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The immigration reform has stirred national debate. Is it constitutional?

As most people know at this point, immigration reform has hit the U.S. through an executive order by President Obama and not through Congress. Brian Lerner explains that there is a hefty debate going on with this issue as to whether the immigration reform was constitutional or not.

See Brian D. Lerner speak about the immigration reform news 2014 about the new DACA

The Republicans are angry and state that Congress should be making laws regarding immigration reform. However, the U.S. Senate prepared a complete bill for immigration reform. It included an overhaul of both enforcement and affirmative immigration. However, explains Brian D. Lerner, when the Bill was sent to the U.S. House of Representatives, it sat there and sat there and sat there. The Speaker of the House would not even bring it for an up or down vote. Thus, while the Republicans are now furious that President Obama took the immigration reform in his own hands, the statements that Congress should do something is a bit disingenuous. They may have disagreed with the Senate version of the Bill, but why not put it up for debate? Why not allow it to go for a vote? Rather, they did nothing. Thus, explains Brian D. Lerner, Immigration Attorney, it is not as though President Obama came rushing through the doors to do immigration reform. Rather, he waited 1 ½ years after the Senate passed a bill. Clearly the immigration system is broken and immigration reform is needed.


Thus, the question: Is executive action by the President of the United States on Immigration Reform constitutional? In actuality, all the way back to the first President of the United States, George Washington, there have been executive orders. In this case, only when Congress has failed to act, did President Obama take action. In actuality, President Obama has not issued a lot of executive orders in his tenor as President of the United States. Now, for what seems like the first time, the House is stating they should debate and talk about the issue on immigration reform. That is great! If the President giving an executive order  is what is necessary to get the House to do something for the people of the United States on immigration reform, then President Obama’s executive action is working.


The President has the constitutional power to carry out his Presidency. He has actually not made any new laws, but has instituted an executive order in which to implement his policies. This is his prerogative. The issue with the constitutionality of this executive order is further shown to be legal based upon the past. DACA or DREAMERS or Deferred action has been around for a couple of years. This was also made via an executive order by President Obama. Why did the Republicans not question this executive order? Why did they not bring a lawsuit or try to get some order that DACA itself was not constitutional? Here, explains Brian D. Lerner with the current executive order, DACA has been expanded. However, the expansion of DACA goes to basically taking away the upper age limit and making it so instead of being here in the U.S. since 2007, it would be 2010. Granted, the immigration reform and constitutionality of that reform is questioning the other provisions as well. However, it seems, according to Brian Lerner, that it is the content of the immigration reform and perhaps the expansion is what has many Republicans trying to fight it. However, according to Brian D. Lerner, the immigration reform has taken effect and there are a great many organizations and Law Professors all across the U.S. which have expressed their support for the immigration reform and its constitutionality. Of course there are about 17 Repblican Governors that have filed suit against the unconstitutionality of the immigration reform. It is the opinion of Brian D. Lerner, that this suit is more of a political statement as it is unlikely to be ruled that it is not constitutional.

There are certainly a lot of arguments on both sides. However, immigration reform is needed (whether you are for immigration reform or against immigration reform) and one way or another it must be done. Thus, if President Obama’s executive action has started the wheels of Congress debating and moving forward, then hopefully the momentum will continue and Congress will ultimately pass a much needed immigration reform package.

DREAMERS and Immigration Reform. What is needed?

Immigration Reform is here and Dreamers can get a work permit and get to be here legally if they qualify. Brian Lerner states that Dreamers has been able to apply for DACA or Deferred Action for the last 2-3 years. However, with the new immigration reform for Dreamers, we now have an expanded DACA and more people will qualify for Dreamers.


Brian D. Lerner, Immigration Attorney states that the following list is the general requirements of the immigration reform for Dreamers:

The program will be open to individuals who:


  1. Came to the United States before reaching your 16th birthday;
  2. Have continuously resided in the United States since January 1, 2010, up to the present time;
  3. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
  4. Had no lawful status on June 15, 2012;
  5. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  6. Have not been convicted of a felony, significant misdemeanor,or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Brian Lerner, immigration attorney states that the difference between this immigration reform for Dreamers and the last Immigration Reform for Dreamers is that it first takes out the upper age requirement. Basically, one could not be older than 31 years old at the time that the first immigration reform Dreamers was made. Now, they can be as old as they are. However, the applicant, in accordance with Brian D. Lerner, must have not been older than 16 years old when he or she entered the United States.

See Brian D. Lerner speak about the immigration reform news 2014 about the new DACA

Additionally, another element with the new immigration reform is that instead of having to be physically present from all the way back in 2007, they can now show that they have been physically present since 2010. Otherwise, the immigration reform for Dreamers is basically the same. One item of concern is that you have to look at the last item regarding the criminal history of the applicant. Now, with the new immigration reform for Dreamers, there is also a rather comprehensive memo from the director of Department of Homeland Security which makes clear that someone may be under priority 1, priority 2 or priority 3 or no priority at all for immigration enforcement. Thus, there is the interplay between the immigration reform for Dreamers requirement that somebody not have been convicted of a felony or significant misdemeanor or 3 or more other misdemeanors and how that interacts with the enforcement memo. Brian Lerner also states that the definition of what is a ‘significant’ misdemeanor and/or felony seems to have been clarified somewhat by the new priority memo. Assumably, if somebody qualifies for the immigration reform for Dreamers, they will not be deported – even if under a certain priority category for enforcement.  Brian Lerner states we will have to see how this plays out and hope that the immigration officials will follow properly the executive order as well as the new policy memorandum on enforcement priorities.

As  usual, with immigration reform for Dreamers, there are questions and ambiguities and issues that need to be resolved. However, in the end, it is a good expansion of the immigration reform for Dreamers and is constitutional under the law.

What evidence do you need to in order to prove the various requirements of physical presence in DACA?

The immigration reform expanded DACA and allows persons who meet various requirements to essentially get relief from deportation and removal from the United States, to be able to stay here legally and to get a 3 year work permit.

Brian D. Lerner states it is one thing to qualify for immigration reform under DACA and yet another thing to prove that you qualify. For example, one of the requirements is that you entered the U.S. before you were age 16. How can you prove this? There are various ways according to Brian D. Lerner, immigration attorney.  For example, for the immigration reform for DACA, you could provide declarations from persons familiar with when you entered the U.S. and how you entered. Of course, the more specific they can be in the declaration, the more credible and believable the declaration is.


Brian Lerner states you could also provide any receipts you have received when you entered the U.S. For example, invoices, rent receipts, tickets, groceries, etc. Of course, it might be many years ago you entered the U.S., and therefore, getting receipts might be difficult. Per the immigration reform requirements for DACA, you could also get tax bills you might have received when you were young. You could get your parents tax filings to show you were a dependant. If you want to school, states Brian Lerner, you could get report cards, school records, immunization records and the like.

For immigration reform, each case is different, but there are ways of properly putting together a petition so that you have a much better chance of success. Brian Lerner states in some cases, when people will try to submit the immigration reform DACA package themselves, they will put a statement to the effect: “I was here in the U.S. before I turned 16 years old”, but they will not provide one scintilla of evidence otherwise. Obviously, this will not work. Remember, states Brian Lerner, it is your burden to prove the elements for the immigration reform DACA, not Immigration’s burden to disprove it.


Another element, states Brian D. Lerner, that must be proven for the immigration reform for DACA is that you have been physically present in the U.S. since January 1, 2010. This is not the same type of burden that would be required as  would be the case showing you entered before you were 16 years old. This is a continuous showing of evidence, not just a single day. Thus, Brian Lerner states that under the immigration reform for DACA, you could also submit declarations from yourself and other people to verify how long you have been here and that you meet this requirement. However, if the declarations are given by persons that are not related to you, it will carry a lot more weight than for example if it is your mother or father.

See Brian D. Lerner speak about the immigration reform news 2014 about the new DACA

Additionally, the declarations must be of personal knowledge, not just what you might have told them. In other words, according to Brian D. Lerner, a supporting declaration must be believable, detailed and have sufficient facts to meet the burden of proving this requirement for the immigration reform for DACA. Here instead of simply showing school records from when you were 16, you could show the years of school records from 2010 up until the present. You could get evidence that you have worked and get payroll records and tax records for all those years. If you rent, you could get rental statements and lease agreements and evidence you have paid utilities for all the various years in question.

Brian Lerner states that you could get court documents if there were any court action, or you could get various records that you were under medical care or in some type of proceedings. Brian Lerner states that just submitting one form of evidence is probably not sufficient and will not meet your burden for the immigration reform requirements.

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


  • 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.

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

President Obama’s Immigration Reform Requirements extends to visa processing and employment based visas

Brian D. Lerner states that the Presidential Memorandum on visa modernization deals with the immigration reform requirements for visa processing and employment based visas.  On November 21, 2014, the President issued the Presidential Memorandum on “Modernizing and Streamlining the U.S. Immigrant Visa System for the 21st Century.” In this memo, Brian Lerner states the President called on immigration agencies to develop recommendations to improve the current visa system, while at the same time reinforcing that legislative reforms were needed to bring the U.S. immigration system in line with current economic and national security needs. He has directed the Secretaries of the Departments of Homeland Security and State, working in consultation with the White House, the Attorney General, the Secretaries of Agriculture, Commerce, Labor, and Education, and non-governmental stakeholders to submit recommendation to him by March 20, 2015. The immigration reform requirements are quite extensive. As other people will very well know, it takes many years for visa numbers to become current. Hopefully, states Brian D. Lerner, when  the immigration reform requirements will greatly decrease visa waiting times and  allow families to get together years sooner.


The immigration reform requirements states that the recommendations shall be designed to ensure (1) that the processing of all immigrant (permanent) and non-immigrant (temporary) visas is done efficiently, with an emphasis on reducing costs, waste, and fraud while improving services; (2) that all available immigrant visa numbers are used consistent with demand; and (3) that a stronger technology infrastructure exists to improve the applicant’s experience, enable better oversight, and eliminate duplicative systems. The immigration reform requirements states that the recommendations must include metrics for measuring progress in implementation and in achieving service improvements, while still protecting U.S. border integrity and economic opportunities for U.S. and foreign workers. Brian Lerner states this is somewhat ambiguous what will actually happen, but it is certainly promising.


What changes are proposed for employment-based visas asks Brian D. Lerner. The immigration reform requirements lists that  DHS Secretary Jeh Johnson issued a memorandum outlining new policies that support U.S. high-skilled businesses and workers by better enabling U.S employers to hire and retain foreign workers. First, the Secretary directed USCIS to take steps to reduce wait times for employment-based immigrant visas and improve visa processing. Far too often, visas have gone unused due to processing issues. In accordance with the immigration reform requirements, USCIS will work with the Department of State (DOS) to ensure that all visas authorized by Congress are issued to eligible individuals when there is sufficient demand. USCIS also will work with DOS to improve the process for determining when immigrant visas are available to applicants during the fiscal year. In addition, the Secretary directed USCIS to consider regulatory or policy changes that ensure that individuals with pending immigrant visa petitions will not lose their place in line if they change jobs. Brian Lerner states this will be a welcome addition to the immigration reform requirements insofar as it will allow a way out for employees waiting year after year for the visa number to become current.


Next, the immigration reform requirements state that the agencies have announced a series of policy changes intended to prevent ambitious and creative people, many of whom received their higher education in the United States, from continuing to leave the country and work abroad—a trend that has created great uncertainty and frustration for employers. The proposed changes will include:

  • Reforms to the Optional Practical Training (OPT) program, which authorizes foreign students before and after graduation from U.S. schools to gain experience through work in their fields. The changes would expand the degree programs eligible for OPT. In addition, they would allow foreign students with degrees in designated science, technology, engineering, and mathematics (STEM) fields who are already eligible for OPT to work for a longer period in the United States states Brian D. Lerner;
  • Expanded opportunities for foreign inventors, researchers, and founders of start-up enterprises to conduct research and development and create jobs in the United States.
  • Consolidated guidance to ensure greater consistency in the adjudication of L-1B visas for “intracompany transferees.” These visas allow multinational companies to transfer certain managers, executives, or persons with specialized knowledge in their fields to the United States for a temporary period. Brian D. Lerner states that the immigration reform requirements is very good here considering that the L-1B program has suffered considerably in the past.
  • Increased flexibility in the rules permitting applicants for employment-based permanent resident status to change jobs (called “porting”), if their applications are stalled due to processing delays.
  • Review of the Department of Labor’s certification process for foreign labor, known as the PERM process. The certification process is an initial step in obtaining employment-based permanent resident status and requires DOL to determine that there are not sufficient U.S. workers for the position and that employment of the foreign worker will not adversely affect U.S. workers. Perhaps, states Brian D. Lerner, this will greatly increase the efficiency of the PERM process.
  • Finally, the immigration reform requirements  list that completing work on current initiatives such as providing employment authorization to certain spouses of foreign workers with H-1B visas (i.e., high-skilled, temporary workers) who have been approved to receive permanent resident status based on employer sponsorship. Brian D. Lerner states that this immigration reform requirement would be a welcome addition to the H-1B program and get it inline with the E-2 and L-1 which allows spouses to work.

The Immigration Reform and when it becomes effective

The immigration reform by President Obama has several different provisions states Brian D. Lerner. Many of those provisions have different dates upon which they will become effective. The immigration reform provides a new DAPA, an expanded DACA, updated Prosecutorial Discretion standards through different priorities, expanded standards for eligibility for the Provisional Waiver and various other matters.


Brian D. Lerner, Immigration Attorney states that there are different priorities and exceptions to the those priority standards. The revised guidance shall be effective on January 5, 2015 states Brian D. Lerner. Implementing training and guidance will be provided to the workforce prior to the effective date for the immigration reform. The revised guidance in the immigration reform memorandum applies only to foreign nationals encountered or apprehended on or after the effective date, and aliens detained, in removal proceedings, or subject to removal orders who have not been removed from the United States as of the effective date. Therefore, Brian D. Lerner suggests that if you are in Removal Proceedings right now, it might be a good idea under immigration reform to request a continuance from Immigration Court until after January 15, 2015.

Nothing in the immigration reform guidance is intended to modify USCIS Notice to Appear policies, which remain in force and effect to the extent they are not inconsistent with the immigration reform memorandum. The actual Memorandum put out by Jeh Johnson actually rescinded many prior memos. Brian Lerner states that the official memorandum actually have been rescinded:


“Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and  Removal Of Aliens,” (ICE, John Morton, Mar. 2, 2011), “Exercising Prosecutorial Discretion Consistent with the Civil Enforcement Priorities  of the Agency for the Apprehension, Detention, and Removal of Aliens,” (ICE, John  Morton, June 17, 2011),  “Case-by-Case Review of Incoming and Certain Pending Cases,” (ICE, Peter  Vincent, Nov. 17, 2011) , “Civil Immigration Enforcement: Guidance on the Use of Detainers in the Federal,  State, Local, and Tribal Criminal Justice Systems,” (ICE, Dec. 21, 2012) , “National Fugitive Operations Program: Priorities, Goals, and Expectations,” (ICE,  Dec. 8, 2009) , “Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants,” (Nov. 20, 2011).

Watch Brian D. Lerner speak about immigration reform enforcement priorities

Brian Lerner states that Immigration reform has made it that the following memoranda remain in effect:  “Revised Guidance for the Referral of Cases and Issuance of Notices to Appear  (NTAs) in Cases Involving Inadmissible and Removable Aliens,” (USCIS, Nov. 7,  2011) and “Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs,” (ICE, John Morton, June 17, 2011).


Thus, Brian Lerner notes that since so many of the prior policy memorandum have been revoked and are no longer in effect, it only shows how much more important the new policy memo on enforcement and removal of aliens and priorities of removal will be. In fact, the memorandum makes clear that all of the divisions under the Homeland Security will and should follow the mandates of the memorandum.

Immigration reform is here and while there are more than 15 governors suing President Obama claiming that the immigration reform is unconstitutional, there are far more Professors, businesses, have written their support for the immigration reform. Maybe, states Brian D. Lerner, the immigration reform will move Congress to pass a comprehensive immigration reform bill. Maybe this executive order leading to certain immigration reform will be the precursor to a much bigger and much broader immigration reform.

Court Says Stop-Time Rule Has Impermissible Retroactive Effect on 1995 Theft Offense

The Fourth Circuit granted the petition for review and remanded, finding that the 1996 stop-time rule under INA §240A(d)(1) had an impermissible retroactive effect on the petitioner’s 1995 credit card theft offense and that he could be eligible for cancellation of removal since he accumulated the seven years of continuous residence.

Immigration Reform: The new Prosecutorial Discretion Memo and Priorities for Apprehension

Immigration Reform: How to get prosecutorial discretion from the different Priorities

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