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President Obama’s new executive action for an immigration plan (dapa and daca ii)

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DEFERRED ACTION – discretionary determination to defer removal action of an individual as an act of “prosecutorial discretion”.

“Deferred Action” (DA) does not confer lawful status upon an individual. In addition, although an individual whose case is deferred will not be considered to be accruing “unlawful presence” in the U.S. during the period deferred action is in effect, deferred action does not excuse any previous or subsequent periods of unlawful presence.

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President Obama’s new executive action for an immigration plan (dapa and daca ii)

  1. 1. PRESIDENT OBAMA’S NEW EXECUTIVE ACTION FOR AN IMMIGRATION PLAN (DAPA AND DACA II) PRESENTED BY: DAVID H. NACHMAN, ESQ. & LUDKA ZIMOVCAK, ESQ.
  2. 2. DEFERRED ACTION – discretionary determination to defer removal action of an individual as an act of “prosecutorial discretion”. “Deferred Action” (DA) does not confer lawful status upon an individual. In addition, although an individual whose case is deferred will not be considered to be accruing “unlawful presence” in the U.S. during the period deferred action is in effect, deferred action does not excuse any previous or subsequent periods of unlawful presence. WHAT IS DEFERRED ACTION?
  3. 3. WHAT IS DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA)?  On June 15, 2012, the Secretary of DHS announced that certain people who came to the U.S. as children, and who meet several key guidelines, may make a request for consideration of DA for a period of two (2) years, subject to renewal, and would then be eligible for work authorization.  DACA allows certain individuals, who meet specific guidelines, to request consideration of DA from USCIS. Individuals who receive deferred action will not be placed into removal proceedings or removed from the U.S. for a specified period of time, unless terminated.
  4. 4. IF MY CASE IS DEFERRED, AM I IN LAWFUL STATUS FOR THE PERIOD OF DEFERRED ACTION?  No. Although action on your case has been deferred and you do not accrue unlawful presence during the period of deferred action, deferred action does not confer any lawful status.  Note the difference between “Unlawful Status” and “Unlawful Presence”.  The fact that you are not accruing unlawful presence does not change whether you are in lawful status while you remain in the United States. Because you lack lawful status until the time DHS defers action in your case, you remain subject to all legal restrictions and prohibitions for individuals in unlawful status.
  5. 5. DACA – DOES A PATH TO GREEN CARD OR CITIZENSHIP?  No. Deferred action is a form of prosecutorial discretion that does not confer lawful permanent residence status or a path to Citizenship.  Only the Congress, acting through its legislative authority, can confer these rights.  This is one of the most misunderstood concepts about DA.
  6. 6. HOW TO QUALIFY FOR DACA? To qualify, an individual must:  Have arrived in the U.S. when they were under the age of sixteen (16); and  Have continuously resided in the U.S. for at least five years prior to June 15, 2012 and have been physically present in the U.S. on June 15, 2012; and  Currently be in school, have graduated from high school, have a GED, or be an honorably discharged veteran of the U.S. Coast Guard or the U.S. Armed Forces; and  Not have been convicted of a felony offense, a “significant misdemeanor offense,” three or more non-significant misdemeanors, or otherwise pose a threat to national security or public safety; and  Have been under thirty-one (31) years of age on June 15, 2012.
  7. 7. HOW DO I FILE MY APPLICATION? Forms and Instructions:  Form I-821D, Consideration of Deferred Action for Childhood Arrivals http://www.uscis.gov/USCIS/files/form/i-821d.pdf  Form I-821D Instructions: http://www.uscis.gov/USCIS/files/form/i-821dinstr.pdf  Form I-765, Application for Employment Authorization: http://www.uscis.gov/files/form/i- 765.pdf  Form I-765 Instructions: http://www.uscis.gov/files/form/i-765instr.pdf  Form I-765 Worksheet: http://www.uscis.gov/USCIS/Forms/Form%20Pages/i-765ws.pdf  Form G-1145, E-Notification of Application/Petition Acceptance: http://www.uscis.gov/files/form/g-1145.pdf  Where to File Your Deferred Action Application (USCIS): http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgne xtoid=e11fb8e59b529310VgnVCM100000082ca60aRCRD&vgnextchannel=fe529c7755cb9010 VgnVCM10000045f3d6a1RCRD
  8. 8. CHECKLIST FOR DREAMERS
  9. 9. ENROLLING IN AN ESL PROGRAM CAN HELP IN MEETING DACA GUIDELINES?  Yes, in certain circumstances.  You may meet the guidelines only if you are enrolled in an ESL program as a prerequisite for your placement in post-secondary education, job training, or employment and where you are working toward such placement. You must submit direct documentary evidence that your participation in the ESL program is connected to your placement in post-secondary education, job training or employment and that the program is one of demonstrated effectiveness.
  10. 10. WILL USCIS CONSIDER CIRCUMSTANTIAL EVIDENCE THAT I HAVE MET THE EDUCATION GUIDELINES?  No, circumstantial evidence will not be accepted to establish that you are currently in school, have graduated or obtained a certificate of completion from high school, or have obtained a general education development certificate.  You must submit direct documentary evidence to satisfy that you meet the education guidelines.
  11. 11. AM I ELIGIBLE FOR DACA, IF I HAVE BEEN CONVICTED OF FELONY OR MISDEMEANOR OFFENSE?  No, if you have been convicted of a “felony” offense, a “significant misdemeanor” offense, or three or more other misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, you will not be considered for deferred action under the new process except where DHS determines there are “exceptional circumstances”.  The definition of “exceptional circumstances” is not clear yet from the guidance provided.
  12. 12. Crimes: Misdemeanors: The federal criminal classification scheme governs whether an offense is considered a felony or misdemeanor for purposes of DACA. A misdemeanor is an offense punishable by more than five days, but less than a year. The label a State attaches to a particular offense is not relevant. Thus, some offenses that a State labels as a misdemeanor, but which include a potential sentence of more than one year, will be a felony. A violation which carries a sentence of five days or less, such as a municipal violation, may not be counted as a misdemeanor, but may nonetheless be taken into consideration under the “totality of the circumstances”. SPECIAL NOTE: Federal tickets, under the Assimilated Crimes Act, can be counted as a misdemeanor. Felonies: A “felony” is an offense punishable by a potential sentence of more than one year.
  13. 13. Significant misdemeanor: A “significant misdemeanor” includes any misdemeanor, regardless of the sentence imposed, involving: burglary, domestic violence, sexual abuse or exploitation, unlawful possession or use of a firearm; driving under the influence; and drug distribution or trafficking. * A “significant misdemeanor” may also include any other misdemeanor for which an applicant was sentenced to more than 90 days imprisonment, not including suspended sentences, pretrial detention or time held pursuant to an immigration detainer. ** The policy specifically notes that a conviction for driving under the influence of drugs or alcohol is a significant misdemeanor, regardless of the sentence imposed.
  14. 14. CAN I BE RECONSIDERED IF MY APPLICATION IS REJECTED?  The application for DA is not guaranteed  There is no Appeal from a denial of a DACA determination by CIS.  Applicants and Attorneys can contact the national Customer Service Center to request review if: (i) CIS denied the DACA application based upon abandonment in a case where the applicant responded to the RFE on-time; and (i) CIS mailed the RFE to the wrong address although the AR-11 was properly filed.  There is no prejudice to the applicant to file a new application for DACA benefits.
  15. 15. IF MY APPLICATION IS REJECTED, AM I SUPPOSED TO BE IN REMOVAL PROCEEDING?  If CIS rejects a request for DA and the individual is not subject to a FINAL ORDER of Removal , CIS will apply its existing NTA Guidance governing referral of cases to ICE and issue NTAs.  This guidance prioritizes the prosecution of cases involving criminal convictions, fraud, and threats to national security or public safety. Individuals that make misrepresentations on the DACA application will be treated as an enforcement priority and will be subject to criminal prosecution.
  16. 16.  USCIS issued guidance clarifying that the holding in Matter of Arrabally-Yerrabelly (that travel on AP is not a “departure” within the meaning of INA Section 212(a)(9)(B)(i) and therefore does not trigger the 3/10 year bars for unlawful presence) applies to all cases, not just the specific fact pattern in Arrabally.  Persons with DA can leave the U.S. with DA and enter as a PAROLEE and possibly seek Adjustment of Status later. PROVIDING CONSISTENCY REGARDING ADVANCE PAROLE (AP)
  17. 17. DEFERRED ACTION FOR CHILDHOOD ARRIVALS FLOWCHART
  18. 18. MISCELLANEOUS ITEMS FOR DACA  Audit:  Certain applications may be randomly selected for an Interview at the USCIS’s local office.  Considering the totality of circumstances and if the adjudicating officer determines that it is appropriate to conduct an interview, an applicant may be called for in-person interview at the USCIS local office.  Request for Review: If the application is denied, no formal appeal is allowed but an applicant can make a request for review.  DUI Offenses: USCIS to issue further guidance regarding the DUI offenses as some States (such as New Jersey) classify it as a Traffic Offense not a Significant Misdemeanor or Misdemeanor.
  19. 19.  I-765 Denial: USCIS to release further instruction regarding I-765 denials accompanying the I-821D where the applicant fails to prove economic necessity on I-765WS.  I-765 Data: I-765 data may be released to IRS.  Enrolled in ESL Course: USCIS will very likely approve the case but it may pose a problem at the time of renewal provided the applicant fails to establish that he/she failed to use the ESL course for career advancement or for further education.  §212 9(B)(ii) Clock: Approval of Deferred Action application will stop the §212 (a)(9)(B)(ii) clock but does not forgive the previous unlawful stay. USCIS to release further instruction regarding travel outside the United Stats using Advance Parole to specifically address the issue of §212 (a)(9)(B)(ii).  Casual, Brief and Innocent Departure: USCIS to analyze Casual, Brief and Innocent Departure from U.S. on case-by-case basis. MISCELLANEOUS ITEMS FOR DACA (CONT…)
  20. 20.  Circumstantial Evidence: Although not allowed but an applicant can use Affidavits to expand upon other evidence.  Expired Passport: An Applicant can use expired passport to prove his/her identity.  TPS Holders: TPS holders are not allowed to make application under this program as the process applies only to person holding no immigration status or unlawful status.  Satisfies All Conditions But Not In School Because of Medical Condition: Apply for deferred action using the Humanitarian Route by addressing a letter to the USCIS’ District Director. MISCELLANEOUS ITEMS FOR DACA (CONT…)
  21. 21.  On November 20, 2014, President Obama announced a series of executive actions to: 1) Crack down on illegal immigration at the border; 2) Prioritize deporting felons not families; and 3) Require certain undocumented immigrants to pass a criminal background checks and pay taxes in order to temporarily stay in the U.S.  The Executive Action package is very broad and touches many aspects of immigration law.  We provide a more detailed breakdown of the different initiatives the government plans to implement in the near future. (this initiatives have not yet been implemented, and there is currently no application procedure available)… PRESIDENT OBAMA SOUGHT EXPANDED DA:
  22. 22.  President Obama’s expanded Executive Actions announced in November 2014.  U.S. Citizenship and Immigration Services (USCIS) will create a new deferred action process, granting deferred action to eligible Parents of U.S. Citizens and Lawful Permanent Residents.  The U.S. Citizen or lawful permanent resident child must have been born on or before November 20, 2014. DEFERRED ACTION FOR PARENTAL ACCOUNTABILITY (DAPA)
  23. 23.  Includes step-children, if the marriage between the biological parent and step-parent occurred prior to the child’s turning 1, and adopted children, if the adoption took place prior to the child’s turning 16.  The parents must have been continuously present in the U.S. since January 1, 2010.  The parents must have been unlawfully present in the U.S. on November 20, 2014 and on the date the application is made. DEFERRED ACTION FOR PARENTAL ACCOUNTABILITY (DAPA) (CONTINUED.)
  24. 24.  The parents must learn English.  The parents must Pay Taxes Going Forward.  The parents must also not be an enforcement priority for removal from the United States. Individuals with removal/deportation orders issued on or before January 1, 2014 will not be a priority for removal. DEFERRED ACTION FOR PARENTAL ACCOUNTABILITY (DAPA) (CONTINUED.)
  25. 25.  The parent will be ineligible if convicted of a Felony, a Significant Misdemeanor or 3 or more Misdemeanors.  Not Misdemeanors: Traffic Violations including Driving without a License.  Expunged and Juvenile convictions may not be Disqualifiers.  Public Safety Threats Cannot qualify for DAPA – Gang Membership & Criminal Activities. DEFERRED ACTION FOR PARENTAL ACCOUNTABILITY (DAPA) (CONTINUED.)
  26. 26.  If DAPA is granted, the applicant will receive employment authorization for three years, provided they pass required background checks.  Applications were supposed to start to be accepted on May 20, 2015. However, a TRO was filed in a case called Texas vs. U.S. DEFERRED ACTION FOR PARENTAL ACCOUNTABILITY (DAPA) (CONTINUED.)
  27. 27.  Expands DACA to young people who came to the U.S. before turning 16 years old.  Have been present in the U.S since January 1, 2010 (continuous presence requirement has been shortened from June 15, 2007).  The expanded DACA initiative allows individuals born prior to June 15, 1981, to apply for DACA (removing the upper age restriction), provided they meet all other guidelines. THE PRESIDENT’S NEW DA PROPOSAL IN 2014 EXPANDED THE CURRENT DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA)
  28. 28.  The government plans to extend the period of DACA and DAPA work authorization from two years to three years.  On February 18th, 2015 the USCIS was supposed to begin accepting applications for the Expanded DACA (DACA II) program but the State of Texas filed a TRO in a case called Texas vs. U.S. EXPANDING THE CURRENT DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA) (CONTINUED.)
  29. 29.  Temporary Restraining Order (TRO) filed by State of Texas to put brakes on President Obama’s Executive Actions.  TRO sought to be overturned at appellate level in winter 2015 but TRO was upheld.  Writ of Certiorari granted by U.S. Supreme Court.  Case argued before the Supreme Court on April 18th 2016.  Potentially 4 million individuals may obtain work authorization (DA) but not a green card if TRO is dissolved by Supreme Court. TEXAS VS. U.S.
  30. 30.  Documents to prove identity – passport, birth certificate, school ID, state ID, military ID, etc.;  Documents to prove physical presence and entry – I-94, passport stamp, travel itinerary, boarding pass, tax returns, employment records, medical records, school records, etc.  Criminal records (if applicable) – police records, charging documents, plea, disposition, termination of probation, etc.;  Immigration records – if you do not have your immigration records, they can be obtained from the government through a Freedom of Information Act (FOIA) request which can take several months; and  Documents to prove relationship to and status of qualifying relative – for example, birth certificates of U.S. Citizen children, proof of permanent residence, marriage certificate, U.S. passport, U.S. naturalization certificate, etc. HOW DO I PREPARE FOR EXECUTIVE ACTION INITIATIVES?
  31. 31.  Individuals who claim that they can file an application pursuant to Obama’s (DAPA and DACA II) Executive Action now are likely attempting to defraud you. The initiatives have not yet been implemented.  Make sure you contact a qualified Attorney who will be able to guide you.  Remain informed and know when the application process starts. Subscribe to www.visaserve.com to get updates. BEWARE OF SCAMS!!
  32. 32. Questions? Please contact our office for further information: info@visaserve.com 201-670-0006 (ext. 107) http://www.visaserve.com
  33. 33. THANK YOU

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