Immigration Reform and DAPA. What is it?

The immigration Reform Executive Order by President Obama has  a new kind of relief called DAPA. Brian Lerner states this will open up the doors for millions of people, but they must be notified if they qualify and they must do what is necessary to file the applications.

 

As of now, it is ordered by President Obama that the DAPA applications will be accepted starting 180 days after the issuance of the immigration reform for DAPA applicant. Hence, Brian D. Lerner, immigration attorney, explains that DAPA is the following:

The program will be open to individuals who:

  • have a U.S. citizen or LPR son or daughter as of November 20, 2014;
  • have continuously resided in the United States since before January 1, 2010;
  • are physically present in the United States on November 20, 2014, and at the time of

applying;

  • have no lawful immigration status on November 20, 2014;
  • are not an enforcement priority, which is defined to include individuals with a wide range of

criminal convictions (including certain misdemeanors), those suspected of gang involvement

and terrorism, recent unlawful entrants, and certain other immigration law violators

  • present no other factors that would render a grant of deferred action inappropriate; and
  • pass a background check.

 

See Brian D. Lerner speak about the new DAPA program discussed in the immigration reform USA news

 

Thus, this DAPA is meant for persons who have children born here in the U.S, are U.S. Citizens or Lawful Permanent Residents. Brian D. Lerner states over the years, families have been torn apart. Granted the parents were here in the U.S. illegally, but they had families consisting of children and they were deported from the U.S. They suffered, and their families suffered and their children and spouses suffered. Thankfully, claims Brian D. Lerner, DAPA has come along to essentially allow these people who qualify to stay here in the U.S. under the immigration reform for DAPA.

 

Some people are thinking that anybody and everybody is allowed to apply for DAPA. However, explains Brian D. Lerner, that could not be further from the truth. In tact one of the elements of this particular relief specifically states that the person is not to be an enforcement priority. Brian Lerner states that under the immigration reform for DAPA that there was a very detailed memorandum put out by the Secretary of Homeland Security and that it defines with some specificity what are to be considered the highest enforcement priority under Priority #1, the mid level priority under Priority #2, and the lowest priority under Priority #3.


Thus, the issues that will exist is whether or not under the immigration reform for DAPA if somebody is under a particular Priority of enforcement whether they can still put together a convincing immigration reform DAPA packet. The DACA part of the immigration reform does have some specific exceptions which have been placed into the requirements. Unfortunately, the immigration reform for DAPA does not. It is unclear, states Brian Lerner, whether this was intentional, or whether it was purposeful and that President Obama did not want to allow DAPA applicants to be able to apply for DAPA if they do have a criminal history. In that case, it is still possible to have a criminal history and not be under an enforcement priority. However, this would take considerable argument to make sure that you properly argue you are not an enforcement priority and you qualify for DAPA. You don’t want to risk being put into removal proceedings because you do not properly prepare the DAPA application. Thus, the immigration reform for DAPA exists and will allow millions of people relief, but Brian Lerner states you must do it correctly.

There are good changes on the horizon for Immigration Reform 2014

Immigration reform in 2014 has been issued. There are several items to Parole that are different, expanded and easier to get than in the past. Brian D. Lerner, immigration attorney explains that under immigration reform in 2014, first you would need to understand what exactly is ‘parole’ in order to have an appreciation of the differences.

 

At least three separate DHS memos address various aspects of “parole.” In the immigration context, parole refers to allowing an individual to temporarily enter the United States for purposes of significant public benefit or for humanitarian reasons without technically admitting the person into the country. Although parole is issued on a case-by-case basis, there is a long history of designated categories of individuals who may qualify for parole. “Advance parole” and “parole-in-place” are forms of parole. Advance parole refers to giving an individual currently residing in the United States in a temporary status permission to travel abroad for a short period and return to the United States without jeopardizing the existing status. Parole in-place is parole in which an individual who is already in the United States, but who is here without permission, is nonetheless granted parole without having to leave the country. Individuals granted parole—including advance parole and parole-in-place—may ultimately be able to gain lawful permanent status without leaving the United States, if they are otherwise eligible.

 

Brian D. Lerner states there are issues with this. For example, if somebody who might qualify under the immigration laws to adjust status in the U.S. – except for not being able to show legal entry, they might be able to use the parole. For example, they could qualify for DACA or DAPA under the immigration reform 2014, and because of that, they could apply for Advance Parole, leave the U.S. and then enter again legally. This legal entry would really be an admission to the U.S. states Brian Lerner. Because of that, the person could then adjust status in the U.S. assuming they have no other grounds of inadmissibility.

 

Here there is a specific change to immigration policy per the immigration reform 2014. Under direction from the Secretary of Homeland Security, DHS officials will be instructed to follow a 2012 immigration decision (Matter of Arrabally), finding that a lawfully present individual who travels abroad after a grant of advance parole does not trigger the three- or 10-year bars that ordinarily apply when a person departs the United States after residing here unlawfully for more than six months. Under this decision, individuals who would be eligible for LPR status but for the fact that their last entry into the United States was unlawful may be able to apply for permanent resident status upon their parole back into the United States. The new DHS instruction will ensure consistent application across the department. Assuming that this is actually followed, there will be consistency and a person leaving the U.S. under the immigration reform 2014, will be able to re-enter the U.S. without fear that they have just invoked the 3/10 year bar waiver. Brian Lerner states that prior to the immigration reform 2014, the adjudications of people re-entering the U.S. with the advance parole was inconsistent and different depending which officer you happened to get. Hopefully, this will end and there will be consistent adjudications.

 

Parole in Place adjudications has been expanded to include LPR relatives in the military as well as persons who intend to enter the military (not just personas already in the military.) Also, the Secretary of the Department of Homeland Security has stated that he would like USCIS to grant deferred action to persons who overstayed their visas and who have a relative who is a veteran. Thus, the immigration reform 2014 in fact has good news on the horizon for parole and should be used once the regulations are issued.

President Obama’s Immigration Reform also deals with Parole in Place for the military and inventors

At least three separate DHS memos address various aspects of “parole.” In the immigration context, parole refers to allowing an individual to temporarily enter the United States for purposes of significant public benefit or for humanitarian reasons without technically admitting the person into the country. President Obama’s immigration reform changes somewhat the policy.  Although parole is issued on a case-by-case basis, there is a long history of designated categories of

individuals who may qualify for parole.

 

“Advance parole” and “parole-in-place” are forms of parole explains Brian D. Lerner. Advance parole refers to giving an individual currently residing in the United States in a temporary status permission to travel abroadfor a short period and return to the United States without jeopardizing the existing status. President Obama’s immigration reform also deals with  Parole-in-place. This is a type of parole in which an individual who is already in the United States, but who is here without permission, is nonetheless granted parole without having to leave the country. Individuals granted parole—including advance parole and parole-in-place—may ultimately be able to gain lawful permanent status without leaving the United States, if they are otherwise eligible.

 

Thus, Brian Lerner states that the PIP – Parole in place will be somewhat expanded.  Parole in place to protect military families  is where it will be expanded under President Obama’s immigration reform. Secretary Johnson announced new policies to protect unauthorized families of the U.S. military and of those seeking to enlist. In November 2013, DHS issued guidance permitting parole-in-place for unauthorized family members of military personnel and veterans. The new guidance will expand the availability of parole-in-place, as well as deferred action, to family members of U.S. citizens and lawful permanent residents who seek to enlist in the U.S. Armed Forces. Under President Obama’s immigration reform, the Secretary also asked USCIS to consider granting deferred action to family members of current military personnel and veterans who have overstayed their visas.

 

A very interesting development according to Brian D. Lerner is that DHS officials will be instructed to follow a 2012 immigration decision (Matter of Arrabally), finding that a lawfully present individual who travels abroad after a grant of advance parole does not trigger the three- or 10-year bars that ordinarily apply when a person departs the United States after residing here unlawfully for more than six months. Under this decision, states Brian Lerner, individuals who would be eligible for LPR status but for the fact that their last entry into the United States was unlawful may be able to apply for permanent resident status upon their parole back into the United States. The new DHS instruction will ensure consistent application across the department. This might be a very good way for somebody to adjust status in the U.S. Brian Lerner explains that they could get the parole, come back into the U.S. and under certain circumstances adjust.

 

President Obama’s immigration reform also adds a completely new parole for investors, researchers, and founders of start-up enterprises. Brian Lerner states there are currently no new regulations on this, but USCIS has been directed to draft regulations for a new category of parole to enable certain inventors, researchers, and founders of start-up businesses to enter the United States before they become eligible for a visa. Parole would allow these individuals to temporarily pursue research and development of promising ideas and businesses in the United States, rather than abroad. Thus, President Obama’s immigration reform has lots of good news on Parole for differing categories of persons and hopefully will get the regulations issued soon

District Court Complaint Alleges Immigration Actions Violate the Constitution and the APA

Fourteen states and four governors filed a complaint in the U.S. District Court for the Southern District of Texas seeking declaratory and injunctive relief, alleging that the Obama Administration’s executive actions on immigration violate the Constitution’s Take Care Clause and that DHS failed to follow the APA rule-making process before moving to implement the president’s order. The lawsuit further states that the action will “trigger a new wave of undocumented immigration” and that DACA “led directly to a flood of immigration across the Texas-Mexico border.”

ourt Says Arizona Fraud Conviction Involving Employment Application Is a CIMT

The Ninth Circuit held that the petitioner’s conviction under Arizona Revised Statutes §13-2002 is a crime involving moral turpitude (CIMT) because the statute criminalizes conduct that constitutes fraud. The panel held that the exception in Beltran-Tirado to the clearly established rule that a fraud conviction is a CIMT did not apply to this offense, where the underlying conduct involved the use of false information to obtain employment.

USCIS to No Longer Accept Prior Editions of Form I-129 as of 2/23/15

USCIS released a new I-129 Form, Petition for a Nonimmigrant Worker, containing an edition date of October 23, 2014. After February 23, 2015, USCIS will only accept the October 23, 2014 edition.

AAO Finds CSC Overlooked Evidence

The AAO sustained the appeal of an L-1A petition, finding that the beneficiary will be employed in a managerial capacity in his role as senior technical manager in transceiver engineering and that the beneficiary will assume the same position in the U.S. that he currently holds abroad. Courtesy of Clark Trevor.

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