When interviewing clients who are seeking an immigration benefit, it’s sometimes difficult to get the knowledge and facts needed to properly assess a case. In some instances, the client isn’t always forthcoming with what they are willing to disclose, or may not recall all the facts, or simply doesn’t know the answers to the questions being asked. But with immigration law, it’s necessary to obtain the facts when advising clients and determine whether filing an application with USCIS can expose them to harm’s way via the widening deportation net. According to the English philosopher Francis Bacon, knowledge is power. Therefore, if I’m left with more questions than answers after interviewing a client and worry about the possible outcome of a case, I often suggest we submit a Freedom of Information Act (FOIA) request.
FOIA requests can be made to the Department of Homeland Security’s sub-agencies – USCIS, CBP, and/or ICE, depending on the information being sought after and it’s a great tool to use when unsure about a client’s immigration history. Information can be obtained that sheds light on a variety of things and pretty much removes the ambiguity from facts relevant to the case. For example, when making a FOIA request to USCIS, I can find out how a client came into the country, what was said on previous applications when trying to apply for a benefit, and if they possibly have an immigration benefits out there they didn’t even know about.
One of my earliest FOIA requests resulted in a client finding out she had been granted asylee status as a young teen. Prior to receiving the information from the FOIA request, this same client had pretty much lived in fear because her Temporary Protective Status had been expired for over two decades. Finding out that she was granted asylee status allowed us to adjust her status to legal permanent residency and after waiting four years, she naturalized as a US citizen. If we had never made that FOIA request, she would most likely still be living her life in the shadows.
FOIA requests made to any of the sub-agencies can be very specific and targeted or can be broad. I often make very specific requests to CBP to see if a client was placed into expedited removal proceedings prior to filing an I-130, alien relative petition. Those results typically get responded to within 4-6 weeks. A broader request would be requesting the client’s alien file, often referred to an A-file, such as the request I made for the client above who had asylum status. This file contains all the information and documents DHS maintains on a non-citizen.
The files are fascinating to look at – they contain all collected documents obtained from the non-citizen, as well as statements and notes written down during interviews by various immigration officers, as well as memos and correspondence. Complete A-files can take over 6 months to obtain so I only request them when necessary. Whenever a client is vulnerable to being inadmissible or deportable though, it is crucial to obtain whatever information may be out so there to properly assess a case. I wholeheartedly agree with Francis Bacon’s saying that knowledge is power; fortunately, the FOIA process is available to gather some pretty powerful facts when taking on a case with red flags.
One of the most satisfying parts of providing legal immigration services is seeing immigrant clients (like the ones pictured above) reunify with their family members because of the family-based immigration services we provide at Catholic Charities. Recent arrivals to Ithaca include parents, minor children, adult children, siblings, and spouses who have successfully emigrated from various countries from all corners of the world. In some instances, the family-based petitions took 5-10 years to process.
Family reunification has held a revered spot in our immigration policy since the Immigration & Naturalization Act of 1965 was signed into law by President Johnson. The 1965 Act ended an immigration-admissions policy based on race and ethnicity and replaced it with a system that would focus on both keeping immigrant families intact and attracting skilled labor to the US. Since then, about two-thirds of immigrant visas have been family-based. Unfortunately, the White House recently threw its support behind the RAISE Act which seems to give an unfair advantage to highly skilled immigrant workers and an unfair advantage to immigrants who hope to emigrate to the US to reunify with family members.
Everyone pretty much agrees that our immigration system is broken and needs to be modernized but it shouldn’t be done at the expense of reunifying immigrant families. For several years, economist/professor/author Harriet Duleep has been making compelling arguments in research and press articles, as well as in front of Congress that skilled immigrants have families too. She contends family visas complement high-skilled visas – the two shouldn’t be mutually exclusive. Duleep also reasonably questions that when someone like an emigrating scientist is considering which country to move to, wouldn’t there be a preference to relocate to where family members, including siblings, parents, and adult children can also live, over a country where only certain family members are welcome?
Research shows that there are definite advantages when an immigrant family is allowed to reunify. The newcomers can pool their resources with family members who emigrated before them so things like childcare and elderly care become less of a burden on the wage earners. Families who are reunified can also support each other financially by increasing access to credit or referring a relative to a current employer for a job. These are tangible benefits that can lead the family toward upward mobility and integration.
The emotional well-being of immigrant families who are reunited after years of separation is another advantage that is often overlooked. In my own work, I have seen the emotional supports that attribute to the well-being of family members who emigrated to the US first when family members arrive. I have clients whose siblings have finally made it to the US after 10-15 years of separation relieving the stress and guilt of those who emigrated first. Many arrived into the country as refugees and waited years to be reunited with family members who stayed behind in countries that remained war-torn, had no health care systems, or had to deal daily with food insecurity. This definitely took a huge toll on their emotional well-being. Under the RAISE Act, siblings would no longer be afforded the opportunity to emigrate to the US.
Immigrant parents sometimes petition for their children one by one because the family doesn’t have the resources it needs to bring more than one child at a time. Sometimes the minor children left behind turn into young adults by the time the parents save the money needed to file a relative petition with USCIS. Under the RAISE Act, adult children are another group who wouldn’t be able to come to the US even though as young adults their kinship ties are as strong as they were when they were still minors.
Although this proposed piece of legislation isn’t expected to garner the Congressional support it will need to be enacted into law, it does seem inevitable that there will continue to be a lot of advocating for some type of reform that will result in deep cuts made to the number of immigrants who receive family-based visas. Hopefully the debate will shift and voices like Duleep’s, that are knowledgeable about the advantages of keeping immigrant families intact, will be taken into consideration. She and others have even called for raising the quotas for employment or skill based visas. With any luck, this thinking will prevail when the current immigration system gets overhauled instead of modernizing it at the expense of immigrants looking to reunify with their family members.
A former client was recently riding on a bus through Rochester and was asked to produce his green card by Customs and Border Patrol. This isn’t surprising since Rochester is located within the “Government’s 100 Mile Border Zone.” The Border Zone, which is an area that is up to 100 miles from any external U.S. border, is an area that the Supreme Court has deemed a “reasonable distance” in which it is lawful to engage in border security operations, including warrantless searches. It allows for CBP to briefly detain travelers in order to ask them a brief question or two and possibly produce a document evidencing a right to be in the U.S.
Many immigrants, such as my former client, have legal status to be in the U.S. but fail to carry their documents. In his case, he was a refugee who had adjusted his status to legal permanent resident (LPR) several years ago but didn’t carry his green card in his wallet. Fortunately, he was only given a stiff warning about violating the law and was told he must carry his green card from that point on or be fined. Over the years, there have been numerous accounts of incidences where immigrants traveling in cities north of Ithaca (Buffalo, Syracuse and Rochester) were stopped resulting in various outcomes ranging from receiving a warning or feeling intimidated to being detained for further questioning or even arrested. Given the era we are now living in where border security and anti-immigrant rhetoric seem to be part of the federal government’s discourse, it’s important more than ever for immigrants who travel through or anywhere near the border zone to be prepared to produce some ID regarding their admission into the U.S.
The law that the CBP agent was referring to when questioning my former client is very specific in stating every foreign national, age 18 or older, has to carry documentation of their immigration in the U.S. This pertains to ALL foreign nationals, age 18 or older. In other words, it doesn’t only pertain to those traveling in the 100 Mile Border Zone.
Since President Trump and his administration have serious intentions in shaking up the status quo when it comes to anything or anyone immigrant-related, it is advisable for foreign nationals who are in the U.S. to comply with the law in regards to carrying their documents. There are many variables since foreign nationals enter the U.S. on all types of Visas as immigrants and non immigrants but the bottom line is they need to prove they have been inspected at the border and their length of stay hasn’t expired. Here is some practical advice for those who are here as LPRs and those who are inspected and admitted but do not have LPR status.
- LPRs need to carry their actual green card. For those who have entered the country with an I-551 stamp on their passport and are waiting for their green cards to be produced, they need to carry their passport. For those who have expired green cards, Form I-90 needs to be filed with USCIS to get the card renewed, and once a receipt for filing is obtained, the local USCIS office can provide a sticker onto the expired card that shows the green card is valid for an additional year. For lost green cards, form I-90 can also be filed to replace the green card and once a receipt is received, a temporary ID can be made again at the local USCIS office.
- Foreign nationals inspected and admitted into the U.S. who do not have legal permanent residency also need to carry documentation regarding their immigration status. Immigrants enter the U.S. for a myriad of reasons including tourism, work, study, research, or seeking asylum. They also may enter as refugees or have been granted temporary protected status. Whatever the case may be, the documents made available upon arrival or after they have applied for some type of immigration benefit need to be carried since this is required by law. Examples of this would be carrying a copy of a valid, unexpired I-94 admission record, Form I-551, a valid, unexpired employment authorization document (work permit), or a foreign passport showing a valid CBP admission stamp.
One more thought about the 100 Mile Border Zone. Since becoming naturalized as a U.S. citizen doesn’t provide immunity from being checked by CBP and being questioned about U.S. citizenry, it is advised that naturalized citizens also carry some form of proof of becoming U.S. citizens. The most convenient proof would be a U.S. passport card.
Given the high cost to replace a stolen or lost green card, foreign passport, or work permit, it is understandable why people carry a photo copy in their wallet and keep their original safely stored at home. But it is the law, and not having the proper documentation available at all times can result in a misdemeanor with real consequences.
Five days after taking office, President Trump signed an Executive Order entitled “Enhancing Public Safety in the Interior of the United States.” This move signaled a dramatic shift in executive priorities by greatly expanding the number of undocumented immigrants targeted for deportation.
This post will describe important features of the Executive Order, and link to legal resources that will help immigrants understand certain rights that apply when they are approached by federal agents or processed for deportation.
The Immigration Enforcement Framework
President Trump campaigned on a promise to deport up to 11 million unauthorized immigrants living in the United States. In line with that pledge, the Executive Order calls for hiring an additional 10,000 immigration agents, potentially doubling the federal government’s enforcement capacity at a cost of nearly 15 billion over the next 10 years.
The Executive Order also enlists cooperation from state and local agencies under “287g agreements,” referring to the statutory provision that authorizes state and local officers to perform the functions of immigration agents. At the same time, the Executive Order threatens to withhold federal funds from “sanctuary jurisdictions” that prohibit state or local cooperation with immigration agents to the extent permitted by law. That provision was recently put on hold by a federal court citing constitutional concerns.
Redirecting Enforcement Priorities
The Executive Order also resurrects the “Secure Communities Program,” which lays the groundwork for deporting significantly more immigrants compared prior years. Whereas the Obama Administration focused immigration resources on removing gang members, drug traffickers, and other violent criminals, the new Administration is targeting any removable immigrant deemed a “risk” to public safety.
The last three months have already seen a dramatic uptick in enforcement actions taken against removable but otherwise law abiding immigrants. Compared to the same period last year, the number of immigrants arrested by federal agents between January and March increased by a third. Immigrants with no criminal record are being deported at twice the rate they were before the Executive Order went into effect, and in some jurisdictions, the rate is seven times higher.
Moreover, individuals who’ve had minor brushes with the law, but who might have been permitted to remain in the country previously, will more likely be deported now that Attorney General Jeff Sessions has directed federal prosecutors to initiate more federal prosecutions, and charge defendants with the highest eligible crime. Immigrants who might have been released from custody as an exercise of prosecutorial discretion will now be charged with a crime and subject to removal under statutory provisions that align with the enforcement priorities set by the new Executive Order.
