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

U.S. Department of Homeland Security/Citizenship and Immigration Services continues to do its job with efficiency and speed when it comes to processing Applications for Naturalization (N-400) and Applications for Adjustment of Status (green card – I-485) based on marriage to a U.S. citizen, or other family or employment immigrant category with current visa availability.  Immigration interviews, at least through CIS Chicago, are being scheduled with lightning speed, and card production for approvable permanent resident applicants, and oath ceremonies for approvable U.S. citizenship applicants follow within just a week or two of the interview.  In my 20+ years of practicing immigration law, I can say that the logistics of these aspects of the immigration benefits system have never worked better.

Here is the current timeline for family based, I-485 adjustment of status applicants — assuming the paperwork and all supporting documentation is prepared and filed correctly:

1. Dept. of Homeland Security/Citizenship and Immigration Services issues receipts within approximately 5 to 10 days of filing date,
2. Biometrics (fingerprint) appointment scheduled within approximately 10-15 days of filing date,
3. Employment Authorization Document (and for those eligible, Advance Parole Travel Document) issued within 45 to 90 days of filing date and
4. Interview (at least at CIS Chicago) scheduled within 90 -120 days of filing.

Please note that interviews will be scheduled for all marriage-based applications, but not necessarily for other types of family-based cases. Applicants with arrest records or other significant immigration-related irregularities will always be interviewed.

The timeline for N-400 applicants for naturalization — assuming prepared and filed correctly — is pretty much the same as for I-485 applicants, except that interviews are scheduled within 3-5 months of the filing date, and oath ceremonies scheduled approximately 1-2 weeks following the interview.

What can impact this timeline?  If the application and all supporting documentation, such as the Affidavit of Support, is not prepared correctly, additional weeks or months can be added to Employment Authorization Document and/or I-485 processing times.  Also, if questions surrounding the applicant’s legal eligibility for permanent residence or U.S. citizenship comes into play — especially at the time of interview — weeks, months, and even years can be added on to this processing timeline. But when the case is prepared properly, and clear legal eligibility for the immigration benefit is established, applicants can pretty much expect smooth and speedy sailing.

PUBLISHED June 16, 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

If past experience is any guide to the future, the new and “improved” DREAM Act proposal now up for congressional consideration has little or no chance at passage. As the post 9/11 era has taught us, legislative proposals to excuse, in any way, immigration law violations generally face the bleakest of prospects. Proponents of the new DREAM act, or any other type of initiative to “go easy” on immigration violators, will surely be greeted with the same heated opposition previous versions of the proposal faced, even though the current bill comes with many more eligibility restrictions. A key vote on the new proposal will take place in the coming week.

First, a review. The DREAM in the DREAM Act stands for Development, Relief, and Education for Alien Minors. The essence of the DREAM Act, in all of its incarnations – including the present one, is to allow for a path to legal immigration status for certain undocumented immigrants brought to the U.S. as young children, who have completed a high school education or equivalent and fulfill, prospectively, other conditions such as a minimum number of years of college or honorable service in the military. The enactment of a DREAM Act type proposal would benefit approximately 1-2 million undocumented young adults who were essentially raised as “Americans”, consider themselves “Americans” and have never really known any country other than the U.S.

To make the bill more attractive to the mainly Republican opposition in Congress, sponsors have added more stringent eligibility requirements, including:

• Excluding from eligibility applicants with a criminal record of more than two misdemeanors convictions,
• Requiring applicants to provide complete biometric information to Department of Homeland Security, and register with Selective Service (like all other US citizen and residents over the age of 18 years are required to do),
• Requiring applicants to pay all taxes owed to date, 
• Imposing a cutoff age of 30 years old as of the day of enactment, 
• Extend the good moral character requirement to the day the applicant originally entered the US as opposed to the date of enactment, 
• Requiring applicants to eventually demonstrate English language and Civics proficiency similar to current naturalization requirements, 
• Imposing a 10 year conditional nonimmigrant status, followed by 3 years of lawful permanent resident status, before ultimately becoming eligible for naturalization,

Opponents of the DREAM Act say the enactment of this proposal would lead to all kinds of financial burdens on U.S. society. However, a common sense evaluation of the facts on the ground reveal otherwise. Most notably – with passage of a DREAM Act, we will have a population of young adults who will now be in a position to work legally in the U.S. and PAY TAXES. Remember, these young adults are not going anywhere – unless forced to by ICE agents, since the countries of their birth are practically different planets to them. Further, the costs of instituting and executing on a plan to deport this portion of our undocumented population is prohibitive, estimated to be in the area of $48 billion. Lastly, if forced to removal proceedings, a good portion, if not majority of this population would qualify for relief in court based on their lengthy residence in the US and hardships to US citizen and resident family members.

Of course the enactment of the DREAM Act, whatever the version, makes good sense, as does overall comprehensive immigration reform for the undocumented population at large. It’s just that good sense and politics do not always go together. We will know more next week.

PUBLISHED December 1, 2010 – “IMMIGRATION LAW FORUM”
Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois

Effective November 23, 2010, filing fees for most immigration applications and petitions are set to increase, on average, some 10-15%. On the other hand, filing fees for 6 categories of applications are actually set to be reduced, including for I-129F/Petition for Fiance, I-539/Application to Extend/Change Nonimmigrant Status, N-565 Application for Replacement Naturalization/Citizenship Document and I-131 – Application for Travel Document – but only when filed for Refugee Travel Document. Also, fee waivers based on an applicant’s economic hardship will be accepted in more types of application categories.

Approximately 90% of U.S. Citizenship and Immigration Services’ budget comes from the fees it collects for the various immigration related applications and petitions that get filed each year. For fiscal years 2008 and 2009, revenues collected – according to CIS – were significantly less than what was projected, thus prompting this new increase. For certain, the decrease in filings and revenues is not based on a decrease in demand for immigration benefits, such as for green cards, just that the population of eligible immigration benefit applicants is smaller and the options available for the tens of millions of interested applicants are fewer – especially for those in the U.S. without legal status.

It is important to note that the filing fee for standard N-400 Applications for Naturalization did NOT increase, although the required biometrics fee (which must accompany many types of commonly used applications) does increase from $80.00 to $85.00. Below is the new fee schedule (MAKE SURE TO ADD THE INCREASED $85.00 BIOMETRICS FEE TO APPLICATIONS SUCH AS I-485, I-90, N-400, I-751 and several others)

PUBLISHED November 17, 2010 – “IMMIGRATION LAW FORUM”
Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois

As of this week, the U.S. Department of Homeland Security/Citizenship and Immigration Services began issuing a new version of the Certificate of Naturalization for newly naturalized immigrants. The new document resembles the previous version, except that certain high tech security features have been added. Prospective applicants for naturalization should know that the procedures for applying for citizenship remain the same, including the requirement that 2 passport type photos still be included with each application – although the application process will now include the capture of an applicant’s digital photo at the time they appear for biometrics fingerprinting. Also, the millions of naturalized citizens who were issued previous versions of the certificate are not required to take action to obtain a new version certificate.

PUBLISHED October 27, 2010 – “IMMIGRATION LAW FORUM”
Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois

Whether you are a lawful permanent resident or simply undocumented, signing up and serving in the U.S. military may pave a quick, and perhaps an otherwise unavailable path, to U.S. citizenship. By way of laws like the National Defense Authorization Acts for fiscal year 2004 and 2008 and the Expedited Naturalization Executive Order of 2002, permanent residents, and undocumented aliens alike, may be eligible for U.S. citizenship no matter how much time they have spent in the U.S., or their legal status.

Military based applicants will still need to meet moral character requirements and demonstrate basic knowledge of English and American Civics, although they will not be required to pay filing fees.

For more about naturalization options via U.S. military service, call the special CIS customer service line at 1-977-247-4645, or log onto the CIS website – www.uscis.gov/military

PUBLISHED May 8, 2010 – “IMMIGRATION LAW FORUM”
Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois

When it was announced Lou Dobbs, a controversial television commentator, was leaving CNN, I set out to write a column explaining the significance of his views and departure from CNN and whether the controversy surrounding him is truly warranted. I finished a few drafts but had a difficult time tying together my thoughts and arriving at any meaningful conclusions. However, Dobbs’ recent pronouncements, on Fox News’ O’Reilly Factor, in favor of a legalization program for our country’s undocumented population, prompts me once again to think about Dobbs and the relevance of his views.

I must confess that I never regularly tuned in to watch Dobbs’ program, but I do know that he developed a reputation as being an angry, populist, even racist, voice especially when it came to the enforcement of the U.S./Mexico border and U.S. immigration law in general. Apparently, Dobbs’ presentation became too angry and opinionated for CNN management to continue to stomach. Notwithstanding his irritating, and over-generalizing style, I still think he asked some good questions. How did our borders become so porous? Why aren’t our immigration laws strictly enforced? How is it that the undocumented population in the U.S. has reached the 12 to 20 million level? Given his relative popularity and notoriety, one gets the impression that Dobbs is thinking about the basic questions that are on the minds of “regular Americans” (whoever they are).

How did we get to the point where 12 to 20 million people decided that their lives here illegally are better than a “legal” life in their home country? Many, many factors of course. The following are some of my own general, anecdotal and non-scientific observations.

Based on my day to day interactions with employers and foreign nationals seeking to stay in the U.S., it is clear that there is nothing like a hungry, hard working foreign national to fill a job, whether skill or unskilled, professional or non-professional – at least compared to a second or third generation American. But for a small, small percentage, the foreign national coming to the U.S. is coming here to work hard, make money and create a better life than the one he had in his native land. In most cases, it’s not that he works for cheap, but it’s that he has a drive and motivation born out of deprivation, with his homeland providing little or no promise for economic, educational or professional advancement.

In previous generations, U.S. immigration law has mostly found a way to accommodate the demand of U.S businesses for these hungry, enterprising workers, and the ambitions of the foreign nationals seeking to “make it” in the U.S and pursue the American dream. In fact, most would agree that it is the generational infusion of a hungry, enterprising workforce that has been integral to our nation’s evolution and character. In the past couple decades though, it is clear that much, much more of the rest of the world want to come to the U.S., and legal avenues available to accommodate this increased interest have only become fewer. For certain, politicians sense their non-business constituencies to be generally opposed to creating laws allowing for more ways for foreign workers to take U.S. jobs – especially since 9/11 and in our present economic environment.

The result: an undocumented population of 12 to 20 million, professional and non-professional workers alike, who arrive and stay in the U.S. They remain in the U.S. because the U.S. government has made a deliberate decision to not institute deportation proceedings against this otherwise law abiding (but for a small percentage), undocumented population. They remain in the U.S. because life here, even illegally, is better than their life in their home country. In the U.S., unlike in their home countries, they can work hard for a better future, if not for themselves, then for their children. But for most of these people, there exists no vehicle toward legal immigration, no paperwork to complete and no “line” in which to wait their turn. The bottom line, legal avenues for the vast majority of the 12 to 20 million generally do not exist and never did exist.

Back to Lou Dobbs. Dobbs wonders aloud, sometimes very aloud, how the current undocumented population managed to reach its current level — and for this, Dobbs has been portrayed as, among other things, anti-immigrant. But, beneath his bravado and anger, I see someone who asks some honest questions no one seems to want to answer, such as: If the U.S. really can benefit from hungry enterprising workers earning market wage, why don’t we institute laws that allow for such a transaction, as opposed to just looking the other way when it comes to enforcement ?

During his recent appearance on O’Reilly’s show, Dobbs admits that since first taking up immigration as one of his pet issues , he has become wiser and less angry – particularly when it comes to the issue of what to do with our nation’s undocumented. He has resigned himself to accepting the notion that our nation has neither the bureaucratic infrastructure nor emotional strength to deport 12 to 20 million individuals – so let’s be honest, Dobbs realizes, and create an avenue to “legalize” them.

Regardless of his motivations – including his political aspirations, if Lou Dobbs represents the voice of John Q. Public and he has finally accepted the honest and realistic solution of comprehensive immigration reform, and a path to citizenship for the undocumented, perhaps our nation has turned a significant corner in this discussion.

PUBLISHED January 9, 2010 – “IMMIGRATION LAW FORUM”
Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois

On October 28, 2009, President Obama signed into law important immigration provisions to address the unjust consequences of slow Citizenship and Immigration Services processing, particularly relating to widows and widowers of U.S. citizens. The law also includes ameliorative provisions relating to other types of family relationships and petitions; the death of a petitioning US family member or principal beneficiary will no longer necessarily deal a fatal blow to a pending case. With regard to this latter category of petitioners, however, significant questions continue to linger.

Widows and Widowers of U.S. Citizens

Consistent with recent Department of Homeland Security policy, the new legislation effectively eliminates what was known as the “Widow Penalty.” Under previous law, foreign nationals who were the widows or widowers of U.S. citizens only qualified for an initial grant of U.S. residence if they were married for at least two years prior to their spouse’s death. Now, a foreign national spouse is eligible to seek U.S. permanent residence (by completing Form I-360), no matter how long they were married at the time of the U.S. citizen’s death, and regardless of whether their spouse ever initiated the U.S. immigration process or obtained approval of an I-130 petition. The law applies retroactively as well as to surviving spouses who were overseas at the time of their U.S. citizen spouse’s death. Thus spouses of deceased U.S. citizens who were ineligible due to the short term of the marriage can now benefit from U.S. immigration benefits, including foreign spouses who have never set foot into the U.S. — no matter how long ago they were widowed.

NOTE: 2 year Deadline!!!

Foreign nationals whose U.S. citizen spouses died before the enactment of the new law must apply for U.S. immigration benefits within two years of the enactment date before October 28, 2011. Otherwise, foreign nationals whose U.S. citizen spouse dies following the enactment of this law, must file for U.S. residence within two years of their spouse’s death.

Lastly, children of the above class of applicants who are under 21 years old may also be included in the U.S. immigration filing, although CIS Headquarters may soon have more details on eligibility for this class of applicants. Stay tuned.

Other Family Based Petitions Where Petitioner Dies Before Petition Approval

Basic immigration law says that if a family based U.S. citizen or resident petitioner dies, so does the petition. In the past, only if the petition was approved prior to the petitioner’s death, could the foreign family member seek to have the petition reinstated by way of a humanitarian reinstatement request. Now, under the new law, if any family based preference I-130 petition on file was unprocessed by the time of the petitioner’s death, CIS now has authority to continue the processing and approve the petition, as long as such continued processing is not determined to be “against the public interest.”

This new provision only applies to beneficiaries of family based petitions who resided in the U.S. at the time of their petitioning relative’s death.

Interpretation: Based on my review of conflicting Internet articles purporting to interpret this law — written by both experts and non-experts alike — there remains a slew of hugely important questions in need of answers. The most important questions relate to whether beneficiaries in the above class of family based petitions residing in the U.S. still need to apply for humanitarian reinstatement of the governing I-130 petition before seeking adjustment of status (the final stage in the immigration process).

Although it appears that beneficiaries whose petitioning relative dies after the beneficiary files for adjustment of status will not need to apply for humanitarian reinstatement, it seems there is much confusion as to whether such reinstatement must be sought if the U.S. petitioning relative dies while merely awaiting visa availability and prior to filing for adjustment of status. It would not surprise me in the least if CIS Headquarters ultimately confirm that — aside from cases where the beneficiary has already filed for adjustment of status — humanitarian reinstatement must be sought in all cases where the petitioner dies prior to the beneficiary obtaining permanent residence.

Other foreign national family members of a deceased who reside in the U.S. who were previously ineligible for U.S. immigration benefits, but have new eligibility based on the above law include:

• Derivative (spouse and children under 21 years) family members of a Deceased Principal Beneficiary of an Employment Based Immigration Petition (I-140)
• Certain T and U visa family members
• Certain Asylees/Refugees relative petition beneficiaries

As stated, CIS Headquarters has much work to do in interpreting this new law and giving guidance on many important unanswered questions. Our readers will be kept current on all developments in this regard.

In the past month, U.S. Citizenship and Immigration Services released a “Fact Sheet” outlining the law as it relates to a foreign national’s receipt of certain public benefits in the U.S. and the possible adverse consequences it might pose for his/her effort to become a U.S. permanent resident. In sum, the Fact Sheet makes clear that not all benefits will present adverse consequences, and that merely receiving a “need based” benefit will not, in and of itself, be a basis to deny an applicant their resident status.

A “public charge” has been defined as “an individual primarily dependent on the government for subsistence, as demonstrated by either receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” For almost as long as there have been U.S. immigration laws, there have been provisions setting forth the undesirability of having individuals come to our country to become a public charge. But for a handful of exceptions, those deemed “likely, at any time, to become a public charge” will be denied the right to live permanently in the U.S.

What factors are relevant in the determination?

1. But for a few exceptions, in the context of family based immigration, if the foreign national does not have an income eligible “sponsor” providing an Affidavit of Support, she will be deemed likely to become a public charge and her application for U.S. residence or immigrant visa will be denied.
2. Even if the affidavit of support requirement is met, other factors can be taken into account in the public charge determination, such as age, health, family status, assets, resources, financial status and education/skills as well as whether the individual has already received certain U.S. government benefits.

U.S. or state government benefits that will raise a red flag, but not necessarily lead to a public charge determination, include:

• Supplemental Security Income (SSI) under Title XVI of Social Security Act
• Temporary Assistance for Needy Families (TANF) cash assistance (part A of Title IV of the Social Security Act–the successor to the AFDC program)
• State and local cash assistance programs that provide benefits for income maintenance (often called “General Assistance” programs)
• Programs (including Medicaid) supporting individuals who are institutionalized for long-term care (e.g., in a nursing home or mental health institution)

Receipt of non-cash benefits (other than institutionalization for long term care) are generally NOT taken into account in the “public charge” analysis. Those benefits include:

• Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases; use of health clinics, short-term rehabilitation services, and emergency medical services) other than support for long-term institutional care
• Children’s Health Insurance Program (CHIP)
• Nutrition programs, including Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs
• Housing benefits
• Child care services
• Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP)
• Emergency disaster relief
• Foster care and adoption assistance
• Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary, or higher education
• Job training programs
• In-kind, community-based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter)

Lastly, as stated, not all applicants for U.S. residence are subject to public charge scrutiny, and those exempt applicants include: Refugees, Asylees, certain battered spouses or children, and host of other limited categories of immigrants.

PUBLISHED November 16, 2009 – “IMMIGRATION LAW FORUM”
Copyright © 2009, By Law Offices of Richard Hanus, Chicago, Illinois