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

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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 (1^st 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 ( 4^th 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.

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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

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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.

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.

 

 

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[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

The Supreme Court DACA Decision: What Does It Mean for DACA holders and potentially for DAPA?

The Supreme Court DACA Decision: What Does It Mean for DACA holders and potentially for DAPA?  

By Christopher Kerosky

On July 18th, the Supreme Court ruled in favor of the DACA recipients and against the Trump Administration.  In short, it means immigrants with DACA can continue to renew their status and their work permits,and maintain their reprieve from deportation. 

And the decision might have even larger consequences for DAPA, the Obama Administration program that would have given 5 million immigrants with children born here a similar status, but was shut down by a lower court in 2015. 

The Decision.

The Supreme Court’s decision was 5-4, finding the Trump Administration’s termination of DACA “arbitrary and capricious”.  While this is not a final decision, it affirms the lower courts’ injunction requiring the administration to keep the program open for renewals. To read the decision: https://www.supremecourt.gov/opinions/19pdf/18-587_5ifl.pdf

“We do not decide whether DACA or its rescission are sound policies,” the chief justice wrote. “We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.” reads the opinion. 

Who can apply for DACA now?

For now, persons who already have DACA can continue filing renewals.  It is  recommended that applicants do so at least 150 days before their DACA expires.

Unfortunately, new applicants are still not eligible.  That means, young kids turning 15 who would have been eligible for this legal status, are now still subject to deportation.   

The legal battle over DACA continues.

On September 5, 2017, Donald Trump announced the rescission of the DACA program.  Those who have DACA status were to begin to lose their status on March 5, 2018, but a San Francisco District Court judge ordered the government to continue renewals.  While that case was pending, two other federal judges issued similar injunctions against Trump.

Earlier in 2018, the Administration asked the U.S. Supreme Court to expedite its review of these rulings but the Supreme Court refused.  In the meantime, the San Francisco judge’s decision was appealed to the Ninth Circuit Court of Appeals, which ruled against Trump. 

Two other circuit courts – in New York and the District of Columbia—have also ruled against the Trump Administration, issuing similar orders requiring the program to remain open. 

Technically what the Supreme Court has done is send back the case to the lower courts for further proceedings on the legality of DACA.  The Trump Administration does have a legal right to try again to justify the termination of DACA. 

In reality, the program’s fate will probably rest on the election and future legislation (See below). 

What about DACA legislation?

Last year, the House of Representatives passed the Dream and Promise Act, H.R. 6, by a vote of 237-187, pretty much along party lines. This bill, which would have given DACA recipients a path to residence, was never considered in the Senate.  Senate Majority Leader Mitch McConnell refused to let it come to a vote. 

Perhaps after the election, we will see a legislative solution for DACA recipients.

What about DAPA?

Interestingly, the Supreme Court’s decision could have implications for the termination of the DAPA program by a lower court in 2015.  DAPA would have allowed approximately 5 million parents of children born here to get status, a work permit and a reprieve from deportation.  While Trump is unlikely to revive DAPA, Joe Biden might now do so if he wins, and this Court decision might mean that it would survive court challenge – unlike the last time.

WHAT CAN YOUNG PEOPLE WITH DACA DO IF THE SUPREME COURT ALLOWS DACA TO END?

WHAT CAN YOUNG PEOPLE WITH DACA DO IF THE SUPREME COURT ALLOWS DACA TO END? 

This month, the Supreme Court will release its decision on whether the Trump Administration’s rescission of the DACA program was valid.  Hopefully the Court will do the right thing and DACA will survive. 

But what to do if DACA is struck down?  The following article contains some advice for current DACA holders.

Likely immediate impact for your DACA status:

If DACA ends, here’s how that would likely affect those who have DACA now:   

·       Current persons with DACA:  Previously issued work permits and DACA approvals would likely remain valid for their full validity period but then not be eligible for renewal.

·      Pending  DACA renewal applications:  Hopefully pending requests for renewal of DACA will be processed.

·      No new DACA renewal applications would be accepted.

Other Options for DACA holders.

There are not a lot of paths to permanent residence in our current broken immigration system, but here’s a few limited possibilities:

1.    Permanent Residence for DACA holders married to a US Citizen.

A 2013 Court decision opened a door for persons with DACA who marry a US citizen to adjust their status in the US.  This is limited to certain DACA holders without prior orders of deportation or other grounds for inadmissibility, and only after obtaining with permission to travel under DACA. 

Unfortunately, the Trump Administration stopped issuing the permits to travel in 2017.  But nonetheless, a lot of persons with DACA did get the travel permit (known as “advance parole”) during in the 5 years between 2012-2017.  If they are married to a US citizen, they can still get a green card through a process lasting only about six months, without a pardon, and without leaving the country. 

2.    Permanent Residence through the Pardon Process.

Even those persons with DACA who did not obtain a travel permit previously can still a green card if they marry a US citizen by applying for waiver known as an I601 pardon.  In March, 2013, the Obama Administration  implemented a rule that has benefitted many thousands of immigrants across the country.   The new regulation allowed spouses of US citizens to apply for their waivers of the 10-year penalty for unlawful presence inside the US.  In November of 2015, President Obama expanded it to spouses and children of permanent residents.  Before, undocumented spouses who came here without a visa risked being barred for 10 years from the US if their waiver was denied. 

