Hi. I wanted to come and tell you today about the new executive action by the Obama administration. It’s a big deal. You might have heard the President speak on November 20th about Executive Action. What does that mean? Well, the President decided to allow the Department of Homeland Security to Defer Action for millions of people who either have come here as very young people – under 16 – or who have U.S. citizen children. It could be over five million people that might be affected.

So – the deferred action – what is that? It is a reprieve from deportation so that people who are covered under the deferred action would have an ability to stay here and have a work permit while they are staying here.

Who is eligible for the new Deferred Action?

Anybody who has been in the United States since January 1st, 2010, and can prove that they have been physically present from that time until now. That person must also have had a U.S. citizen child on or before November 20th, 2014. And, the person cant be excludable because of criminal actions, such as domestic violence, DUI or many other crimes. You can consult the Department of Homeland Security website – Citizenship and Immigration Services – www.uscis.gov for more information. In fact, all of the rules about these action are on the CIS website. That is where you should look.

Who is eligible for the student or DACA program?

What the president announced was that the DACA program – first announced in June of 2012 – will be expanded. There is no longer any age limit. To be eligible for that program, a person still must have come before they turned 16 years old, and they had to be here by January 1st, 2010, until the present, and be able to prove physical presence during that time. Since this program is aimed at students, there is also a requirement that the person have graduated high school here, have a high school diploma, or have a GED. Or, you could be in school and could be working on these things. Or you could be working on a GED program, or you could be in the middle of high school.

Many many people will be covered by that, since if a person came before they were sixteen and are now, they are 52 years old, and they have proof that they finished high school, they would potentially qualify.

Of course, there are the criminal bar disqualifiers. A person cannot have had certain crimes (DUI, domestic violence), and they cannot be a deportation priority. All of these things are explained in the memos on the CIS website.

So how can you prepare for this executive action and when is it coming?  Well we know for sure that some of the executive action is effective now.  The changes in deportation priorities are taking  effect right now.

The expanded DACA program for students will be ready, according to the guidance on the website, 90 days from when it was announced, so that means by the end of February.  By the end of February, a person who was older than 31 at the time of the last DACA should be able to apply for the new one.

And the next one for parents – it might be called DAPA, deferred action for parents – that one will not be ready until the middle or probably the end of May.  If the guidance from the last DACA  in 2010 is any help for us, we can be pretty sure that there will be a form available on the website for each of these programs just as the program is going into effect. So watch the www.uscis.gov website for updates and details.

How can you  prepare?

You can save money.  We know that the fee for the program is going to be $465.00, which is the fee for a work permit.  That’s number one. Number two: get proof of who you are.  Get a good copy of your birth certificate.  Get a copy of the birth certificate of any U.S. citizen children you may have, and remember : these should be official documents not the birth certificates given at a hospital that have the baby foot prints on them.

You need to document your physical presence.  This is a serious requirement.  The law says, not actually a law, but the guidance says you have to be able to prove you have been here since January 1, 2010. So, ideally you should have one document for each month of each year for the past 5 years.

If you have had any encounters with the police, or with immigration enforcement officers, or the immigration court, that could make youineligible for the program.   You need to find out exactly what happened.  If you were in court, you need to have your court documents.  If you were arrested, you need to get the police documents. Almost any time you have talked to a police officer is a significant event.  Please get documentation about that, and see an immigration lawyer before you decide to apply. 

One of the most important things I want to say today is DON’T apply if you are not eligible.  Find out more.  The information is on the USCIS website.  Before you decide to apply, take care in who you ask to help you. Be ware of people who say that they can get you that work permit really fast, or that you can apply now.  Now, in December is too early. Be sure that you follow the rules.   We think that this program is going to be a great thing and it will help millions of people. So, prepare yourself carefully, and apply when the time is open.

Olympia immigration attorney Lisa Seifert will speak in Port Angeles this friday at the Clallam County Bar Association’s monthly meeting.  Port Angeles is a significant location for immigration news in the U.S. due to the location of a new post in 2012, at an $11 million cost.   In 2013, the U.S. District Court found significant racial profiling practices and ordered the border patrol to undergo additional training and to be subject to additional monitoring to ensure profiling does not continue.

This past week President Obama took a small step to improve the situation for family members of some temporary visa holders.  Spouses of H-1b visa holders can now request work permission.  This administrative fix is proposed by the administration.  It does not require a legislative change.

In response? Republicans in Congress are starting to look more seriously at eliminating the 3 and 10 year bars.   THIS would be a welcome change.

http://www.washingtontimes.com/news/2014/may/8/republicans-look-to-loosen-penalties-on-illegal-im/

This past week, CIS introduced a 21 page version of the application for naturalization.  Included are many more questions apparently designed to find evidence of fraud and information about military training. Why?

The form is not REQUIRED by CIS until Monday, May 5, 2014.

An informative video about the form is on the CIS website here:

On April 1st, we will move to our new location at Percival Plaza.   You can find us at:

626 Columbia Street NW, Olympia, WA  98501.

Other contact information remains the same.  please come and visit.   Note – Business will be somewhat interrupted during April 1-3.

Chester Henry was a U.S. citizen born in Calgary Alberta. He lived the last 30 years of his life in Hoquiam, Washington, together with his pug dogs. Chester lived nearly all of his life not knowing that he was a U.S. Citizen as well as a Canadian citizen. He died recently in Olympia, at age 85.

Chester came to Seifert Law Offices after having been challenged by the U.S. Customs and Border Patrol, who thought that he should not be allowed back into the country where he had been living so many years. Border Patrol was right in one way — Chester had no proof that he had any right to be in the U.S. Seifert Law Offices helped Chester’s family establish that he had a right to claim full benefits of U.S. citizenship. Documents were gathered from the State of Pennsylvania (from a town that no longer exists!) and from Calgary Alberta, to submit to the U.S. Department of State. On the third try, the U.S. Passport office finally issued Chester the passport he requested, showing that without any question, Chester was a U.S. citizen.

Do you have a question about dual citizenship or about establishing proof of citizenship? Please contact us…

Lisa Seifert and Rebekah Fletcher presented an immigration program to the bench and bar at Thurston County Superior Court family courthouse on February 26th, 2013.  The program was a special request of Judge Anne Hirsch, who has been seeing more and more immigration issues, particularly in juvenile dependency proceedings.  She stated, “The session was truly one of the best sessions we have had for quite some time and I hope you may be able to present again…”

On January 2, 2013, the long awaited change to the I-601 unlawful presence waiver process was announced.  The exact rules and a new form will be announced prior to March 2, 2013, which is the effective date.

The changes will not help everyone — only those people who were eligible to see a waiver for unlawful presence waiver, and who have not yet left the country.  Here is what the Obama administration says about the new process.  New Waiver Process

Thanks to my colleagues at Benach Ragland LLP and other firms for their quick posting, from which this is derived)

Thousands of families, and dozens of our clients have been waiting for this change for so many years. The provisional waiver (also called the stateside waiver) process will allow many immigrants to take steps to regularize their immigration status. But its not for everyone. The new waiver provisions do nothing to change the requirement that an immigrant demonstrate that the denial of the waiver would cause extreme hardship to her U.S. citizen spouse or parent. The chief benefit of the change is elimination of the risk of long-term separation that has always been required to even seek the waiver. By changing the location of the waiver decision to inside the United States, and allowing immigrants to seek the waiver in advance of leaving the country, this new regulation should reduce the numbers of immigrants without status in a humane way that honors family relationships.

The new waiver process will allow the immediate relatives of U.S. citizens (only) to apply for a provisional unlawful presence waiver while they are still in the United States and before they leave to attend their immigrant visa interview abroad. Under the current system, applicants who are not eligible to adjust status in the U.S. to become lawful permanent residents must leave the U.S. and obtain an immigrant visa and unlawful presence waiver abroad. This necessarily involves a long (how long is also uncertain, between 3 and 11 months in the best cases) and a lot of uncertainty as the applicant had to prove extreme hardship to U.S. citizen parent or spouse in order to win a waiver for unlawful presence to get back to the United States. The new process is intended to reduce the reluctance of non-citizens who may wish to obtain a green card through their marriage to U.S. citizens or relationship to a U.S. citizen parent, because the applicant would no longer be deterred by lengthy separation and uncertainty of success imposed by the process.

Under the new rule, an applicant must meet all of these requirements to qualify for the waiver:

• Applicant must be present in the U.S. at the time they file for the waiver;
• Applicant must prove hardship to U.S. citizen spouse or parent;
• Applicant must be barred from readmission based only on unlawful presence in the U.S. and have no other grounds of inadmissibility;
• Applicant must be a beneficiary of an approved immediate relative petition;
• Applicant must have a case pending with the Department of State based on the approved immediate relative petition and paid the immigrant visa processing fee; and
• Applicant must depart from the United States to obtain the immediate relative immigrant visa,
• After reading through the 148-page rule, here are a few things you should know about the new process:
• The provisional waiver is limited to immediate relatives of U.S. citizens who can prove extreme hardship to the U.S. citizen:
• Applicants for the waiver must be able to prove extreme hardship to a U.S. citizen spouse of parent. The extreme hardship to a U.S. citizen spouse or parent is a discretionary determination based on a totality of circumstances.
• Many commentators argued for the provisional unlawful presence waiver to apply to certain additional family and employment based visa preferences. After all, the I-601 waiver is not limited to immediate relatives of U.S. citizens. However, DHS justifies limiting the provisional waiver process to immediate relatives of U.S. citizens because immigrant visas are always available for this category as opposed to preference categories. The DHS also hopes that the new rule would also encourage long-term LPRs to naturalize, so that their spouses, parents and children under the age of 21 can become immediate relatives and also benefit from the process.
• The waiver is limited to waiver for unlawful presence, and not other grounds of inadmissibility:
• Non-citizens who have other grounds of inadmissibility besides unlawful presence are not eligible for this new process but may nonetheless be eligible for the waiver and ultimately, an immigrant visa, through the existing process.
• The waiver is available to non-citizens in removal proceedings who have their proceedings administratively closed or terminated:
• Non-citizens in removal proceedings should have their proceedings administratively closed or terminated and apply directly to the USCIS for the waiver. For cases that have been administratively closed, the non-citizen should seek termination AND receive termination before departure from the U.S. to avoid triggering other bars of inadmissibility. The waiver is unavailable to applicants who have received deferred action but have final orders of removal or other grounds of inadmissibility beyond unlawful presence. Individuals with final orders of removal should seek to have their proceedings reopened and then administratively closed, in order to apply for the waiver with USCIS.
• Interviews still scheduled abroad:

Under the new process, immediate relatives who have already departed the United States must pursue their waiver from abroad. Also, immediate relatives who are still in the U.S. must still depart the U.S. for the consular immigrant visa process. However, the immediate relatives who are in the U.S. can apply for the provisional waiver from within the United States and wait until it has been approved to depart the country so that they do not face lengthy separation from their families.

Non-citizens who have already been scheduled for their immigrant visa interviews at consulates abroad are ineligible for the provisional unlawful waiver process. However, if the DOS scheduled the immigrant visa interview after the publication of the final rule, the non-citizen can apply for a provisional unlawful presence waiver. An individual can also qualify for the waiver process in the U.S. if she or he has a new immigrant visa cases because DOS terminated the immigrant visa registration associated with the previous interview and they have a new immediate relative petition filed by a different petitioner.

• A person can seek more than one waiver in case of denial or withdrawal:

The filing of the provisional unlawful presence waiver is not limited to those filing for the first time as DHS agrees that the one-time filing limitation that was initially proposed was too restrictive. Rather, when an applicant’s waiver has been denied or withdrawn, the applicant can file a new waiver with the appropriate fees. This is especially pertinent to cases where circumstances have changed since the first filing or the first filing was done through notarios or ineffective assistance of counsel.

• Who is not eligible?

USCIS has specifically stated that the following non-citizens would be ineligible for a waiver:

1. Applicants under the age of 17
2. Applicants subject to other grounds of inadmissibility (fraud, crimes, prior deportation as examples)
3. Applicants who have already scheduled an immigrant visa interview abroad before the publication of this rule
4. Applicants who do not have an immigrant visa pending with the Department of State, based on the approved immediate relative petition and have not paid the immigrant visa processing fee
5. Applicants in removal proceedings, unless the proceedings are administratively closed
6. Applicants subject to final orders of removal
7. Applicants with pending applications to USCIS for adjustment of status

• Potential Referral to ICE of Denied Cases:

For individuals who are denied a waiver, DHS will follow the NTA issuance policy in effect at the time of adjudication This means that individuals whose waiver request is denied or who withdraw before final adjudication will only be referred to ICE for removal proceedings if he or she is considered a removal priority by the agency, such as having a criminal history, engaging in fraud, misrepresentation, national security or public safety threat.

• No appeal process:

There is no appeal for denial of an I-601A waiver. However, in the event of denial, there are several alternate avenues such as filing a new form I-601A with the required fees or filing a form I-601 after attending the immigrant visa interview abroad and after the department of State determines that the individual is inadmissible. The I-601 can be appealed to the Administrative Appeals Office of CIS.

• No right to employment authorization or parole upon the filing of a waiver:

Not surprisingly, making an application for a provisional waiver carries no other benefits. A pending or approved provisional waiver does not create lawful immigration status, extend an authorized period of stay or protect non citizens from removal or grant any other immigrant benefit such as employment authorization or advance parole.

Applications can be filed sometime after March 4, 2013, when the rule is effective. The fee for the I-601 waiver will be $585.00, plus a biometric processing fee. Fee waivers will not be available.