A draft of proposed immigration reform legislation has been released by the Gang of 8, that bipartisan group of U.S. Senators who have been attempting to style a legislative solution to our society’s current immigration related ills.  The details contained in the bill may or may not be of much relevance for the moment because A) the proposal is NOT law yet and B) the actual legislation signed into law, if and when that happens, may very well bear little resemblance to the draft bill released to the public this week.

In general, most expect any new law to include, in one form or another, a path to legalization or citizenship, the payment of a hefty fine for “path” applicants”, an expanded supply of work visas, and enhanced border security.  For the path to legalization aspect, December 31, 2011 has been designated as the magic physical presence date, before which applicants must have arrived in the U.S. in order to qualify.  But again, this is only a proposal!

For the debate that is to come, two of the biggest questions the public can expect to be tossed around, and in the most political of ways, are:  Is this proposal an “amnesty”?  What will a “secure border” mean under the new law?  As to the first question, the hard core among the Republican lawmakers strongly disfavor any proposal that involves an amnesty or an excusing of unlawful behavior…..or at least not until “we have secured our borders”.  But let’s face it, if there will be a path to legalization for individuals present in the U.S. without legal status, it will involve, by definition, an excusing of unlawful behavior – although applicants will likely have to pay a monetary fine and comply with other requirements.  Thus, a far right lawmaker might not be able to avoid being seen as a loser in the end, if they continue to insist that “amnesty” can play no role whatsoever in any new immigration initiative.

If a path to legalization, or amnesty, will be conditioned on having a “secure border” in place, one wonders what has to take place in order for the border to be considered “secure”.  Certainly, for a lawmaker to seeking to make a name for him or herself, it will not be too difficult to keep upping the requirements that would comprise a “secure border”, and thus find a pretext to put a wrench into any draft proposal.

In the end, it appears there is almost no one in Congress who believes the solution to the problem of the undocumented is to try to deport 11 million folks.  It’s just a matter of whether, and when, there are enough politicians in Congress that have the political cover to support what will add up to, for all intents and purposes, an amnesty.

PUBLISHED April 15, 2013 – “IMMIGRATION LAW FORUM” Copyright © 2013, By Law Offices of Richard Hanus, Chicago, Illinois

For the past two decades as a practicing immigration lawyer, I have come to be a student of everything immigration law – the actual laws, the way the laws are applied, the mindset of the powerful decision-makers who preside over immigration or deportation proceedings, the psychological/sociological state of the wide spectrum of immigrant groups I represent, and of course, the politics.  About today’s politics I know this - the significant losses sustained by Republican candidates in our most recent elections, including Mitt Romney, are in large part attributed to the views they espoused when it came to immigration.   Whether it be “kick em all out” promises, or “they will leave by attrition” observations, their message – right or wrong – did not resonate with enough of our population to get them into, or keep them in, office.  Now comes the Gang of 8, that bipartisan group of U.S. Senators who over this past weekend proclaimed to have reached agreement on a major framework to address our nation’s immigration problem, including border security, a practical work visa program and of course, a path to legalization for our nation’s 12 million undocumented.  Now, it’s up to legislators in both houses of Congress to write the legislation, debate it, and present something acceptable to the President to sign.  It is hoped that this last step will be reached by Thanksgiving.

Between Points A and B:  In the months ahead I can assure you our nation will witness more of the same political drama and hyperbole we have grown accustomed to when an Obama backed legislative initiative is being advanced i.e. for a Republican politician to show their true Republican bona fides, they must, without exception, oppose any measure advanced by the President, no matter how much sense it might make.  Why?  Because – per the tea party leaning mantra – if it’s being pushed by Obama, the initiative must be evil and defeated.  Consistent with this principle, many of our nation’s major Republican players, and especially wannabe players, will exhibit noteworthy levels of posing, backpedaling, kicking, and yelling as the legislative process moves toward actually getting a proposal to the President.

The main backpedaling will come from folks like Marco Rubio, who are straddling an uncomfortable fence position.  On the one hand, they do not want to be left on the outside of any bandwagon seen as sensibly addressing our nation’s important and future immigrant causes, such as a path to legalization for the undocumented.  And it was that appearance of “outsider-ness” that was left for the Republicans after their stinging string of defeats last November.  On the other hand, lots of these Republican folks still have significant tea party leaning constituencies, who want their candidate to kick and scream in the face of any proposal to reward the immigration law breakers with an immigration law benefit.  This demographic’s anti-“path to legalization” fury is further fueled by their perception that if it were not for these immigration law breakers, our nation’s unemployment problem would not be nearly as bad as it is, since, as the argument goes, these undocumented foreigners, in large numbers, are taking away jobs Americans would otherwise fill.

While we wait for this process – and accompanying drama – to unfold, those who might prospectively benefit from ”path to legalization” legislation should prepare themselves:  Although a law to allow the undocumented to legalize their immigration status is far from a certainty, the chances of enactment are as good as I have seen since before 9/11.  If and when a law gets passed, I envision applicants to be required to produce evidence of their presence in the U.S., however long any prospective law may specify.  Accordingly, now is an ideal time for prospective applicants to start creating a hard copy file of records of their financial, educational, employment and medical treatment history in the U.S., including bank account statements, school transcripts, receipts, leases, bills, tax returns, medical records, and even, as a last resort, print-outs of Facebook or other internet activity.  I am not saying all of this will necessarily be useful or needed for any future legalization process, just that it may be.   What I do know for sure, there will be lots of kicking, screaming and posing between Points A and B.

PUBLISHED April 1, 2013 – “IMMIGRATION LAW FORUM” Copyright © 2013, By Law Offices of Richard Hanus, Chicago, Illinois

By the end of the summer, if not sooner, it is very possible Congress will act to provide undocumented individuals an avenue toward legalizing their status in the U.S. Exactly what the terms or requirements of such legislation will be, or whether for certain a measure will be enacted at all, is unknown. But, if there will be a new law, it is guaranteed, non-attorney, “immigration consultants” will be popping up all over the place to provide a “service” in helping foreign nationals negotiate the process Congress lays out.

Immigration consultants charge a fee to answer questions, complete forms and otherwise advise immigrants on their rights and the proper way to complete this or that procedure. The problem is that for most of what consultants purport to do, the consultant is likely breaking the law. More specifically, only lawyers are licensed to give legal advice and guide individuals through a particular legal process. And when consultants start crossing the line between completing a form and giving legal advice, trouble invariably ensues.

Speaking of which, one Chicago area “immigration consultant” in the news these days is Teresita Zarrabian. Zarrabian, a non-attorney, has been running an immigration consultancy out of the northern Suburbs of Chicago for more than the past decade, and from what I have seen, countless numbers of her clients have ended up in immigration hot water because of her “guidance” or “consulting” services. Her business plan seems to have hit a major road block this past week, however, as a federal grand jury in Chicago handed down an indictment against Zarrabian and an accomplice. The indictment charges Zarrabian of allegedly conspiring to arrange sham marriages for the purpose of conferring lawful U.S. immigration status to her clients, some of whom paid Zarrabian between $8,000 and $15,000.

I wrote about Zarrabian and her “consulting business” many years ago in this Forum, in an article entitled, “The Misadventures of a Skokie Immigration Consultant”. Since that time, I have watched the trajectory her business model has taken, and news of this week’s indictment comes as no surprise. If convicted, Zarrabian and her accomplice face significant jail time, likely in the range of 5-15 years.

Speaking of jail time, another Chicago area immigration consultant in the news recently is Tahawwur Rana who just last month was sentenced to 14 years in prison. Rana, an alleged terrorist, was convicted in 2011 for providing support to the group that carried out the 2008 Mumbai terrorist massacre that killed 160 people and for backing the unhatched plot to attack a Danish newspaper that featured cartoons of the Prophet Muhammad.

This is not to say that there are not well intended folks out there who honestly want to assist foreign nationals in completing a form, or providing some non-attorney service. The problem is that most of those in this business (and it is a business, to be sure) are not well intended. And problems comes into play when that “consultant” has to answer questions about the ramifications of a particular filing, or the down side of proceeding with a filing, as the answer to questions like these involve legal advice – advice non-attorneys are prohibited from providing.

Immigration consultants, or notarios (as they are known in some Spanish speaking communities), have no official certification to prepare immigration-related documentation or to dispense advice. If something goes wrong, there is no license for them to lose. And only if the victimized party is brave enough to approach the police and lodge a fraud or “unauthorized practice of law” charge will the offending party face any consequences for their actions.

When immigration consultants give the wrong advice, sell a fantasy story or just plain take their victim’s money without advice or a story, the undocumented (or visa overstay) victim usually is afraid to complain. They do not want to complain to their family, probably because they are embarrassed about having been swindled. And for sure, they do not want to complain to the police since, in their mind, any law enforcement agency learning of their illegal alien status will certainly see to it they are deported.