Anyone eligible for an I601A waiver should apply now as this process may soon get more difficult or even be eliminated altogether by Trump. If you have DACA and you are otherwise eligible, consult a lawyer first to make sure there is no problem returning.

3.    Other applications through family or work.  

It is not common, but if there are existing petitions previously filed by close family members (e.g. U.S. citizen parents or siblings), there may be circumstances where these petitions can still be used to obtain permanent residence for the DACA holder, especially if DACA was obtained before the age of 18.  But check with a lawyer before you pursue this.

Likewise, in limited circumstances, an employer may be able to sponsor a DACA-holder for a green card through work, a process known as PERM.  But this would usually require that the DACA-recipient have no unlawful presence after age 18.  And the PERM process is not an easy one; it involves an established employer offering a market wage job requiring a college education and/or exceptional skills and then a recruitment process proving that no Americans want that job.  Especially difficult during a recession.   

4.    The U visa for crime victims

The U visa can be used by any victim of a crime to apply for status with the Immigration Service if they can show they were harmed by a crime occurring in the United States and cooperate with the U.S. authorities in trying to apprehend or prosecute the perpetrator.

To qualify for a U visa, a person must show that:

·       the person has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity in the United States;

·       the person … possesses information concerning criminal activity;

·       the person has been helpful to a Federal, State, or local law enforcement official, including police and/or a prosecutor investigating the crime.

The applicant must have suffered “substantial” harm as a result of the crime, although the crime can be emotional or physical. 

A solution for all DACA holders.

We should all support action in Congress to provide a legislative solution for those with DACA.  In June, 2019, the House of Representatives passed the American Dream and Promise Act of 2019. This bill cancels and prohibits removal proceedings against certain aliens and provides a path to permanent residence for DACA-eligible young immigrants. For more information or to sign a petition in support of a DREAM Act law, go to: https://action.unitedwedream.org/petitions/keep-the-deferred-action-for-childhood-arrivals-daca-program

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CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced law for over 25 years and has been recognized as one of the top immigration lawyers in Northern California for 10 years by “Super Lawyers”.  https://profiles.superlawyers.com/california-northern/san-francisco/lawyer/christopher-a-kerosky/358dc9f1-b1c2-46b5-80cc-6e9610b1cd43.html. 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.

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.

Aplicación pendiente de DACA: Quienes aplicaron por primera vez por el DACA y su permiso de trabajo continua en proceso podrán obtener status. Sin embargo, CIS no aceptara nuevas aplicaciones a partir de hoy.

Aplicación pendiente de DACA: Quienes aplicaron por primera vez por el DACA y su permiso de trabajo continua en proceso podrán obtener status. Sin embargo, CIS no aceptara nuevas aplicaciones a partir de hoy.
• Renovaciones pendientes de DACA: Las aplicaciones pendientes serán procesadas.
• Nuevas renovaciones de DACA: Los beneficiarios DACA que tienen permisos de trabajo con fecha de expiración entre el 5 de septiembre del 2017 y marzo 5 del 2018 podrán renovarlo por ultima vez. Las renovaciones deberán ser aceptadas por DHS antes del 5 de Octubre de 2017. Todavía no se sabe si el DHS otorgará renovaciones por el período completo de dos años o un período más corto.
• Aplicación pendiente de DACA: Quienes aplicaron por primera vez por el DACA y su permiso de trabajo continua en proceso podrán obtener status. Sin embargo, CIS no aceptara nuevas aplicaciones a partir de hoy.
• Renovaciones pendientes de DACA: Las aplicaciones pendientes serán procesadas.
• Nuevas renovaciones de DACA: Los beneficiarios DACA que tienen permisos de trabajo con fecha de expiración entre el 5 de septiembre del 2017 y marzo 5 del 2018 podrán renovarlo por ultima vez. Las renovaciones deberán ser aceptadas por DHS antes del 5 de Octubre de 2017. Todavía no se sabe si el DHS otorgará renovaciones por el período completo de dos años o un período más corto.
• Aplicaciones para permisos de viaje: No se aprobaran aplicaciones de permisos de viaje (Advance Parole) para quienes tienen status DACA. Todas las aplicaciones pendientes serán cerradas administrativamente y se devolverá el dinero abonado.
• Permisos de viaje aprobados: Aquellos permiso de viaje previamente aprobados generalmente serán honrados, aunque DHS conserva la autoridad para negar la admisión y/o revocarlos cuando lo considere apropiado.

El memo publicado por DHS lo puede encontrar en: https://www.dhs.gov/ne…/2017/…/05/memorandum-rescission-daca.
Debemos entre todos apoyar al congreso a que pasar una solución legislativa permanente para beneficiarios DACA. La mejor de estas propuestas es el Dream Act de 2017. Para mayor información visite: