Sunday, September 20, 2020

TPS May Be Ending, What Can You Do?


 

TPS May Be Ending, What Can You Do?

 

By Liliana Gallelli, Esq. and Christopher Kerosky, Esq.

 

A Court ruled this week that the Trump Administration’s cancellation of, Temporary Protected Status (TPS) was valid.  This means that TPS may be ending for over 200,000 citizens of El Salvador living here.  This post outlines the options for them to stay in the U.S. under existing laws.  These suggestions also apply equally to Hondurans, Nicaraguans and others who are losing their TPS status here.

 

When does TPS really end for Salvadorans?

 

TPS for El Salvadorians will expire in November 2021.  For other immigrants with TPS, the ending date is January 2021.

 

Will I have enough time to obtain another legal status?

 

If you start your process now, this is enough time to obtain a work permit or Legal Permanent Resident Status (Green Card) for most people qualifying for other types of status.

 

What are the possibilities for staying here?

 

1.  Apply for Legal Permanent Residency (Green Card Status) through spouse or adult child

 

If you have an immediate family member (spouse or child over 21 years of age) who is US Citizen, you may be able to apply for Legal Permanent Residency (Green Card Status).  Most people with TPS who live in California do not even need a waiver (pardon) thanks to a new court ruling from last year.  It is important to apply for this before TPS ends.  

 

2.  Apply for Legal Permanent Residency (Green Card Status) through work

 

This option may be available for certain individuals depending on when they arrived in the US and if they have an employer willing to submit a petition on their behalf.

 

3. Parole in Place

 

If you have a family member who is in the US Armed Forces or Reserves, or served in the past, you may be eligible to apply for Parole in Place.  Parole in Place gives you the right to apply for a work permit and can also help you apply for Legal Permanent Residency (Green Card) in the future.

 

4. U Visa

 

If you, your spouse or your minor child have ever been the victim of a crime here in the US and you reported it to the police, you may be able to apply for a U Visa. With a U Visa, you can apply for a work permit and eventually Legal Permanent Residency. 

 

5. Asylum

 

If you have a well-founded fear of persecution of returning to El Salvador, you may be eligible for asylum.  This option often provides work permission within 6 months of filing.  It also offers a path to permanent residence if the application is approved.

 

Be Proactive. 

Because any new procedure will take time before you can obtain status or even a work permit, it’s important to determine what options are possible given the facts of your case.  Each case is different and time is of the essence. 

Make sure to renew TPS for the final renewal.  TPS status can help you obtain other legal status, particularly in California (and a handful of other states), and it protects you temporarily from deportation.  Maintaining your legal status is extremely important in the Trump era, when the Department of Homeland Security currently has a policy of exempting no one from deportation, if they are here without status.

This was written by Christopher Kerosky and Liliana Gallelli, both immigration attorneys licensed in California.

WARNING: The foregoing is an article discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.

 

Monday, August 31, 2020

NEW POLICY ON ADVANCE PAROLE (RIGHT TO TRAVEL) FOR DACA HOLDERS AND THE PATH TO A GREEN CARD


 

By Christopher Kerosky

New DACA policies by Trump Administration.

On August 24, 2020, U.S. Citizenship and Immigration Services provided guidance on how it will implement new policies regarding the Deferred Action for Childhood Arrivals (DACA).

·       USCIS will reject all initial DACA requests from foreign nationals who have never previously received DACA.

·       USCIS will limit grants of deferred action and employment authorization under DACA to no more than one year, but will not cancel any currently valid two-year grants of DACA or associated employment authorization documents (EADs).

·       USCIS will generally reject requests received more than 150 days before the current grant of DACA expires.

·       USCIS will only grant advance parole for travel outside the United States to DACA recipients for "urgent humanitarian reasons" or "significant public benefit".

The determination whether to grant advance parole to an alien is entirely within the discretion of USCIS and must be made on a case-by-case basis.

Some examples of circumstances that may warrant approval include, but are not limited to, situations such as:

1. Travel to support the national security interests of the United States;

2. Travel to support U.S. federal law enforcement interests;

3. Travel to obtain life-sustaining medical treatment that is not otherwise available to the alien in the United States; or

4. Travel needed to support the immediate safety, wellbeing or care of an immediate relative, particularly minor children of the alien.

CAUTION: DO NOT TRAVEL WITHOUT AN APPROVED ADVANCE PAROLE.

Applying for Adjustment of Status following travel with Advance Parole.

Advance parole makes some DACA recipients eligible for adjustment of status to the U.S. without a pardon and without going through consular processing outside the US.  For example, a DACA holder with a US citizen spouse. 

This means that if a DACA recipient travels abroad and returns under a grant of advance parole, he or she can apply for adjustment of status in the US.  This is a much faster and simpler procedure than the prior pardon procedure, which required the applicant to obtain a pardon (which were often denied) and to go through a lengthy procedure at a Consulate abroad, like Ciudad Juarez.

Now, DACA holders with a US citizen spouse can apply for permanent residence in San Francisco and generally obtain it in approximately one year.  There were many cases of DACA recipients successfully adjusting status after traveling abroad on advance parole between 2013-2017 before Trump stopped issuing Advance Parole to DACA holders. 

Of course, anyone contemplating travel outside the US or applying for permanent residence should get competent legal advice before doing so.

****************************************************************

CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced immigration law for over 25 years.   He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C. 

Mr. Kerosky has been recognized as one of the top lawyers in Northern California for over 10 years by “Super Lawyers”.  See https://profiles.superlawyers.com/california-northern/san-francisco/lawyer/christopher-a-kerosky/358dc9f1-b1c2-46b5-80cc-6e9610b1cd43.html

WARNING: The foregoing is a summary generally discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case before filing any application or petition.

 

 

Thursday, June 25, 2020

SUMMARY OF THE TRUMP EXECUTIVE ORDER LIMITING CERTAIN IMMIGRATION



SUMMARY OF THE TRUMP EXECUTIVE ORDER LIMITING CERTAIN IMMIGRATION.

 

On June 20, 2020, President Trump has issued a proclamation that suspends the entry of foreign nationals on certain employment-based nonimmigrant visas into the United States. This Proclamation also extends, effective immediately, Presidential Proclamation 10014 issued on April 22, 2020 which suspended the entry of certain immigrants into the United States.

The Proclamation suspends the issuance of visas for those seeking entry pursuant to a(n):

·       H-1B visa and any foreign national accompanying or following to join them;

·       H-2B visa and any foreign national accompanying or following to join them;

·       J visa, to the extent the foreign national is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any foreign national accompanying or following to join them; and

·       L visa, and any foreign national accompanying or following to join them.

The Proclamation will only apply to an individual identified above if they are:

·       Outside the United States on the effective date of the Proclamation; •

·       Do not have a nonimmigrant visa that is valid on the effective date of the Proclamation;

·       Do not have an official travel document other than a visa (such as a transportation letter, boarding foil, or advance parole document), valid on the effective date of the Proclamation or issued thereafter permitting the individual to be admitted to the United States.

 

Exemptions:

The Proclamation will not apply to the following individuals:

·       lawful permanent residents;

·       spouse or child of a U.S. citizen; •

·       any individual seeking entry to provide temporary labor essential to the U.S. food supply chain; •

·       any individual whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees. For the purposes of determining who is covered under the “national interest” exemption, the Proclamation directs the Secretaries of State, Labor, and Homeland Security to determine standards for those to whom such an exemption would be available, including any individuals who:

·       are critical to the defense, law enforcement, diplomacy, or national security of the United States; •

·       are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized; •

·       are involved with the provision of medical research at U.S. facilities to help the United States combat COVID-19; •

·       are necessary to facilitate the immediate and continued economic recovery of the United States; or •

·       are children who would age out of eligibility for a visa because of this proclamation or Proclamation 10014.

Discretion: The consular officer has discretion to determine if an individual is within one of the exempted categories outlined above.

Asylum Seekers: Asylum seekers are not included in the ban. The Proclamation states that it does not limit the ability of individuals to apply for asylum, refugee status, withholding of removal or protection under the Convention Against Torture.



Monday, June 22, 2020

HOW DO I SPONSOR MY FAMILY MEMBER TO IMMIGRATE TO THE U.S.?

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Please respond to our Santa Rosa address

HOW DO I SPONSOR MY FAMILY MEMBER TO IMMIGRATE TO THE U.S.?

An introduction to the family preference system.

Much of the immigration to the U.S. that occurs is through sponsorship by a family relative.  Family-based immigration allows for close relatives of U.S. Citizens and legal permanent residents to rejoin their families here in the U.S.   
However, the system is based on categories, each of which has strict annual limits in the number of immigrants allowed each year. This creates backlogs, some of them quite lengthy, in some of these family categories.
The priority is given to “Immediate relatives”.  This category does not have any limit or cap on the number of visas and therefore, there is no “waiting period” other than the amount of time the Department of Homeland Security (or the U.S. consulate abroad) takes to process these visas.  These “immediate relative” categories are:
·                Spouses of U.S. citizens;
·                Unmarried minor children of U.S. citizens; and
·                Parents of U.S. citizens.

Obtaining a green card through marriage.

In the case of marriage, an application must be submitted along with documents to prove the validity of the marriage and an interview takes place at the DHS office, if they are in the U.S.  It generally takes approximately six months to obtain conditional permanent residence for the spouse.  Conditional permanent residence is granted for two years.  

In the case of all immediate relatives in the U.S., an application for a green card can be processed here.  It is not necessary for the relative to be in legal status, but they must have come to the U.S. legally, with a  valid visa.  If they crossed the border without a visa, they do not qualify.

If the spouse is outside the U.S., then an application is filed here and once approved, the relative goes through “consular processing” back home in their home country.

Obtaining permanent residence through family members other than spouses.

You can sponsor other members of your family besides those in this “immediate relative” category, but in each case there will be a long wait for them to get a green card.  The other relative categories have limits on the number of visas and therefore, there are waiting periods, which can run from five to ten years or more.  These relative categories are:
·                Adult children (unmarried) of U.S. citizens (1st preference category)
·                Spouses and minor children of legal permanent residents (2d preference)
·                Adult children (married) of U.S. citizens (3d  preference category)
·                Brothers and sisters of U.S. citizens ( 4th preference category)

The waiting periods for each of these visas can be determined (approximately) by checking the U.S. Department of State website or the Visa Bulletin which they publish.  The visa bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html
The U.S. Department of State visa bulletin lists each category and the date on which an individual applied in each category who is being processed for a green card currently.  From this date, one can try to extrapolate how long it will take for an application filed today to take before a relative qualifies for permanent residence. 
As you’ll see when you check this bulletin, there are long waits for every category of family sponsorship.         In addition to per category limits to family-based immigration, there are also per country limits. 
Because of higher numbers of immigration to the U.S., persons coming from the countries of Mexico, the Philippines, China, and India have an even longer wait than those from the rest of the world.
While it may seem absurd to file to sponsor your relative given that the wait is over five years, there still are good reasons to do so.  If the annual limits per category are raised in the future, this waiting period will decrease. 
In any case, the sooner you file to bring your relative, the sooner the person will join you here as a green card holder.

****************************************************************
CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced immigration law for over 25 years.   He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C. 

Mr. Kerosky has been recognized as one of the top lawyers in Northern California for over 10 years by “Super Lawyers”.  See https://profiles.superlawyers.com/california-northern/san-francisco/lawyer/christopher-a-kerosky/358dc9f1-b1c2-46b5-80cc-6e9610b1cd43.html
.

WARNING: The foregoing is a summary generally discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case before filing any application or petition.



Friday, June 19, 2020

The Supreme Court Keeps Dreams Alive


The Supreme Court Keeps Dreams Alive

By Chloe Tomlinson, Esq.

 

I.               Introduction

 

On Thursday June 18, 2020 the Supreme Court blocked the Trump administration’s attempt to end Deferred Action for Childhood Arrivals (DACA). This decision addressed whether the Trump administration followed proper procedures in its’ decision to end DACA. In the Court’s Majority 5-4 decision written by Chief Justice Roberts, the Court found that the Trump administration’s decision to end the program was arbitrary and capricious. The Court ruled that the administration acted improperly in terminating the program. This decision provides temporary relief to over 650,000 DACA recipients.

 

II.            What is DACA, and who are The Recipients?

 

Every great dream begins with a dreamer. Always remember, you have within you the strength, the patience, and the passion to reach for the stars to change the world.” Harriet Tubman. The DACA recipients, also known as Dreamers, consist of over 650,0000 recipients, who are positively changing our country. They are medical professionals, teachers, activists, students, and parents to name a few.

 

The DACA program was implemented on June 15, 2012 by the Obama administration. It was implemented through a memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” which established the program known as Deferred Action for Childhood Arrivals (“DACA”).

 

The 2012 memorandum stated that,

 

“[T]o prevent [these] low priority individuals from being removed from the United States,” the DACA Memorandum instructs Immigration and Customs Enforcement to “exercise prosecutorial discretion on an individual basis . . . by deferring action for a period of two years, subject to renewal.”[1]

 

This program protects undocumented immigrants who were brought to the United States as children but does not provide a path for legal citizenship. The program created a two-year grant of deportation relief and work authorization to eligible young unauthorized immigrants. DACA recipients may request work authorization and are eligible for Social Security and Medicare.

 

The requirements for DACA included:

 

·       being at least 15 years old;

·       having entered the United States before the age of 16;

·       having continuously resided in the United States since June 15, 2007;

·       being enrolled in school, having earned a high school diploma or its equivalent, or being an honorably discharged veteran; and

·       having not been convicted of a felony, significant misdemeanor, or three or more misdemeanors; or otherwise posing a threat to public safety or national security.

 

Over 1.3 million people met the above-mentioned criteria to apply under the DACA program. As of September 30, 2019, approximately 652,880 individuals had active DACA status, according to USCIS. Americans have been largely in favor of this policy. A Pew Research survey conducted in June 2020 found 74 percent of Americans favored granting permanent legal status to immigrants who came illegally to the United States when they were children, while 24 percent opposed.

 

III.          The Supreme Court Decision blocked the Trump Administration’s attempt to end (DACA).

 

In 2017, the Trump administration announced that it would end the program, which it believed had been illegal in the first place. [2] On September 4, 2017, the Attorney General sent a letter to the Department stating that DACA “was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress' repeated rejection of proposed legislation that would have accomplished a similar result. [3] Therefore, on September 5, 2017, Acting Secretary Elaina Duke rescinded the June 15, 2012 memorandum. She stated that due to the complexities associated with this winding down program, there will be a window where certain DACA requests and applications may be adjudicated.

 

In June 2019 the Supreme Court agreed to hear all three cases regarding DACA, in which the lower courts agreed with the challengers. The challengers argued that the decision to rescind DACA violated the rights of DACA recipients and the Administrative Procedure Act (“APA”). The APA requires there to be an articulated, legitimate justification for an administrative action.

 

The issue decided by the Court was not whether DHS could rescind DACA, but rather, whether the agency followed proper procedures in deciding to end DACA. Justice Roberts focused on the Elaina Duke memorandum, in which, the former Acting Secretary stated that DACA was illegal and should be terminated because it made DACA recipients eligible for benefits such as Social Security, Medicare and the ability to work legally in the United States. [4]

In addressing whether the Agency complied with the procedural requirement that it provide a reasoned explanation for its action, the Court found it had not. Justice Roberts stated that,

“In short, the Attorney General neither addressed the forbearance policy at the heart of DACA nor compelled DHS to abandon that policy. Thus, removing benefits eligibility while continuing forbearance remained squarely within the discretion of Acting Secretary Duke, who was responsible for “[e]stablishing national immigration enforcement policies and priorities.” 116 Stat. 2178, 6 U. S. C. §202(5). But Duke’s memo offers no reason for terminating forbearance. She instead treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation.” [5]

 

The Department failed to provide adequate reasons for ending the program. The decision did not focus on whether the terminating DACA was legal, but rather how the agency failed to comply with the procedural requirement, that it provide a reasoned explanation for its action. Justice Roberts said,

 

“Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.”[6]

 

The three-circuit split in regard to DACA was ruled in favor of DACA recipients, and against the Trump administration. This decision provides temporary relief to the DACA recipients and allows them to continue to be protected from deportation. However, the Administration can attempt to provide a new justification for terminating the program. 

 

IV.          What Did the President Have to Say?

In response to this ruling, Trump tweeted,

“These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives. We need more Justices, or we will lose our 2nd. Amendment & everything else. Vote Trump 2020!”[7] 

While President Trump advocated for additional Justices in light of this monumental decision, former President Obama tweeted his enthusiasm. This program was implemented in 2012, under the Obama administration. Former President Obama tweeted,

“Eight years ago, this week, we protected young people who were raised as part of our American family from deportation.” “Today, I’m happy for them, their families, and all of us.”[8]

 

V.             Conclusion and What is Next?

This decision is monumental for DACA recipients. While the Court emphasized that this decision was based on procedural grounds, not the legality of DACA, the ruling allows temporary reliefs for hundreds of thousands of DACA recipients. It also sends the message that in this unprecedented time of chaos in our country, there remains some hope for our immigrant community.

 

 



[1] App. to Pet. for Cert. in No. 18–587, p. 97a (App. to Pet. for Cert.)

[2] See Memorandum on Rescission Of Deferred Action For Childhood Arrivals (DACA), https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca

[3] See Memorandum on Rescission Of Deferred Action For Childhood Arrivals (DACA), https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca

[4] Opinion analysis: Court rejects Trump administration’s effort to end DACA (Updated), June 18, 2020, https://www.scotusblog.com/2020/06/opinion-analysis-court-rejects-trump-administrations-effort-to-end-daca/

[5] 591 U.S. June 2018, 2020

[6] 591 U.S. June 2018, 2020

[7] President Trump’s tweet posed June 18, 2020 at 8:08 am.

[8] President Obama’s tweet posted June 18, 2020, https://twitter.com/BarackObama


TPS May Be Ending, What Can You Do?

  TPS May Be Ending, What Can You Do?   By Liliana Gallelli, Esq. and Christopher Kerosky, Esq.   A Court ruled this week that the T...