While attorneys can lose their licenses, and consequently their means of making a living, immigration consultants cannot. The State of Illinois’ Attorney Registration and Disciplinary Commission can strip an attorney of their right to call themselves an attorney, and practice law. No parallel agency exists to regulate immigration consultants, but for a local police department or Federal criminal autorities. Therefore the immigration consultant does not have, and does not need a license. And because their victim would sooner jump off a 20-story building before reporting the fraud perpetrated, the immigration consultant has no fear.

Here is my advice. When dealing with an immigration law matter, schedule a confidential consultation with a licensed attorney who has a reputation for honesty and zealous advocacy and who focuses on immigration matters only. To be sure, there are many lawyers to choose from, but the prospective client must engage in careful due diligence in making their choice, since most of those who hold themselves out as experts in the field of immigration law are anything but. From there, you may not even end up having to hire the attorney – either because the attorney advises against you facilitating a process, or because the process may be so simple that the preparation or filing of the paperwork can be accomplished without attorney assistance. If the attorney’s opinion sounds far afield, seek a second opinion, especially if large sums of money are being requested. In sum, be careful out there.

PUBLISHED February 11, 2013 – “IMMIGRATION LAW FORUM” Copyright © 2013, By Law Offices of Richard Hanus, Chicago, Illinois

According to many of our nation’s leading pundits and political commentators, it was the “Hispanic Vote” that made President Obama’s reelection possible. What exactly is the “Hispanic Vote”? It seems to have a variety of meanings, although the common theme would be that it is the demographic composed of U.S. citizens with origins in Mexico and Central and South America. President Obama won an overwhelming majority of this segment of our electorate, and no doubt that was as much as result of what President Obama made clear he stood for, as it did with what Candidate Romney’s shortcomings in making clear what he stood for, most notably in the area of immigration law.

Throughout his presidency, including his reelection campaign, Obama was definite about where he stood on immigration and how he would address the issue of having 12 million individuals living in the U.S. without legal immigration status. Whether you agreed with his position or not, you knew what it was – that a path to legalization must be enacted for long-time residents with no significant criminal background and are not burdens on society. In other words, if you are a hard-working, honest, otherwise law abiding, de facto American – albeit undocumented, then there is a place for you continue to live in American society. From there, we have – among other benefits, millions of workers coming out of the shadows, paying taxes and investing in houses and other aspects of our economy.

Obama’s plan is not a perfect solution of course, but to his thinking (which I agree with), it’s better than the alternatives – which would be to 1) commence an unprecedented initiative to place 12 million folks in removal proceedings or 2) continue the status quo – our society’s de facto amnesty – where the spotty enforcement of our immigration laws that has been going on in the U.S. for decades continues, and those here working and living illegally continue to do so, but with always an eye in the rear view mirror.

Romney’s position, I mean positions, on immigration, depended on the day and time you asked him about it. At the Republican debate he unequivocally stated he’d veto the DREAM Act, and was opposed to talk of any comprehensive immigration reform. After getting the Republican nomination, he did an about face, and stated that DREAM Act type legislation is not enough, and that some sort of comprehensive immigration reform, legalization program for all the country’s undocumented was needed. And he had the gall to criticize Obama for implementing Deferred Action of Childhood Arrivals (DACA) – the program which allows certain young adults to obtain a 2 year work permit, stating that such a temporary remedy is inadequate.

Speaking of DACA, it was the point at which Obama announced the program on June 15, 2012, that was one of the most critical moments in his bid for reelection. It was at that moment, he forced Romney into a corner and pressed him for his stance on immigration. It was Romney’s indefinite, flip flopping on this issue that sealed his fate.

From Karl Rove’s melt down on national TV during election night coverage, to the emergence and failures of the mega-financed Super Pacs, the commentators have had excellent material to comment on as they look back on the election and the shortcomings of today’s Republican Party. As to the Republican approach to our nation’s immigration problem, most telling is the fact that the farthest right commentators and politicians – Sen. Lindsey Graham, House Speaker John Boehner, Sean Hannity and Charles Krauthammer all included- appear to have now hopped on the Comprehensive Immigration Reform bandwagon. Along the lines of “if you can’t beat em, join em”, it’s my sense the Republicans will show up to be a meaningful partner to the Democrats on an immigration reform, path to legalization, deal within the coming year.

PUBLISHED November 12, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois

The “DREAM Act” Inspired Program In A Nutshell:

Young adults who:

A) have completed high school, their G.E.D. or were honorably discharged from the U.S. armed forces,

B) have lived in the U.S. for more than 5 years,

C) have no significant criminal records and

D) are under the age of 30…..……

will now have an opportunity to remain in the U.S. and obtain an employment authorization document, thanks to a new executive directive announced by President Obama last week.  Intake procedures and processing logistics have yet to be implemented, but it appears the launch of this program will happen very soon, perhaps in a matter of weeks.

With this move, President Obama, in one fell swoop, accomplishes a number of significant achievements:

1)  He demonstrates leadership and a sense of justice by moving forward with a program that allows as many as 800,000 accomplished undocumented, or out of status, students obtain a 2 year employment authorization document – a document which then establishes eligibility for a social security number and drivers license,

2)  He puts his concern for immigration reform back into the spotlight, after failing to deliver on promises he made prior to taking office. Read:  pleading for America’s Hispanic vote, an essential element of a reelection bid.  Perhaps this will be step one toward the implementation of true, comprehensive reform and a path to legalization for the 12 million undocumented in our country.

3)  He backs Mitt Romney into a corner.  In my effort to avoid being cliche or predictable as an immigration lawyer, I try my hardest not to write this column from any particular political perspective, especially a liberal, anything-goes angle.  Even so, it’s hard not to see the slimey ooze coming from Romney’s mouth as he awkwardly attempts to respond to this new Obama initiative by muttering a nonsensical, non-position.   Does Governor Romney support such an Obama initiative?  Would he continue to keep it in place if he is elected President?  Umm, Umm, blah, blah, or something to that effect, is his response, or should I say, non-response.  His non-response leaves the American public wondering what he really stands for, although he stated unequivocally not long ago during the last Republican debate that he would veto any DREAM act type legislation that would come across his desk as President.

Back to the basics of the new program:

• again, Department of Homeland Security/Citizenship and Immigration Services procedures for intake and processing will likely be announced in a matter of weeks,

• applicants are not on the road to Green Card, just a 2 year period of employment authorization,

• the fact an applicant is already in removal proceedings, or already even ordered removed, will not necessarily be a bar to eligibility

• brief departures out of the U.S. during the 5 year period will not necessarily disqualify the applicant,

• one or two “insignificant” misdemeanor convictions will not necessarily derail the process and

• DHS’ agents, effective immediately, are directed not to place qualifying applicants in removal proceedings

Unanswered Questions…For the Time Being:

• How long will it take be issued the Employment Authorization Document after applying?  My guess – 90 days, give or take.

• What happens after the two years?  My guess: At worst – another extension opportunity.  At best – if the actual DREAM Act gets passed by Congress, a path to green card.

• Will the new initiative survive the court challenge promised by Obama’s Republican foes (premised on the argument that the program inappropriately intrudes on our legislative branch’s domain)?  My guess: Yes.  This program falls under the Executive Branch’s (The President’s) discretionary authority to prosecute or not prosecute immigration law violators, an authority exercised by Presidents, Republican and Democrat alike, for generations.

Lastly, for now, it seems the brilliance of this new program is reflected in a most important number:  64% of likely voters approve of the measure,  according to a Bloomberg poll released today.

In the realm of politics and immigration, I have come to learn that surprise and change are a constant, and that one should always expect the unexpected. Important developments on this and other important immigration related policies and legislation will continue to be featured in this column.  Stay tuned.

PUBLISHED June 18, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois

President Obama has always made it known that he favors the enactment of some form of comprehensive immigration reform to allow for a “path to citizenship” for at least some of the approximately 12 million living in the U.S. without legal immigration status. During his term, it’s been a Republican Congress that’s been the main obstacle to getting any type of immigration reform initiative passed, whether it be the DREAM Act, or more comprehensive reform proposals. If you are wondering how the Republican candidates for President would approach the issue – below are direct quotes attributed to each of them, along with my own peanut gallery assessment:

Mitt Romney
“My view is, people who have come here illegally, we welcome you to apply but you must get at the back of the line, because there are millions of people who are in line right now that want to come here legally. I want those to come here legally. Those that are here illegally have to get in line with everybody else.” [Republican Debate, December 15, 2011]

RH – What line are you talking about Mr. Romney? The vast majority of undocumented individuals currently have no avenue toward legal status in the first place, and thus have no line to get into! This sounds good, but has no basis in reality. Maybe, like most politicians, he is just saying what he thinks the public wants to hear just to get elected, and once elected will do whatever suits his political agenda and survival. After Iowa, it looks like BS and nice sound bytes take you places though. Slick guys finish first?

“If I were elected and Congress were to pass the DREAM Act, would I veto it? The answer is yes.” [Washington Post, December 31, 2011]

RH – Same assessment as above. Sounds tough, and that’s what Romney thinks he has to sound like on immigration issues. Any reasoning he would cite, like in the first quote, would likely have no basis in reality. Nevertheless, slick guys appear to finish first.

“As President, [I] will also work to establish a policy that staples a green card to the diploma of every eligible student visa holder who graduates from one of our universities with an advanced degree in math, science, or engineering. As President, a first step that [I] will take is to raise the ceiling on the number of visas issued to holders of advanced degrees in Math, Science, and engineering who have job offers in those fields from US companies.” [Believe in America, September 6, 2011]

RH – Great idea, and sounds great.

Newt Gingrich
“I do not believe that the American people are going to tolerate going after somebody who has been here 25 years, who has a family, has children and grandchildren, belongs to a local church. What I proposed is very standard things. Control the border by January 1, 2014. Make English the official language of government. Go to a much better visa program that’s much…that makes it more desirable to visit the U.S. legally. Go to a better deportation program to move people out who shouldn’t be here.” [CBS News, December 18, 2011]

RH – Congratulations Newt. You may win the award for the most honest of this bunch. Your answer is practical and real. Be careful though, honesty may not get you too far in this race. The tougher, “law and order” talk seems to be what most of the other politicians think will win the day.

“Let me start and just say I think that we ought to have an H-1 visa that goes with every graduate degree in math, science and engineering so that people stay here.” [Republican Debate, November 22, 2011]

RH- Great idea! Sounds great.

Ron Paul
“Somebody who’s been here and it’s their country I think there should be a program to bring them into the fold…but I want it to be done systematically. I think we need more efficiency at our borders, and allow the people to come in, especially for people who can take care of themselves. But you ask about what we do with 11 million and I would say you have to work out a program of assimilation, but you can’t just say borders don’t count and people should be rewarded for breaking the law.” [Univision, October 2, 2011]

RH- same commentary as for Newt. Its honest, real talk. Not as sexy as law and order though.

“End Birthright Citizenship – As long as illegal immigrants know their children born here will be granted U.S. citizenship, we’ll never be able to control our immigration problem.” [Ron Paul 2012]

RH- whether you agree with his stance or not, he is honest and truly believes what he is saying, particularly regarding the attractiveness of US citizenship for all children born here. His blunt commentaries appear to be getting him places.

Voted “yes” on H.R. 3736, a bill that increased the number of highly skilled workers from 65,000 to 115,000 by the year 2000. [U.S. House of Representatives, September 24, 1998]

RH- consistent with earlier commentary, he is honest and realistic on this issue as well. What planet he lives on other issues, such as foreign policy, is a whole other question.

Rick Perry
“Amnesty is not on the table period. There will be no amnesty in the United States. We’re a country of law and the idea that we’re going to tell people that somehow or another that that’s all forgiven is not going to happen.” [ABC News, November 29, 2011]

“But I do think that there is a way. That after we secure that border that you can have a process in place for individual who are law- abiding citizens who have done only one thing, as Newt says, 25 years ago or whatever that period of time was, that you can put something in place that basically continues to keep those families together.” [Republican Debate, November 22, 2011]

RH – Amnesty…a word loaded with toxicity in the immigration debate. However Rick, there is already a de facto amnesty in place now, as the US government is looking the other way for the millions in the U.S. without status. True to his inner character, Rick comes off like he wants it both ways and talks from both sides. He is not brave like Newt and some of the others – who says it like it is. Too slick for his own good it seems.

“But if you say that we should not educate children who have come into our state for no other reason than they’ve been brought there by no fault of their own, I don’t think you have a heart. We need to be educating these children, because they will become a drag on our society. I think that’s what Texans wanted to do.” [Republican Debate, September 22, 2011]

RH – sounds a little braver, but he tends toward back pedaling whenever one of his controversial positions, such as this, are taken issue with. After Iowa, he seems to be on his way out anyway.

“We need highly technical, trained engineers and biomedical scientists. And a lot of times, you can’t get those people because they can’t get an H-1B visa, for instance.” [CNBC, September 29, 2011]

RH- True!

Rick Santorum
“The idea people who are here 20 or 25 years and came here illegally only committed one illegal act, well, you can’t be here and commit one illegal act because almost everything you’re doing while you’re here is doing things against the law…So we say, we should let that happen. We shouldn’t break up families. We should let them all come…This is false compassion.” [CNN, December 6, 2011]

RH – Honest and practical. No waffling, so it seems.

“First off, I’m actually for a system that allows for people to come here, if they come here on a student visa or they come here on a visa that — you know, where they’re getting some sort of higher education or they’re learning some great skills that are good and necessary for the country — my feeling is, you know, if they graduate and do well, we should — you know, we should have — actually give folks the opportunity to have a green card and to stay here and work.” [Fox News, November 29, 2011]

RH – Sounds good. Is good.

Michele Bachmann
“Well, I don’t agree that you would make 11 million workers legal, because that, in effect, is amnesty. And I also don’t agree that you would give the DREAM Act on a federal level.” [Republican Debate, November 22, 2011]

RH – She sure is honest, and she does not waffle. Is she crazy? Is there any practicality to her approach? Those are separate questions. My take on the practicality of deporting 11 million people – including placing them in removal proceedings and providing “due process”? – HA, Good luck federal government! Anyway, after IOWA, all of her talk, and my commentary, is perhaps moot.

“We think about the United States and what’s in the best interests of the United States. If we can utilize these workers, like Steve jobs wanted to, then we need to offer those visas. That will help the United States. But I don’t agree that we should make 11 million workers who are here illegally legal.” [Republican Debate, November 22, 2011]

RH – Practical and smart on the visas for professionals and skilled workers. Not so much on the other issue.

Jon Huntsman
“I think you have to take a very practical approach to having them [undocumented immigrants] wait in line. There have to be certain requirements. Language requirements. English as an official language for example. Paying back taxes, if that is applicable. There needs to be some steps along the way that would suggest that they have paid whatever price and penalty in order to come out of the shadows and to gain citizenship in this country. You have to create a system whereby you can move towards citizenship. You can’t wish people away. You can’t just use rhetoric that says we’ll ship people back.” [Think Progress, September 19, 2011]

RH – Honest and practical, except for that “line” comment.

“I believe immigration is a human as well as an economic issue, and that children of illegal immigrants shouldn’t be punished for the sins of their parents.” [CBS News, September 23, 2011]

RH – Honest and practical.

“We can’t process people. The H1B visa process is broken. We need to bring in brain power to this country to shore up our economic might. We need to bring in foreign capital to raise real estate prices as well.” [Republican Debate, September 12, 2011]

RH – Smart, practical and honest!

PUBLISHED January 4, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois

Watching presidential debates is not one of my favorite things to do, mainly because I have a hard time believing a single word coming out of any of the participants’ mouths.  The posturing is so obvious, with each candidate trying their hardest to get their sound bites in, and say the things their “people” tell them they need to say.  So it was by accident – while looking for enjoyable garbage to watch on the Dumb Box (my mother’s affectionate term for the television), that I happened upon the debate involving Republican candidates for President last week.  At the moment I tuned in, the one topic I have more than a little familiarity with was being argued, U.S. immigration policy.  So I gave it a listen, curious to hear if any honest conversation was going on, or if it was going to be the usual festival of scare tactics, half-truths and snake oil pitches all too common in political arena immigration discussions.

What I heard: mainly the familiar cries for anything but the incumbent’s policies.  “We have to enforce the border”.  “We can’t have an amnesty….or have any talk about a path to citizenship, without first securing our borders…” (with hand stomping on podium……and praying for applause).  But, the question these politicians have a hard time answering, and do not want to answer is “what does securing the border mean?”  By repeating the “secure the border” cry in trancelike fashion, the politician seeks to avoid the next, elephant in the middle of the room, question of what do we do with the 12 million undocumented who are already here.  Of course these candidates will also do their best to avoid talking about how Barack Obama has facilitated record numbers of deportations during his term and has successfully amped up our border strength with advanced technologies and increased manpower.

However, one candidate, Newt Gingrich, had the nerve to talk truth about immigration, and touch on the 12 million dollar question – suggesting a “humane” immigration policy and confessing he would not remove all illegal immigrants that are currently in the country:

“I do not believe that the people of the United States are going to take people who have been here a quarter century, who have children and grandchildren, who are members of the community, who may have done something 25 years ago, separate them from their families, and expel them,”

Now that took nerve.  Here in the midst of a gathering of the Republican’s best and brightest, Newt Gingrich took a risk and said what every other candidate deep down truly believes.  Of course our society will not be removing all of our undocumented.  That fact alone is evident in the practice of the various administrations in office over the past generation, no matter the party affiliation.  Newt’s statement nevertheless drew the predictable chorus of accusations that he is “soft” on immigration, and that irresponsible statements like his show he will be inclined toward creating policy that encourages more illegal immigration since the law breakers of the past will now be rewarded with green cards.

Let’s forget about the fact that for more than the past generation our society has implemented a de facto amnesty anyway, where we look the other way when it comes to our undocumented  immigrants who are not committing crimes, but instead are committed to cleaning up our homes, taking care of our elderly or installing our new dry wall.  No one at the Republican debate acknowledged that fact, and that our de facto amnesty is already a significant “magnet” to encourage people to come here based on the predominant motivation at play – that life in the U.S. without status is better than the futureless, hopeless life that awaits back in an opportunity-less and/or corrupt homeland.

Maybe Gingrich is already looking ahead and plotting a strategy for the November, 2012 general election.  Or maybe he was just having a moment of unavoidable arrogant clarity.  Whatever the case, it seems that notwithstanding the immediate schoolyard name-calling his immigration remarks prompted from his opponents, Gingrich stated an indisputable reality:   the undocumented population with deep roots in the U.S. and who are otherwise law-abiding, are not going home voluntarily, and further, face almost no chance of ever being deported.  Mitt knows it.  Rick knows it.  Herman knows it.  And even Michelle knows it.

PUBLISHED November 28, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois

It made a splash, a big splash, even a misunderstood splash (as is common with splashes in immigration law).  Last week, the Obama Administration delivered the news that it would be re-prioritizing its immigration enforcement efforts, starting with a review of 300,000 removal (deportation) cases pending on the immigration court docket and consideration of “administrative closure” for the cases of non-criminals.  Administrative closure effectively, and indefinitely, puts a halt to the deportation process.  Furthermore, an individual benefiting from administrative closure mercy will be eligible to obtain an Employment Authorization Document.

This announcement offers hope to many in the midst of fighting removal proceedings.  It also offers confusion to millions of undocumented individuals living in the U.S. hungry for a solution to their immigration problem, and who are vulnerable to misinformation, fantasy, despair or all of the above.

Here is what we know about the new program:

1)      A high level “working group” comprised of Department of Homeland Security and Department of Justice officials will review all cases pending before the immigration courts, with cases deemed “low priority” being administratively closed, and those considered “high priority” to continue to be prosecuted.

2)      Although “low priority” and “high priority” have yet to be defined, there is reason to believe – based on previous Obama Administration memoranda and policy – that non-criminal cases, involving, among other factors, hardships to individuals and families residing in the U.S. for extended periods will qualify as “low priority”.  “High Priority” no doubt will be cases involving individuals with criminal backgrounds of some sort or another.

3)      New guidance will be issued to the various immigration related agencies within the Department of Homeland Security (including U.S. Citizenship and Immigration Services, Immigration and Customs Enforcement, and Customs and Border Protection) regarding what constitutes “low priority” and “high priority” to assist in decision-making, before the fact, for the initiation – or non-initiation – of removal proceedings.

4)      Individuals with administratively closed cases will be eligible to apply for employment authorization, although details of how such an application process will work have yet to be revealed.  Further, individuals granted employment authorization in this context are not considered to be in “legal status” or even on the road toward legal status, but only the subjects of a temporary, perhaps indefinite, reprieve.

5)      It is NOT an amnesty.

6)      It is not an avenue that can be availed of by which individuals who are not in removal proceedings.

The wording of this announcement appears to indicate that consideration of cases for “low priority” status and administrative closure will take place regardless of whether the subject requests such review.  However, it makes good sense for non-criminals in the midst of fighting removal proceedings, and with compelling, or even semi-compelling humanitarian factors, to take the initiative to approach their prosecuting ICE attorney’s office and seek an exercise of prosecutorial discretion consistent with the spirit of this new program.

In no case should an individual, who is not in removal proceedings, pay an attorney or other purported professional to avail of benefits under this program – as no benefits exists outside the context of removal proceedings.  And again, even for those in removal proceedings, details regarding how the act of mercy (administrative closure), or employment authorization can be accessed are few and far between at this point.  As always, though, important developments in this area, and all areas of immigration law, will continue to be reported on here.

PUBLISHED August 22, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois

With the DREAM Act out of the picture for now, the 15 million undocumented/out of status immigrants living in the U.S. are left wondering, what options for living legally in the U.S. are left? Of course leaving the U.S. is not an option for the vast majority of these immigrants – contrary to what the anti-legalization camp see as their next logical step. These individuals have already decided that life in the U.S. in an undocumented status is better than life as a legal resident in their home country. The option most of this population will pursue is to simply wait. At some point, our nation and the U.S. Congress will come to realize that wide scale deportations are not going to happen, and that a path to legalization is the only solution. In the meantime, as stated, for most it’s a waiting game, although the following options at legalization or adjusting status for the undocumented or visa overstay continue to be viable:

1)  Visa Overstays May Be Able to Adjust Status if: they are the spouse of a U.S. Citizen, a parent of an adult (over 21) U.S. citizen, or child (under 21) of a U.S. Citizen. This class of immigrant may have the option to adjust status in the U.S. without having to return to their home country for any step in the process, notwithstanding unauthorized employment or overstaying their authorized period of stay in the U.S. (does not include those entering as “crewman”, or K-1 fiancés who did not marry their petitioner). Spouses of U.S. citizens, parents of adult U.S. citizens, and under 21 children of U.S. citizens are known as “Immediate Relatives” in immigration law talk and do not require additional legal qualification for eligibility to adjust status in the U.S. such as coverage under INA Section 245(i) – see below – to adjust status in the U.S.

Other types of non-“Immediate Relative” family based immigration applicants or employment based applicants who are visa overstays may be able to adjust their status in the U.S. but only if they were included in some sort of family or employment based immigration filing submitted prior to April 30, 2001, or January 14, 1998 - pursuant to Section 245(i) of the Immigration and Nationality Act –see below.

2)  Entered Without Inspection (EWI): If you are the spouse of a U.S. Citizen, a parent of an adult (over 21) U.S. citizen, or child (under 21) of a U.S. Citizen who entered without being inspected by an immigration official (e.g. no visa), the option to adjust status in the U.S. only exists if you were previously included in some sort of family or employment based immigration filing submitted pursuant to Section 245(i) – see below.

Other types of non-“Immediate Relative” family-based or employment-based applicants who entered without visas (EWI) may be able to adjust their status in the U.S. but only if they were included in some sort of family or employment based immigration filing submitted prior to April 30, 2001, or January 14, 1998 – pursuant to Section 245(i) of the Immigration and Nationality Act.

3) EWI’s or Visa Overstays with an employer willing to facilitate a green card process, and they are a professional and/or have some special skills that may be scarce in the U.S. labor market, an employment based immigration filing may be an option if they are grandfathered under Section 245(i). Word of warning though: most candidates for this option may very well be waiting 5 years – give or take – before any type of immigration benefit, such as an employment authorization is in sight.

What is Section 245(i) of the Immigration Nationality Act? Section 245(i) allows for certain otherwise ineligible visa overstay/undocumented immigrants to undergo all steps in the U.S. immigration process in the U.S. and without having to return to a U.S. consular post in their home country (aka “245(i)grandfathering”). To be “grandfathered” under Section 245(i), the applicant must have been:

a.  included in some sort of family or employment based immigration filing submitted prior to April 30, 2001, and they were physically present in the U.S. on December 21, 2000 OR

b.  included in some sort of family or employment based immigration filing submitted prior to January 14, 1998 (with no physical presence requirement)

Relief in Removal Proceedings: If the visa overstay or undocumented immigrant gets arrested by immigration authorities and placed in removal proceedings, options to remain in the U.S. and even be awarded permanent residence by the Immigration Court indeed are available. Most notably, relief known as “Cancellation of Removal” allows those without status to be considered for a green card by the Immigration Court if: 1) they have been present in the U.S. for more than 10 years or more prior to being placed in removal proceedings. 2) they are of good moral character and 3) their U.S. citizen or permanent resident spouse, parent or child will suffer “exceptional and extremely unusual hardship” if they were forced to return to their home country.

For those who fear return to their home country due to persecution they might face on account of their race religion, political belief or “social group”, asylum-related relief (and eventually green card issuance) may be available from the Immigration Court.

PUBLISHED January 26, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois

As most people have come to learn by now, the DREAM Act – the legislative initiative to allow for the legalization of 1 million or so undocumented individuals who came to the U.S. as children – has been shot down by Congress. The very same Republican force that gave birth to this legislative proposal a few years back was pretty much responsible for its demise. And yes, 2 +2 = 5.

 PUBLISHED December 20, 2010 – “IMMIGRATION LAW FORUM”
Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois