It never fails. Whenever a new immigration provision is presented to Congress for consideration, or is proposed by the President or some other official in the Executive Branch, the media takes the ball and runs with it. It’s either presented as something it is not, or simply misunderstood to be something it’s not. Either way, the US audience, ranging from the general American John Q. Public demographic to the vulnerable 12 million undocumented demographic, gets excited, in different ways, and for different reasons. Notably, this provision will impact only limited number of prospective applicants, applicants who are ineligible to “adjust” status/ undergo all permanent residence processing in the U.S. and who are willing to visit a U.S. consular post in their home country for their “green card” interview.

The latest news has to do with an Obama administration initiative for processing “waivers of inadmissibility” and it proposes to streamline processing of certain applicants for permanent residence who under current law, must leave the US for an extended period for their final green card/ interview, and appear before a US consular officer in their home country. Instead of facing a 3 months or so wait to receive a decision on their waiver application while outside the US, the new proposal will allow for a wait as little as a few days outside the US, since the 3 months of processing is now being proposed to take place before the applicant’s departure.

And what is being decided in this period is an “I-601 waiver” application to excuse, or “waive”, the individual’s previous period of unlawful presence in the U.S. and consequent 3 or 10 year bars to reentry, where cases are approved only if the applicant can demonstrate that his denied reentry will pose extreme hardship for his U.S. citizen or permanent resident spouse or parent. Of course, there’s no guarantee all applicants for a waiver will be approved under this proposed program, but this new procedure will no doubt be of great comfort to families by letting them know ahead of time if the main obstacle (3 year bar) to their loved one’s reentry has been removed – and repeat, before the applicant leaves the US for their interview in their home country. Thus, if the applicant’s waiver application is denied, that decision will be known before any trip outside the US takes place. The applicant will then know there is no reason for the applicant to appear for their interview before a US consular officer in their home country, since he will know he will indeed be subject to a bar to reentry that has NOT been waived.

Again, this new provision is only at the proposal stage, and a final, working rule has yet to be implemented. In the meantime, no waiver filings will be decided in the US as proposed above. If implemented though, the rule will not impact applicants currently outside the U.S., who will continue to be subject to ordinary processing procedures now in place. Further, since this processing change is being presented as an act of Executive/Administrative “rulemaking” and not legislation, there is no need for congressional approval. All developments regarding implementation of this provision will continue to be reported on here.

PUBLISHED January 12, 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

This column is as much a warning to prospective victims as it is a source of basic immigration law information – especially for the 12- 15 million individuals living in the U.S. without immigration status.  Why a warning?  Because no matter the intelligence level of the prospective victim, the combination of his vulnerable state and the scammer’s profit motive, leads to the formation of the perfect storm in which the undocumented individual gets swindled.  The swindlers are neighborhood “notaries” or consultants, as well as even a few established attorneys.  Compared to the honest attorney who will conduct a consultation and advise the undocumented individual that no options to legalize his status exist at this time (and without a change in the law), the swindler will invent fictitious avenues toward legal status.

And the fictitious avenues sometimes will present as genuine, since after the swindled client plops down his $5,000 or $10,000 retainer, some type of approval notice may get issued by either the U.S. Department of Homeland Security/Citizenship and Immigration Services or the U.S. Department of Labor.  As the con progresses, and the swindled client further convinces himself that a bona fide service is being provided, he avoids asking and/or getting real answers to questions like:  A) “ok, yes, we have an approval on this stage of the case, but what is my end game?” or B) “when will I be issued my employment authorization, or green card?”   In the context of the scamming lawyer/consultant – client relationship, the answers to those questions – which should have been asked from the start of the relationship – are:  A) none and B) never.

An important step an undocumented, or any type of immigration law client can take to avoid getting scammed is by requesting that the attorney or service provider put in writing exactly which services are being provided and which goals are sought to be achieved.  Although a lawyer can never ethically guarantee a result in any given case, he/she certainly can confirm in writing what the client qualifies to be considered for under present law, and that such goals are viable or achievable under present law.   As to the fictitious avenues referenced above, the only way the swindled client will eventually achieve an end game, such as obtain employment authorization or green card is IF the law changes.

My guess is very few, if any, of the clients presented with fictitious avenues, would be otherwise willing to fork over tens of thousands of dollars to initiate a process if they knew the process they were initiating will only yield a result if the law changes.  It’s the “if the law changes” part that I have seen the swindling attorney purposely forget to include in his discussion with potential victims who are all too ready and willing to put money in the swindler’s pocket.

For most of the undocumented population, it’s a waiting game – a wait for some type of change in the law to allow a genuine avenue to legalize their status.  In the meantime, below is a summary of options at legalization or adjusting status for the undocumented or visa overstay under present law:

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.

4) EWI’s or Visa Overstays who are Battered Spouses or Children of U.S. citizens or residents:   whether you entered with or without a visa, or overstayed your visa, individuals who were the targets of their U.S. citizen or resident spouse’s or parent’s physical abuse or extreme mental abuse are eligible to be considered for US residence, and without having to depart the US for processing in their home country.  No 245(i) grandfathering is required for this type of immigration benefit.

5)  EWI’s or Visa Overstays who are the victims of certain types of crimes:   whether you entered with or without a visa, or overstayed your visa,  victims of certain types of crimes may be eligible for temporary status (U visa), including employment authorization, and eventually U.S. resident status.  Victims of the following types of crime will be eligible for consideration for U visa status, and eventually U.S. residence:  abduction, blackmail, domestic violence, extortion, false imprisonment, felonious assault, incest, involuntary servitude, kidnapping, manslaughter, murder, obstruction of justice, perjury, prostitution, rape, sexual assault, torture, trafficking, unlawful criminal restraint and, witness tampering – among others.  No 245(i) grandfathering is required for this type of immigration benefit.

