act (INA) provides for a 3-year bar of inadmissibility, a 10-year bar of inadmissibility, and what is generally referred to as a permanent bar of inadmissibility.  In this article, we will example how unlawful presence is accrued, the 3- and 10-year unlawful presence bars, and waivers from the unlawful presence ground of inadmissibility to the United States.

When Does an Alien Accrue Unlawful Presence?

Under INA 212(a)(9)(B)(ii), in general, an alien will begin accumulating days of unlawful presence if he or she is present in the United States after:

• The Expiration of the period of stay authorized by the Attorney General; or
• Entry into the United States without having been admitted or paroled.

With regard to the first point, it is important to distinguish the concept of being “out of status” from accruing “unlawful presence.”  For example, take the case of an alien who is on H1B status, but then ceases working for his or her H1B employer.  If the alien remains in the United States without a change of status, he or she will technically be considered to be out-of-status.  However, following USCIS rules found in AFM 40.9.2(a)(2), the alien would generally not be considered to begin accruing unlawful presence until he or she is present in the United States after the expiration date on his or her Form I-94. The exception to this rule is if the alien applies for a benefit from the USCIS, and the USCIS finds in adjudicating the benefit request that the alien violated his or her status.  In such a case, unlawful presence would begin to count from the date the USCIS denies the benefit request (unless the denial was subsequent to the expiration date on the Form I-94).

Persons who are admitted for duration of status, rather than until a specific date, will begin accruing unlawful presence from the date that the USCIS denies an immigration benefit request or from the date that an immigration judge makes a formal finding of a status violation in immigration proceedings.

With regard to the second point, unless the alien falls within certain exceptions (see section 3), entry without inspection will lead to the accrual of unlawful presence from the moment the alien is present in the United States.

Exceptions from the Accrual of Unlawful Presence

There are several exceptions in INA 212(a)(9)(B)(iii) under which time does not count toward the unlawful presence bars.  These exceptions are as follows:

• Time spent in the United States under the age of 18;
• Time spent in the United States with a bona fide application for asylum under section 208 pending (however, unauthorized employment would start the unlawful presence clock);
• Time spent in the United States as the beneficiary of family unity protection under section 301 of the Immigration Act of 1990 (however, time spent before being granted family unity protection will count as unlawful presence);
• Time spent by an alien who is a VAWA self-petitioner, who has been subjected to battery or extreme cruelty by a spouse, parent, or member of the spouse or parent’s family, or if the spouse or parent acquiesced or consented to such cruelty (or if the alien’s child was subjected to battery or extreme cruelty by a spouse or a member of the spouse’s family and the alien did not actively participate)  provided that the alien establishes that the victimization was a central reason for the violation of the terms of the alien’s immigration status; and
• Time spent by an alien who establishes that he or she is a victim of a severe form of trafficking in persons provided that the alien establishes that his or her victimization was at least one central reason for the unlawful presence.

In these situations, an alien should consult with an experienced immigration attorney for guidance on whether he or she may be subject to the unlawful presence bars.

Tolling for Good Cause

Under INA 212(a)(9)(B)(iv), an alien who was lawfully admitted into the United States as a nonimmigrant and who files an application  for change of status or for extension of status before the expiration of his or her period of stay authorized by the Attorney General shall be protected from accruing unlawful presence for up to 120 days while the application is pending.  However, engaging in unauthorized employment will begin the clock on unlawful presence.

Unlawful Presence Bars

Under INA 212(a)(9)(B)(i)(I), an alien accrues at least 180 days of unlawful presence, and then departs the United States, he or she may be subject to one of the inadmissibility bars for unlawful presence.

An alien who is unlawfully present for more than 180 days but less than one year will be subject to the 3-year bar of inadmissibility if he or she voluntarily departed the United States prior to being placed in removal proceedings.  It is important to note that the alien must voluntarily depart before the conclusion of removal proceedings (or before being placed in such proceedings) in order to be subject to only the 3-year bar of inadmissibility.

Under INA 212(a)(9)(B)(i)(II), if an alien is unlawfully present in the United States for one year or more, he or she will be subject to the 10-year bar of inadmissibility after departure.  Unlike the 3-year bar, the manner of departure is irrelevant to triggering the 10-year bar of inadmissibility.

Unlawful presence must be continuous in order to count toward the bars.  For example, if a person accrues 175 days of unlawful presence, departs, and then on a subsequent stay accrues six days of unlawful presence before voluntarily departing, he or she would not be subject to the 3-year bar of inadmissibility.  Although it is not the focus of this article, it is worth noting that the more stringent “permanent bar” of inadmissibility works in a slightly different manner.  For the permanent bar, unlawful presence is counted in the aggregate.  If an alien accrued more than one year of unlawful presence over any number of stays, was ordered removed, and subsequently endeavored to reenter without inspection, the alien would be subject to the permanent bar of inadmissibility.

Unlawful presence time continues to accumulate even after an alien is placed in removal proceedings.

Waivers of Unlawful Presence Bars

A person who is subject to the 3- or 10-year bar of inadmissibility may procure a waiver of inadmissibility by filing a Form I-601 establishing both of the following:

• That he or she is the spouse, son, or daughter of a U.S. citizen or LPR; and
• That the refusal of his or her admission would result in extreme hardship to his or her U.S. citizen or LPR spouse or parent(s).

 It is important to note that a U.S. citizen/LPR child is not a qualifying relative for purpose of seeking a waiver of the 3- or 10-year unlawful presence bar.

If a person is in the United States and would be required  to leave to obtain an immigrant visa through consular processing, he or she may apply for a provisional unlawful presence waiver by using the Form I-601A.  For provisional unlawful presence waivers, the USCIS will adjudicate the waiver request before the person departs for consular processing.  If the person is ultimately granted a visa through consular processing, the provisional waiver will take effect in full.

Applicants for asylee or refugee status may seek a waiver by filing the Form I-602.

An applicant for temporary protected status may apply for a waiver to enter the United States.  Such a waiver may be granted for humanitarian purposes, for family unity, or if the granting of such a waiver is deemed to be in the public interest.  However, because a waiver to enter the United States on TPS does not require the establishment of extreme hardship, the alien would have to apply specifically for an unlawful presence waiver in order to seek adjustment of status.

Conclusion

A person who is unsure about his or her immigration situation with regard to unlawful presence should consult with an experienced immigration attorney.  Simply knowing the rules may, in many cases, prevent a person from accruing enough unlawful presence to trigger the 3- or 10-year bar.  If an alien is subject to the 3- or 10-year bars, or would be upon departure, he or she should consult immediately with an experienced immigration attorney for a full evaluation.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Resources and materials:

Alexander J Segal - "Unlawful Presence in the United States", "Provisional Unlawful Presence Waivers (Rules Taking Effect August 29, 2016)", "Permanent Bar - Overview"

Lawyer website: http://myattorneyusa.com