Finally, federal agents are making arrests in situations that are especially traumatizing, in and around “sensitive locations” that were previously considered out-of-bounds. A victim of domestic violence was arrested in court after seeking a protective order against an abuser. A father of four was arrested after dropping one daughter off at school, while another in the back seat watched as federal agents pulled him from the car. Just this week agents entered an elementary school seeking to interrogate a nine-year old child. In February, a critically ill mother of two was transferred to a detention facility after federal agents removed her in hand-cuffs from the hospital where she was receiving treatment for brain cancer.
A groundswell of criticism from Judges, victim advocates, and children’s rights defenders prompted Congressional Democrats to introduce a measure that would ban “sensitive location” arrests. That bill is unlikely to pass, but federal agents who made these arrests were already violating an internal operating policy. That policy was either not being enforced, or was not communicated through the rank and file, and the President’s Executive Order is a signal that federal agents will not be pressured to abide by it going forward.
Dreamers Left in Limbo
Despite its boundless reach, the Executive Order nonetheless leaves some immigrants in a state of limbo, wondering whether legal policies that protected them from deportation under the Obama Administration still apply.
This is the case with “Dreamers,” who are shielded from deportation under the Deferred Action for Childhood Arrivals program. That program authorizes immigrants who were brought to the United States as children to live in the open without fear of being deported back to a country many have no memory of. Upon registering with the government, Dreamers who meet certain requirements are authorized to work, attend college, obtain a driver’s license, and otherwise pursue their goals as fully integrated community members. Because they come here at such a young age, Dreamers grow up alongside American peers, and in many cases have American siblings.
President Trump has so far wavered on promises he made during the campaign to dismantle DACA once he took office, and has aside a draft Executive Order that reportedly repeals the program. Still, the Executive Order he did sign declares that the United States will not continue to “exempt classes or categories of removable aliens from potential enforcement.” How this applies to Dreamers is unclear. Meanwhile, ICE has publicly reaffirmed its authority to arrest any removable immigrant, including Dreamers, and under questionable circumstances has in fact detained a handful of Dreamers who are now facing deportation.
Know Your Rights
Every person in the United States is entitled to basic rights under the Constitution, even if they are in the country without authorization. Immigrants who are approached by immigration agents or involved in removal proceedings should seek the assistance of a qualified attorney. In the meantime, immigrants can learn about their rights and take steps to protect themselves through online resources published by the ACLU, the National Immigration Law Center, the Catholic Legal Immigration Network, and other advocacy groups.
These resources explain what to do when ICE agents come to your door, how to distinguish a *judicial warrant* from an *immigration warrant,* and why the difference between the two is so important. They also provide guidance on how to prepare an “emergency planning checklist” to ensure that family members are provided for when a parent or caretaker is deported. Additional information is also covered.
Moreover, earlier this year, New York became the first state in the country to provide free legal representation to immigrants who are detained pending removal. Though immigrants facing deportation do not have a federal constitutional right to an attorney, the Liberty Defense Project will nonetheless provide low-income immigrants with the help of an attorney through a state-funded partnership with private organizations. The initiative is a state-wide expansion of a similar program already operating in New York City, and three upstate immigration courts.
The program is likely to have a discernible impact on the lives of immigrants, and strengthen broader community foundations. More than 4400 immigrant were deported following removal proceedings last year in New York alone, but studies have shown that the help of an attorney dramatically increases the likelihood that an immigrant will be allowed to remain in the United States. In one example, only 3% of unrepresented immigrants avoided deportation, but the help of an attorney increased that likelihood by as much as 1000%.
The program is also expected to yield important social and economic benefits. “No family should face a legal proceeding without an attorney,” lawmakers said, “and no family should be ripped apart because they couldn’t afford counsel.” Keeping immigrant families together also reflects sound economic policy, law-makers argue, given the opportunity for “increased tax revenues and less need for families left behind to draw on the social safety net.” Employers will also avoid the avoiding the loss of productivity that results when their employees are detained and deported, and the consequent need to identify and train replacement workers.
The legislature has allocated $10 million to the program which, in addition to legal defense, funds case management, job training, and English language classes. The program goes into effect this Fall.
I recently met with a woman who accompanied her mother to my office to discuss the process of naturalization. The mother, a longtime, elderly resident, immigrated to the U.S. over 40 years ago from Honduras and has never taken the steps to become a U.S. citizen for personal reasons. Her plan early on was to raise her family in New York so her children could get a good education. She had envisioned someday returning to her home country to retire and didn’t see how becoming a U.S. citizen was necessary. Being a legal permanent resident suited her needs – it allowed her to work in the U.S. and her Honduran passport, along with her green card, was sufficient when she wanted to travel abroad. Four decades later, she is taking the steps to naturalize. When I asked why it was important for the mother to become naturalized now, I knew the answer. The decision was being motivated by fear.
Since the 2016 presidential election, many immigrants seeking legal services across the country seem to have fear being the driving force as to why they are seeking out immigration benefits. I think of it as fear-based (as opposed to family or employment-based) immigration. Prior to the election, a sense of fear seemed to engulf immigrant communities across the country, including those in upstate New York. Once the President’s Executive Orders were issued and it was revealed how the deportation net was widening, reality set in. Those orders not only had a chilling effect on immigrants who are in the country undocumented, it has also placed fear into the hearts of many who have legal residence.
Both pre- and post-election, I have seen an uptick in clients who are applying for immigration benefits out of fear similar to the Honduran national above. After spending many years of being unworried about their immigration statuses or documents, some clients are making appointments trying to naturalize as quickly as possible while others are seeking assistance to obtain citizenship certificates or replace green cards they misplaced years ago. U.S. citizen spouses are stopping in to inquire about the fees associated for getting their undocumented spouses “papers” even though they could have completed applications to legalize them prior to the new administration.
What used to be routine appointments now have a sense of urgency like I have never seen before. And the concerns I am addressing upon completing applications that have no red-flags makes it clear that a profound sense of fear has already settled in. Even when I meet someone who has had no arrests, is gainfully employed, and pays their taxes, I know they leave my office with lingering questions as to whether or not their applications might be denied and they could be deported.
But to a certain degree, fear-based immigration has been around a long time (e.g., when immigrants used to wait for appointments with INS before it was abolished back in 2003). I witnessed first-hand how Miami’s INS office had a take-no-prisoners approach when it came to serving the long line of Haitians and Cubans waiting to apply for immigration benefits back in the 90’s. They, too, feared their applications might be denied and they could be deported.
Fear in the immigrant community can either be stoked or diminished by many factors such as changes in immigration law, changes in elected officials, and/or changes in the public discourse surrounding immigrants and national security. Even though the deportation net is widening, it’s important to point out that for those who are seeking green cards or applying for naturalization, laws are in place that govern these processes. With that said, it’s more important than ever for anyone seeking an immigration benefit to have their cases properly screened and vetted and to make sure the person assisting them is authorized to give legal advice.
The other day I accompanied Carlos across the state (north of Albany) to attend an interview he had scheduled with USCIS. The day had so many ups and downs – similar to his immigration experience – but the coveted words, “your application is approved,” was the final outcome. He left there a legal permanent resident and was told his green card (which is valid for 10 years) would arrive 7-10 days in the mail.
Carlos came to the US as a teenager in the 1980 with other family members and over-stayed his visa. He lived in different parts of the country but mainly in the south. A marriage would eventually bring him to upstate New York and the need to change his status from conditional resident to legal permanent resident would bring him to Catholic Charities. His case was a complex one; he had a deadline quickly approaching where form I-751 (a petition to remove the conditions from his green card) needed to be filed, he was separated from his spouse, and was having difficulty obtaining any evidence that showed they had a bona fide marriage. He came to our office very stressed because he had contacted an immigration attorney and was told he would need $5000 as a retainer for them to take his case.
Offering affordable legal services is one of the many services we are able to offer to Ithaca’s immigrant community. We serve many clients who work as dishwashers, cooks, housekeepers, cleaners, and servers. Many work in entry level jobs for low wages. Therefore, obtaining legal counsel with a law firm is way beyond their household budgets and they often don’t have access to loans or family members who can help off-set the fees. But they still need to have legal representation. Even though Carlos had contacted a reputable law firm, we also come across clients who are sending money to dishonest immigration consultants, also known as notarios, and aren’t only paying high fees but are being scammed on top of that.
Fortunately for Carlos, he had a friend who knew about our legal immigration services and advised him to give us a call. We offered him a sliding scale fee based on his salary which saved him several thousands of dollars. If you are in need of legal immigration services, or have a friend who is in need, contact our program at (607) 272-5062, x11 for more information.
This past week I had legal consultations with 3 different women, all US citizens, who came in with questions regarding the fiancé petition process stating they had fallen in love with a foreign national they met online and now wanted to marry. Demographically, these women had very little in common; they were from different social classes, different ethnic groups, and were from different age groups (one was in college, another was close to retirement). But their stories were eerily similar when they described how quickly they fell in love via the internet, how quickly they were proposed to, and how quickly their new loves were in prompting them to start the fiancé petition process. I realized after the 3rd consultation that I had repeated the catchphrase often used by the Better Business Bureau, “if it sounds too good to be true, it usually is” to all 3 of them.
I have done my fair share of K-1 nonimmigrant visas (also known as the fiancé/fiancée visa) and some of them have turned into what appears to be good marriages. On the other hand, last year I started seeing a trend in how many clients were involved in internet dating and how many of them were suffering the consequences of not knowing their partner well enough before marrying, not knowing they were being scammed or not knowing they were entering into an abusive relationship. I saw so many that I posted this blog. More and more I am either getting phone calls or having meetings with women who have been chatting online with foreign national men (often with a big age different) and want to bring them to the US to get married. They are willing to throw caution to the wind mainly because they are tired of being single and are not only willing to sponsor them in getting a green card but are agreeing to pay the application fees. Reflecting back on this week, I feel compelled to write yet again about internet dating and green cards and how this combination often results in marriage scams and broken hearts. Not always, but often.
Internet romance and marriage fraud scams are so prevalent now that almost every US Embassy issues a warning similar to this …… “United States citizens should be alert to attempts at fraud by persons claiming to live in (insert name of country) who profess friendship or romantic interest over the Internet.” Just a brief google search brings up warnings from several US embassies including those located in Algeria, Ghana, Russia, the Ukraine, France and Russia. And some of those warnings included a similar adage to the one above, “if it’s too good to be true, it probably isn’t true.” It’s interesting being a legal practitioner – ethically it is within the scope of my daily work to provide someone with the steps needed to bring a fiancé/fiancée to the US. But morally, I feel like I have an obligation to point out what the US embassies around the world have posted on their websites such as this pretty thorough warning from Algeria. While this can come across as judgmental, I still feel like it is my moral obligation if the story I am hearing from the US citizen petitioner sounds too good to be true.
Looking back on these consultations, I feel empathy for these women because all 3 of them are strongly convinced they have found genuine love. I hate to be the skeptic and the bearer of bad news but I feel it is my duty to give them a reality check and point out (like the embassies do) that if it’s too good to be true, it probably isn’t true. Even though I provided a link above to the Algerian Embassy where they gave the following advice, it’s worth highlighting here, “Often, the marriages end in divorce in the United States when the foreign national acquires legal permanent residence (“green card”) or U.S. citizenship. In some cases, the new American or permanent resident then remarries a wife he divorced before, around the same time as entering into a relationship with a sponsoring American citizen.” I have chosen to emphasize those two sentences because sadly, I have seen this exact same scenario play out in Ithaca so it’s advice worth paying attention to.
Part of the legal immigration services provided at Catholic Charities includes preparing and filing Provisional Waivers – often referred to as “stateside waivers.” We typically prepare these for spouses of US citizens to seek a waiver of inadmissibility for the three and ten-year bars due to unlawful presence and to remain in the US (stateside) while that waiver is being considered.
For the most part, a husband or wife entered the US without going through a checkpoint, often just walking across the border, and by doing that, avoided being inspected. Without that inspection, immigration law precludes them from applying for residency in the US through the adjustment of status process; instead they have to return home and go through consular processing. While the provisional waiver process has its flaws, most legal practitioners agree that there are still more pros than cons when assessing it.
There was a lot of excitement when the provisional waiver process was announced in January, 2013 by the former Secretary of Homeland Security Janet Napolitano. Not long after, the excitement died down as flaws were quickly exposed in how they were being adjudicated and processed and unfortunately, that criticism remains today. However, prior to that announcement, immigrants seeking a waiver for unlawful presence were faced with leaving the US for a considerable amount of time (typically 6 – 12 months or more) while it was being considered at their home country’s embassy and this created an enormous amount of stress on them.
For those who didn’t want to face the threat of a permanent bar that could have been created as a result of leaving the US, few options remained beyond staying in an undocumented status or seeing if there was an outside chance they qualified for another immigration benefit such as TPS or asylum. And for those who decided to go forward with consular processing had to deal with the fact that they could be stranded outside of the US with no legal way to return to the lives they had created here. They also knew they had no choice but to endure whatever emotional strain or financial hardship came their way as a result of returning to their home country, sometimes a country they were afraid to return to because of gang activity and other violence.
Recently, we have been seeing an increase in immigrants who are married to a US citizen and are only now seeking to apply for consular processing (even though the provisional waiver has been available since 2013). I often hear “I heard of someone who got their green card this way” so word on the street is the waivers are getting approved to some extent. Plus, since the provisional waiver is either granted or denied prior to leaving the country, they feel less anxious about the process. Not only is their required time out of the US shortened and therefore doable, they know prior to leaving that they will not be barred from reentering the US due to their time accrued here in an unlawful status.
Provisional waiver applications are still getting mixed reviews on how USCIS is adjudicating them and there has been valid criticism surrounding them including the high application fee, the relatively high denial rate, and the fact that there is no appeals process for denials. But the fact that USCIS tried to create an option for immigrants with unlawful presence to at least remain stateside while their waiver is being considered and save them the anguish of returning home to face many unknowns is still notable. Despite its shortcomings, I still find applying for a provisional waiver to be worth the risk for many clients I am coming across. But I also have my fingers crossed USCIS will work harder towards figuring how to correct its flaws.
I recently met with a client who had received a notice from USCIS stating it was time for him to file an I-751 form in order to have the conditions removed from his green card. Individuals who enter the US based upon marriage to a US citizen or permanent resident usually enter as “conditional residents.” This means that their status in the US is conditional upon their marriage and is valid for two years. After the two-year period, USCIS basically takes another hard look at the couple’s marriage to see if it was a sham or fraudulent marriage (a.k.a. green card marriage) or to see if it was bona fide and the couple entered into their marriage in good faith.
The I-751 form, Petition to Remove Conditions on Residence, is typically signed and filed by the married couple; it is a joint endeavor. For those foreign national spouses who remain part of a couple, the process can be somewhat complex but it is still straight forward. However, for those whose marriages didn’t pan out, it can be a little trickier. As a result, the two-year expiration date deadline can be quite a stressful time if a foreign national spouse ends up a foreign national divorcée or divorcé. This was pretty much the circumstance of the client I mentioned above; his marriage had ended in divorce and he was worried he would now be deported.
When I first meet with conditional residents prior to preparing their I-751, one of the first questions I ask is if they are still with their US citizen spouse, and if not, if they are separated or divorced. As we all know, the divorce rate in the US is relatively high – depending on whose statistics and what demographics you are looking at, it can be up to 50%. While I don’t know the statistics for divorce rates between US citizens and foreign nationals, I’m sure it is also relatively high; why should those marriages be any different? But contrary to popular myth, conditional residents will not automatically be deported or have to fear living in the US undocumented if their marriages don’t work out. Fortunately for those who entered into their marriage with good faith but whose marriages ended up with a divorce, there is a legal avenue for them to still become legal permanent residents.
The I-751 provides a hardship waiver that allows divorced conditional residents to get the conditions removed from their green cards. By checking the box that states “I or my parent entered the marriage in good faith, but the marriage was terminated through divorce or annulment,” the foreign national spouse is able to file form I-751 without their spouse’s help. I have represented several divorced clients who successfully apply for a waiver and are now legal permanent residents. But checking the box is the easy part, the real work is providing solid evidence that the terminated marriage was indeed entered into in good faith and it was not a green card marriage.
I often remind my clients that uncovering sham marriages is a top priority for USCIS and they will take any opportunity if they think any fraud was involved, including the I-751 process or even when a legal permanent resident applies for citizenship. Therefore it is crucial for conditional residents to collect and provide the evidence needed to support their claim that they attested to when checking the waiver request that states “I entered the marriage in good faith.”
The burden of proof required by the I-751 is quite steep and a critical part of that burden is providing bona fide evidence that the marriage was real. My advice for all conditional residents, regardless if they are filing jointly with their spouses, or applying on their own and requesting a waiver, is to seek legal advice and representation. This process can be tricky and a legal advocate can greatly assist them in presenting a solid case, writing an affidavit for those needing a waiver, and preparing them for their green card interview.
On November 20, 2014, many people watched President Obama make a formal announcement regarding the administrative relief he was willing to provide to help 4.5 million undocumented immigrants come out of the shadows and apply for work authorization and protection from deportation. He offered up deferred action to those who qualify through an expanded DACA program and also a new program, Deferred Action for Parental Accountability (DAPA). The new action – DAPA – will basically shield immigrant parents from deportation.
While this announcement is a far cry from Comprehensive Immigration Reform, it is a step in the right direction. It is also a cue for millions of people in the country to get busy. From the staff at DHS who will figure out all of the nuts and bolts in order to implement the executive order to USCIS who will have to hire staff to adjudicate and process the applications. And not to mention the legal practitioners who will have to ramp up services to prepare and process those 4.5 million applications to the actual beneficiaries (the immigrants) who will have to collect the evidence to prove they qualify for relief. It’s time for anyone who is directly affected by this announcement to get busy.
As I listened to the commentary, analysis, and debate that followed Obama’s executive action, I immediately started thinking about what needs to be done at our agency in order to prepare for an unknown number of people who might come to us for legal assistance. I also started thinking of a “to do list” in my head; a list that started with getting trained on both programs. My to do list also included the need to network with others legal providers upstate and to also team up with Gary Liao, ONA Legal Counsel, so he can assist our efforts with outreach and free legal consultations. Overall, we need to be ready to pre-screen potential clients as soon as possible and then give them their own to do list – a list they hopefully already have a head start on.
While Catholic Charities will be offering direct services and representation for both DAPA and the expanded DACA program, the following information is for potential DAPA applicants.
DAPA – what are the qualifications?
- Parents of a US citizen or legal permanent resident child as of November 20, 2014 – “child” can be a minor or adult and single or married;
- Continuously resided in the US from January 1, 2010, to the present;
- Physically present in the US on November 20, 2014; and,
- Have not been convicted of a felony, significant misdemeanor, or 3 or more misdemeanor offenses.
The DAPA “ To Do List”
- Save money for preparing and filing your application.
- Get proof of who you are – obtain birth certificate, passport or other photo ID, or a matricula consular or other type of government-issued ID. Get foreign documents translated into English.
- Gather proof you are the parent of a child who is a US citizen or LPR – this can include your son’s or daughter’s birth certificate or US passport, naturalization certificate or green card. Get foreign documents translated into English.
- Gather proof to show you have been in the US continuously since January 1, 2010 (this can include financial records, school records, medical records, letters, bills, rent payment receipts, passport with admission stamp, copies of money order receipts, bank statements, filed income taxes).
- Gather any criminal records you have. We suggest you obtain a certificate of disposition for any arrests you have.
- Get pre-screened – Catholic Charities is offering free legal consultations to pre-screen potential DAPA applicants. Call (607) 272-5062 to schedule an appointment.