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 employmentbased 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.

Getting back to the discussion regarding the immigration law consultation: Sometimes the most valuable piece of information the client will pay for in the course of an immigration law consultation is that no option to legalize his status truly exists under the present law, and that for the time being, he should put his wallet away.

PUBLISHED November 9, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois

Not surprisingly, the Obama Administration’s announcement of a re-shuffling of ICE enforcement priorities, including the administrative closure of certain pending removal cases of non-criminals – and with issuance of employment authorization to affected individuals, has left many immigrant families confused and misinformed.   In this case, the confusion and misinformation stems from both a lack of specifics provided on the program to date and the vulnerability and desperation of many impacted and non-impacted individuals.

As previously discussed here, the cases of some 300,000 removal (deportation) cases pending on the immigration court docket will be reviewed and considered for “administrative closure”, assuming the individual is a non-criminal and has humanitarian factors at play in their case, such as U.S. citizen family and evidence of good moral character.  Administrative closure effectively, and indefinitely, puts a halt to the deportation process.  Furthermore, an individual benefiting from the new administrative closure mercy will be eligible to obtain an Employment Authorization Document.

Since the initiative was announced a few weeks back, no further details have been given on this program, although there seems to be no good reason these impacted individuals should not be taking immediate action to seek ICE’s exercise of prosecutorial discretion for the dismissal or closure of their cases. But, for an individual to benefit from this program, they must be in removal proceedings already. Further, as of yet, no details have been given how individuals benefiting from the closure of their removal cases can apply for employment authorization.

With the lack of specifics and the hysteria most undocumented individuals are prone to at the sound of any type of forgiving immigration initiative, there is much confusion and misinformation in the various communities of exactly what this program is all about.   Even worse, there are professionals and pseudo/wannabe professionals in these communities seeking to exploit the lack of information and the desperation of the undocumented population by presenting the program as an amnesty – where an application can be submitted by any undocumented person, and with a professional and filing fee to be collected for the processing of such a fictitious case.

So, for those interested in this new program, here are some key points to take away at this stage:

*  The individual must be in removal proceedings to benefit from the program,

*  A request seeking prosecutorial discretion and administrative closure of cases of impacted individuals can be started now, although the procedure to facilitate issuance of employment authorization has yet to be an be established and,

*  This program is not an amnesty, or a program to be signed up for by any undocumented person.

PUBLISHED September 12, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois

After passing the House of Representatives last November, the most recent version of the DREAM Act failed because supporters were unable to gather enough Senate votes to overcome procedural hurdles. On May 11, 2011 Senator Dick Durbin of Illinois reintroduced a new version of the legislative proposal with the hope that the decade long struggle to turn this proposal into law finally succeeds (with a version of the bill first presented for congressional consideration back in 2001). 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. Like the debate on comprehensive immigration reform in general, the debate surrounding the DREAM Act will sadly be politics as usual – notwithstanding the fact that passage of this proposal makes all the sense in the world.

PUBLISHED May 11, 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

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

An important question that gets asked from time to time: Can an individual residing in the U.S. without legal immigration status access a federal or state civil court to recover damages for a contract breach, personal injury, or to facilitate a divorce? To the surprise of many, – almost always, YES!

In general, one’s ability to protect or assert their rights in a civil dispute – for example, relating to a contract breach, personal injury or divorce case – does not depend on the individual’s immigration status. The undocumented are not prevented by law from suing to collect money on a loan, to recover for damages as a result of a physical injury from a car accident or botched medical procedure, or to facilitate a divorce. The same applies for an undocumented individual who is being named as a defendant in a lawsuit – whether for contract breach, injury or divorce. The undocumented defendant is not prevented from defending himself just because he lacks lawful immigration status.

What about threats from the other side, such as: “if you do this or that…..I am going to have you deported?” Firstly, no single individual has the power to have someone deported, although nothing prevents them from saying these words, or even calling immigration authorities. Absent threats of terrorism though, the chances of authorities acting on a private citizen’s report of an undocumented individual living in our midst (among the other 15 million) are quite low.

What happens when I walk into a courtroom? Won’t a judge or other court personnel see to it that I am deported? No way.  Absent some really strange circumstance, the players in our civil judicial system have no interest in the immigration status of litigants, and that is assuming they even are in a position to understand a person’s immigration status and distinguish the documented from the undocumented. With an individual’s immigration status having no impact whatsoever on their rights as set forth in the underlying contract or statute, judges in civil courtrooms do not have, nor do they want, jurisdiction pertaining to the immigration status of litigants before them.

Of course, the reality is that much of the time an undocumented individual may be averse to putting himself in a situation where he is confronted with any of these issues or any legal system, on the chance, however remote, his stay in the U.S. could be endangered. This fear, although real, is usually not commensurate with the true risks at play – which are practically nonexistent. In truth, other than being in an especially vulnerable psychological state, an undocumented litigant is usually no worse off than a documented litigant when it comes to accessing our courts for any purpose. But to get an assessment of what, if any, risks an undocumented litigant faces in any given circumstance, a consultation with an immigration lawyer should put most questions to rest.

PUBLISHED October 14, 2010 – “IMMIGRATION LAW FORUM”
Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois