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 (I-485, green card application for individuals living in the U.S.) 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, continue to be scheduled efficiently for both permanent resident and U.S. citizenship applicants, with card production for approvable permanent resident applicants usually takes place within approximately 120 days of filing.  Oath ceremonies for approvable U.S. citizenship applicants are issued within 120-150 days of filing, usually scheduled within just a week or two of the interview.

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

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.  As of late, however, I am noticing that the adjustment of status filings of parents of adult U.S. citizens are being transferred to local CIS offices with greater frequency these days, especially in the case of those parents who have overstayed their visas.  However, the fact an adjustment of status applicant in the “Immediate Relative – or IR” context does not necessarily disqualify the applicant from being approved for residency.

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 4- 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, are not prepared correctly, additional weeks or months can be added to Employment Authorization Document and/or I-485 processing times – since CIS will issue a Request for Evidence for documents or information deemed missing.

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.  The issues that most commonly impact eligibility for permanent residence include an applicant’s criminal background, history of deportation/removal proceedings, fraud questions – especially with regards to a current marriage or a prior marriage based immigration filing, significant immigration violations, and possible false claims to U.S. citizenship in various non-immigration contexts.

In general, though, when an individual’s 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 2, 2013 – “IMMIGRATION LAW FORUM” Copyright © 2013, By Law Offices of Richard Hanus, Chicago, Illinois

In the coming week, U.S. Department of Homeland Security/Citizenship and Immigration Services offices across the U.S. will begin implementation of a new “Customer Identity Verification” process.  In the interest of national security and identity fraud prevention, applicants for U.S. citizenship, permanent residence, and other benefits, will now be required to submit to an additional biometric fingerprinting procedure to confirm their identity when appearing for their interview at a local CIS office.  This procedure, which will be in addition to a biometric fingerprint appointment scheduled just after application filing, is designed to provide an additional layer of security and identity verification for individuals seeking green cards or U.S. citizenship.

As stated, the procedure will be carried out on the day of the scheduled interview, and just prior to the actual interview, with 2 electronic fingerprints and photographs being taken of the applicant.  It is advisable that individuals appear at their local CIS office at least 15 minutes before their scheduled interview time to accommodate this new procedure.

PUBLISHED May 1, 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

Before intending family-based immigrants are issued their visa, or approved for adjustment of status, the petitioning U.S. family member or their joint co-sponsor will have to submit an I-864 Affidavit of Support (or acceptable I-864 variation) and most of the time, satisfy certain income requirements.  The most common exception is the option for a petitioner to prove their financial health by way of ownership of sizable liquid assets as evidenced by bank/brokerage account statements or real property appraisals.  The income requirement applicable to most petitioners is 125% of the poverty level as determined by the U.S. Department of Health and Human Services.  For sponsors residing in the lower 48 contiguous states in the U.S., applicable guidelines are set forth below:

2013 Poverty Guidelines for the 48 Contiguous States and the District of Columbia 

Size of family unit       Poverty guideline       125%

2                                      $15,510                    $19,388

3                                      $19,530                    $24,413

4                                      $23,550                    $29,438

5                                      $27,570                    $34,463

6                                      $31,590                    $39,488

7                                      $35,610                    $44,513

8                                      $39,630                    $49,538

For family units with more than 8 members, add $5,025.00 for each additional member to meet the required 125%.  Poverty Guideline level

PUBLISHED February 27, 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 battered spouse, whether a man or woman, is a protected class in the world of immigration law. Sensing that foreign nationals who marry U.S. citizens or residents can become vulnerable to the U.S. spouse’s physical or extreme mental abuse, Congress enacted a variety of laws aimed at protecting these foreign nationals. These laws create avenues for the foreign national to obtain U.S. resident status, no matter the cooperation or support of the abusive U.S. citizen. The avenues are available in the following contexts:

I-360, Battered Spouse Self Petition (for those not yet issued a green card):

Whether the foreign national is in lawful nonimmigrant (temporary) status, overstayed their nonimmigrant status, or entered without a visa in the first place, the I-360 Battered Spouse Self Petition can be a vehicle for a battered spouse to obtain U.S permanent residence, and again, without the assistance or support of their U.S. spouse. Battered spouse self-petitioners must be of “good moral character”, and document their petitions with one or more of the following types evidence: 1) their own detailed affidavits, as well as those of witnesses to the abuse, 2) hospital or police records, 3) order of protection, 4) records detailing any therapy or other mental health services sought by the abused spouse, 5) photographs of any physical injury, 6) affidavits from clergyman. With the approval of a Battered Spouse Self Petition, the foreign national has a direct path to proceed with an I-485, Application to Adjust Status to Permanent Resident.

I-751, Waiver of Joint Petition to Remove Conditional Basis on Permanent Residence (for those issued only a 2 year, conditional green card)

When a foreign national is first accorded resident (green card) status based on marriage, it’s usually for only a 2 year conditional period. At the end of this period, ideally the marriage is intact, and the husband and wife file a Joint, I-751 to confirm and document their cohabitation at time of filing and for the two years following conditional green card issuance. However, when the marriage does not work out, including when the foreign national has been the victim of the U.S. spouse’s physical or extreme mental abuse, a waiver, or an excusing, of the joint petition, is available, and where only the immigrant spouse’s signature is required. An I-751 waiver request will be granted when the foreign national can prove:

a) that the underlying marriage has been dissolved and that the relationship was entered into good faith and not just for the purpose of obtaining immigration benefits,
b) that the denial of the waiver request would result in extreme hardship to the applicant and their family, OR
c) the applicant is a battered spouse and was the victim of physical abuse or extreme mental cruelty at the hands of their U.S. petitioning spouse.

In support of the waiver request, the applicant should be ready to submit documentation, if available, reflecting that for at least some period of time the couple shared a residence, such as joint bank account statements, tax returns, insurance records, credit account statements, photos or other documentation reflecting a shared residence or cohabitation is helpful.

Even more important to waiver filings submitted on a battered spouse basis – as is the case with the self-petition discussed above, is the inclusion of detailed affidavits from the applicant, witnesses and sometimes even a mental health professional, attesting to the sincerity of the marriage and the abuse inflicted upon the foreign national by their US spouse. These affidavits are especially valuable when the joint residence documentation described above is not available – as is not uncommon when the marriage at issue is filled with turbulence or disharmony.

Cancellation of Removal for Battered Spouses: If the foreign national is placed in removal proceedings after, for example, the underlying marriage based application is withdrawn by the US spouse – leading to the denial of the green card application, the foreign national also has the option of applying for Cancellation of Removal as a Battered Spouse before the Immigration Court. This application, if approved, also leads to the foreign national being accorded resident status, with the decision on such an application resting with the Immigration Judge. This application involves many of the same requirements as the I-360 Battered Spouse Self Petition, although applicants for Battered Spouse Cancellation of Removal also must document their physical presence in the U.S. for a three year period leading up to their application AND that their removal from the U.S. would cause them, their child, or their parent, “extreme hardship.” Importantly, battered spouses awaiting a final court date for a hearing on their Battered Spouse Cancellation applications (sometimes up to 2 years), are eligible to receive an employment authorization document.

Obtaining approval of any of these types of immigration filings is never easy. However, half the battle for so many foreign nationals in most any immigration law quandary is getting straight information about their options, and simply knowing which options exist and which do not.

PUBLISHED November 3, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois

No doubt by now you have heard the one about the foreign national who walks into the local Secretary of State’s office to get a driver’s license, and walks out a licensed driver, an organ donor AND a registered voter. As a voter registrant, that’s where the story begins to go downhill for many foreign nationals. Whether or not the foreign national goes on to vote, he ends up facing harsh consequences within the green card or citizenship application setting as a result of voter registration or voting. In many circumstances the application is denied, and in some cases, the applicant is placed in removal proceedings. In a decision handed down by the U.S. Court of Appeals, Seventh Circuit this past week, however, the court gives new life to individuals who are facing a denied application, or fighting deportation, as a result of being misled by a government official into registering to vote, or voting in a U.S. election.

In the interest of disclosure, I am the attorney who has been representing the foreign national at issue throughout removal proceedings, from the initial removal hearing stage, to the Board of Immigration Appeals, and now most recently, the U.S. Court of Appeals for the Seventh Circuit. (Importantly, as a federal court case, the matter is of public record, and that includes the identities of the parties and all of the surroundings facts) The case involves a Filipina who was petitioned to live in the U.S. by her U.S. citizen spouse. She eventually joined her spouse in the U.S. on a K-3 visa, and was to undergo the final processing of her green card while in the U.S. But between the time she arrived on her visa, and the time she appeared at her green card interview at the local Homeland Security/Citizenship and Immigration Services office in Chicago, she had an encounter with a government official that would turn her life upside down for the next 6 years.

The encounter was with an official at the Illinois Secretary of State’s office in Bloomington, Illinois, where she applied for her driver’s license. In support of her application, our Filipina presented documentation establishing her identity and legal status in the U.S., including her Philippines passport, and K-3 nonimmigrant visa. In response to her submission, the government official asked her 2 questions: 1) do you want to be an organ donor? and 2) would you like to register to vote? Not supposing her own ineligibility for either – since it was a government official offering up these choices AND after he reviewed her identity and immigration documents – she said yes to both. At no point during this process, did she claim to be a U.S. citizen. From there, she signed where told, was issued her driver’s license, and went home on her merry way. Weeks later, she gets a voter registration card in the mail, thus further, and reasonably, establishing in her mind her eligibility to vote in the U.S. Eventually, she carries out what she sees as her civic duty, and votes in a U.S. congressional election.

At her green card interview several months later, she honestly discloses all of these events in response to the immigration official’s questions about registering to vote or voting in the U.S. And that’s where things get really bad. Not only is her green card application denied, but her work permit is cancelled, and she is eventually placed in removal proceedings.

So how is it that two well-intended, honest folks who go through the trouble of adhering to every rule and instruction in legally bringing a spouse to the U.S., end up having to fight off the recently arrived spouse’s deportation? Answer: the law can be a tangled web, and these folks got caught in it.

No doubt, each of the laws at play were enacted with the best of intentions. Most notably, we have an immigration law that says foreign nationals are to be denied U.S. residence and removed from the U.S., when they vote in violation of state or federal law. And the federal voting law at issue here is such that a non-citizen who votes is considered to be unlawfully voting – no matter what – and even if the voter is acting innocently and does not know it’s wrong to be voting. i.e. no mens rea is required.

However, after many years of litigation, and appeals, the U.S. Court of Appeals has declared that in the context of immigration proceedings, such as in this case, the defense of “entrapment by estoppel” – or official authorization – is relevant in determining whether the specified unlawful conduct took place. That is, when a person reasonably relies on the guidance of a government official in committing some act, that person should not be deemed a criminal or legally penalized if that act turns out to be unlawful.

Put simply, just as we would never ticket a motorist who is waved through a stop sign by a police officer, a foreign national should not be denied their green card and deported after being waved through the voter registration and voting process by government officials. In remanding the case for further proceedings, the Seventh Circuit stated: “if the Immigration Judge does credit (her) statements about what occurred, the Department of Homeland Security should give serious consideration to withdrawing its proposal that she be declared inadmissible and be removed from the United States. A person who behaves with scrupulous honesty only to be misled by a state official should be as welcome in this country in 2012 as she was when she entered in 2004.”

Last week was a good week for this foreign national, and hopefully the process will play out as urged by the Seventh Circuit. For more details on this case, see KEATHLEY v. Eric H. HOLDER, Jr., Attorney General of the United States – No. 11–1594 (Seventh Circuit, August 22, 2012).

PUBLISHED August 27, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois

To address the various issues presented by the hundreds of thousands of undocumented individuals living in their state, including the security of their state’s border with Mexico and the drain on state coffers, the State of Arizona took the extraordinary step of enacting a state law criminalizing violations of U.S. immigration law. Specifically, the Arizona law was designed to empower state law enforcement agencies with the authority to arrest and criminally prosecute immigration law violators present in their state, with violators turned over to federal authorities for the initiation of removal proceedings after serving a state sentence. Violators of this law however, were to only become subject to arrest and prosecution if the law enforcement officer has a “reasonable suspicion” that the suspect is living in the U.S. in violation of immigration law. On June 25, 2012, the U.S. Supreme Court, in a split decision, weighed in, declaring most of the law as unconstitutional, as it would enable the State of Arizona to intrude on authority the US Constitution specifically and exclusively delegates to the federal government.

The Supreme Court majority, in arriving at its decision to strike down most of the provisions, declared that the law flies in the face of the explicit constitutional prohibition against states acting in realms where the federal government has sole jurisdiction, such as immigration policy and border control. According to the decision, Arizona may not prosecute a violator of U.S. immigration law in a state criminal court, since a) U.S. immigration laws are almost entirely civil in nature (and not criminal laws) and b) are to be enforced solely within a federal law enforcement context. Left in place however, is one of the law’s most controversial features – the section some call the “show me your papers” provision, requiring local law enforcement personnel to inquire into a person’s immigration status if the official suspects the person is in the country illegally.

The Supreme Court’s decision can be seen as just one more percolating event as our society continues on the path of addressing, or perhaps not addressing, the reality of having 12 million living in the U.S. without legal immigration status. Other percolating events include President Obama announcing an executive “Dream Act” type initiative to allow certain young adults who were brought to the U.S. while under the age of 16, to live in the U.S. legally and with employment authorization for at least a 2 year period. The percolating big picture of course also features opposing voices in the conversation, including various prominent politicians, and even Supreme Court Justice Antonin Scalia, who accuse President Obama of failing to enforce current U.S. immigration laws and of exercising powers not within his authority by implementing this new Dream Act type program.

As stated previously in this column, the importance of Arizonians’ concerns with regard to crime, border enforcement, and the use of its financial and natural resources should not be minimized. However, the answer lies not in draconian, desperate state action, but solutions that will come from our U.S. Congress and President. Hopefully, strong Congressional and Presidential leadership will prevail, with the American public being reminded that it was former President George W. Bush, along with John McCain and legions of other Republicans who most recently championed legislation to strengthen U.S. borders AND enact comprehensive immigration reform – with a path to U.S. citizenship for most of our country’s undocumented population. Unfortunately, now that it is President Obama, and legions of Democrats who are championing this dual initiative, there are conveniently only a handful of Republicans supporting the cause, with most Republicans speaking to American voters’ fears, anger, and resentment. And of course, let’s not forget that when it comes to immigration law enforcement, contrary to what many vocal Republicans would today have us believe; it is President Obama who has been enforcing U.S. immigration law like no other President in recent history.

In realistically assessing the options available to address the question of what to do with our society’s undocumented population, one can be sure the option of initiating removal proceedings against 12 million individuals is in no way financially, logistically, or even emotionally realistic. Rather, the option advocated by President Obama, and previously advocated by President George W. Bush and presidential contender John McCain, featuring enhanced border enforcement and legalization of the undocumented is the sensible approach and one superior to mass deportations or the status quo. But for this realistic, common sense answer to have a chance, we will need two important ingredients: 1) honest and gutsy presentations by politicians and 2) a clear thinking, and practical, public. That seems like a long shot these days.

PUBLISHED July 3, 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