Call for volunteers – help translate for low-income tax filings

We are proud to announce a partnership between the Immigration Assistance Program and Reno’s Community Services Agency to help provide Spanish-language translation support for CSA’s provision of low-income tax filing assistance through the federal Volunteer Income Tax Assistance (VITA) program.

Volunteers must be U.S. citizens or lawful permanent residents and bilingual in English and Spanish. Volunteer shifts will be for 2-3 hours on Tuesday and Thursday evenings and on Saturday mornings. Each shift needs 1-2 volunteers, and volunteers can work together to split the time commitment among them.

Interested individuals in Reno-Sparks are asked to contact us by commenting below or through Facebook or Twitter at our profile CCNNimmigration.

 

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Alien smuggling could be barrier to new family unity waivers

We previously shared some initial thoughts on the “Gang of 8” U.S. Senators who unveiled a framework for comprehensive immigration reform (CIR). Most observers know that in the days since both President Obama and the House of Representatives have identified their own starting points for such a discussion. The national debate is taking shape with hearings and many major issues remain up in the air. It will be an exciting and important few months to come.

In the meantime, immigrant families and the advocates who try to shepherd them safely through a complex and often changing web of immigration laws are digesting what new policies such as Deferred Action for Childhood Arrivals (DACA) and the new Provisional Unlawful Presence Waiver (PUPW) have in store. These policies will matter in the interim and if CIR again comes up short this time around these policies will remain some of the most important tools in practitioners’ toolboxes.

One major disappointment of the Final Rule on PUPW was the administration’s decision to not permit individuals with inadmissibilty other than that arising from § 212(a)(9)(B) to utilize the new I-601A process. Our program and clients submitted two hundred comments among several thousand and advocated for consideration of waivers for other grounds of inadmissibility. This seemed fair because most waivers share the “extreme hardship” standard for overcoming § 212(a)(9)(B) or even use a lower standard of proof such as “family unity”; therefore a case that passes muster for waiving unlawful presence inadmissibility should also suffice for other problems.

It would have been understandable for USCIS to draw a line between unlawful presence (a relatively innocent inadmissibilty) and inadmissibility based on fraud or criminal convictions. But instead USCIS chose to draw a single, bold line with unlawful presence on one side and everything else on the other. Therein lies the problem.

Drawing from anecdotal experience, USCIS has recently ratcheted up its screening for an often-overlooked ground of inadmissibility: § 212(a)(6)(E) for alien smuggling. While the words “alien smuggling” smack of human traffickers and hard-nosed coyotes who help unauthorized immigrants to cross the border, the definition also includes families that travel across the border together. Here’s the statutory language:

Any alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is inadmissible.

This is a very broad definition of “alien smuggling” and the only exception is for certain individuals who were in the United States in 1988, prior to the passage of the Immigration Act of 1990. There is a waiver available, however. Here’s the relevant language:
 

[The government] may, in [its] discretion for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, waive application of [the alien smuggling rule] in the case of [certain Permanent Residents] and in the case of an alien seeking admission or adjustment of status as an immediate relative or immigrant under section 203(a) (other than paragraph (4) thereof), if the alien has encouraged, induced, assisted, abetted, or aided only an individual who at the time of the offense was the alien’s spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.

That’s quite a mouthful. Here’s what it means: if you are seeking an immediate relative visa you can also seek a waiver (with a low hardship standard) if you are inadmissible for alien smuggling and the person who you helped enter was your spouse, parent, or son/daughter.

In practice, these waivers are something of a formality. In fact, this rule seemed to have been forgotten about until recently, and we have seen a spate of cases being flagged for potential alien smuggling. Even where the case is so flagged, the hardship standard is so easy in most cases that it just adds a short delay to the overall process.

But here’s the snag — § 212(a)(6)(E) inadmissibility is not § 212(a)(9)(B) inadmissibility, and therefore individuals who entered the U.S. without permission and brought with them spouses or minor children are not eligible for the new opportunities offered by the I-601A process. In our experience this is frequently the case, and it is disappointing to explain to a client that this new opportunity — which USCIS acknowledges is intended to help families remain together throughout the process — is just out of reach because of an old, historically overlooked rule.

We will keep an eye on this issue to see if it presents in practice the headaches that it promises in theory.

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Filed under Advocacy, Enforcement, Family-Based Immigration, Undocumented Immigrants

Senators’ opening bid for Comprehensive Immigration Reform has echoes of past proposals

A day before President Barack Obama is slated to visit the Silver State and deliver a speech outlining principles for Comprehensive Immigration Reform (CIR), a group of U.S. Senators has unveiled its own set of general proposals. Although visible progress is a welcome sign to immigration advocates who thought they may have to wait until spring for any action, the details of what is being proposed are strongly reminiscent of past proposals that have not borne fruit.

Echoing all CIR proposals since 9/11, this one attempts to forge bipartisan compromise by tying any broad-based path to citizenship with “increased enforcement and border security.” Advocates of CIR have often asked in recent years what would satisfy this criterion if 400,000 deportations per year and a decade of constant year-over-year budget increases for enforcement are deemed to have not been enough.

Cheerleaders for CIR can find encouragement in the fact that the Senate is leading the way — although the political makeup of the Senate is arguably less conducive to passing a broad package of reforms, it also has higher procedural hurdles for advancing legislation. The most recent effort to pass immigration law reform — approval of the DREAM Act to offer relief to young undocumented immigrants — died in the Senate after failing to overcome a filibuster. Similarly advocates should be optimistic that broad principles are being introduced and a path to citizenship for all of the estimated 11-12 million aspiring citizens is on the table — some advocates had worried that only a piecemeal set of small reforms could pass both houses of Congress and that some groups might be left out. Finally, it is obvious that the political environment is different in 2013 than it was throughout President Obama’s first term: on this issue perhaps less so because he is a re-elected president who is seen as deserving to implement his mandate and more because the Republican Party desperately wants to make a viable bid for Latino votes in 2014 and beyond.

But the news is not all cheery when seen through a political handicappers eyes. First, the community of immigration advocates, aspiring citizens, and their families should know now that power players in Washington posturing toward a goal does not guarantee that said goal will be realized. The proposals being ballyhooed today are very similar to those put forth in prior Congresses dating back half a decade or more and changes in the electorate, where they have occurred, are arguably more stepwise than sweeping.

Some of the familiar ideas in this proposal include:

  • More border security including the use of drones to patrol the borders and a promise to provide Customs and Border Protection with the tools and resources it needs to “apprehend every unauthorized entrant;”
  • A path to Permanent Residence for aspiring citizens who pay fines and back taxes and pass a background check;
  • Expansion of high-skill work visas such as the tiny number in the H-1B category;
  • Provisions for an accelerated “alien entrepreneur” residency for job creators;
  • An improved system for employment authorization verification; and
  • Some form of guest worker program

Among the new approaches in this proposal are:

  • An explicit “enforcement-first” approach that would rely on approval from a new commission of governors rather than the usual rhetoric of “we have to secure the borders before we discuss legalization”; and
  • A new system for proactively tracking exits from the country to prevent overstays of temporary visas (one study finds that 38 to 50 percent of all unauthorized immigrants overstayed their visas).

Finally, there are a few potential poison pills in what is being proposed:

  • The enforcement-first approach is engineered to provide political cover for both sides if negotiations break down or bills fail to win approval — one political party can point to concerns over border security and the other can score political points by highlighting its rival’s intransigence;
  • We again see the notion that those currently out of status must “go to the back of the line,” but it is unclear precisely what is meant by this. For some visa categories (see the recent Visa Bulletin here) the “back of the line” is a far-flung place 16, 19, or even 23 years in the past.
  • Universal employment authorization — many observers say that to truly achieve robust, universal employment verification the U.S. would have to implement a national identification card that every authorized worker would bear. Such a proposal faces staunch opposition from civil liberties advocates from both ends of the political spectrum.
  • Ours is still a bicameral legislature, and any proposal must appeal not only to a handful of Republican Senators but also to enough Republicans in the House to make it to a vote and survive. The attitude that the Republican Party must moderate its policies if it is to survive is not one that is universally held.

All in all, we have this week signs of progress but nothing upon which to make firm plans or even friendly bets. President Obama will weigh in when he visits Las Vegas tomorrow and we will continue to keep an eye on these developments.

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Filed under Advocacy, Enforcement, Immigrant Rights, Legalization Process, National News, Uncategorized, Undocumented Immigrants

BREAKING : group of Senators to reveal blueprint for immigration reform

At this hour the New York Times is reporting that a group of senators is set to unveil a set of principles for this year’s bid for Comprehensive Immigration Reform. We will provide some analysis of these broad principles shortly and update our commentary as details emerge later today.

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A possible loophole in I-601A rules

We will have to see how this develops as USCIS clarifies and revises its guidelines, but it appears there may be a loophole — albeit an expensive one — for families hoping to use the new I-601A process despite having already reached a crucial point in the consular interview process.

A big disappointment with the Final Rule is that it maintains the mostly senseless and seemingly unjust stipulation that anyone whose immigrant visa appointment was already processed for scheduling as of January 3, 2013 is shut out of the I-601A process. This seems to make things easier for DOS and USCIS at the cost of penalizing the most proactive applicants.

The prelimiary publication in the Federal Register reads:

An alien who is ineligible to apply for a provisional unlawful presence waiver because of a previously scheduled immigrant visa interview may still qualify for a provisional unlawful presence waiver if he or she has a new DOS immigrant visa case because 1) DOS terminated the immigrant visa registration associated with the previously scheduled interview, and they have a new immediate relative petition; or 2) the alien has a new immediate relative petition filed on his or her behalf by a different petitioner.

What this seems to mean is that an individual who had already reached the consular interview stage may choose to let his or her case and petition lapse and then re-file a new I-130, pay new fees to the National Visa Center, and then proceed with an I-601A process without leaving the U.S.

We are thinking in particular of one family that we are working with. “Alfred” is a national of Mexico who entered the United States without inspection. He has never left the country, he has a completely clean criminal record, and he is married to a U.S. citizen and they have three U.S. citizen children. When Alfred came to us, he had an approved I-130 petition and he wanted help completing the rest of his consular interview process. We finished those steps in late 2011 and then in January 2012 came the first mention of the new I-601A process. As we awaited a final rule on this process, Alfred’s consular interview came and went — he did not attend it and hoped that the I-601A process would offer him a way to gain lawful status without an unpredictable separation from his family.

Alfred cannot afford to be apart from his family for unknown months and years. He is the sole provider for his family, and his wife is not able to work. Alfred is instrumental to the wellbeing of these four U.S. citizens, and even though he has a strong case it is by no means guaranteed that he would be able to return to the U.S. quickly enough to prevent the family from suffering gravely without him. The I-601A process would allow Alfred to request a provisional waiver, gain pre-approval, and then depart the U.S. for a few days or weeks before returning to the U.S. as a Permanent Resident.

In Alfred’s case, the rules have been written in a way that leave him on the sidelines. He might choose to continue with the traditional I-601 waiver and accept the difficulty this will cause his family. Or, if this “loophole” is valid, he might choose to cancel his pending case and re-file a new one. Re-filing will come at a cost of nearly $1,000 in new filing fees, but it might be worthwhile for him.

We will await further clarification on this point from CLINIC, ILRC, and USCIS among other entities. Does the rule mean to distinguish a case in which “DOS terminated registration” from one in which the applicant chooses to have the case lapse? The language cited above is also clearly intended to permit individuals to pursue an I-601A despite having an old case pending through a previous petitioner.

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Filed under Family-Based Immigration, Undocumented Immigrants

Tip of the hat to DOS for I-601A heads-up messages

A quick word of thanks to the U.S. Department of State and the National Visa Center for its efforts to proactively identify individuals who may qualify for the new I-601A provisional waiver process.

Click here to see an example of what this letter might look like.

Anyone who has a pending case with the National Visa Center should contact them to ensure that all contact information (including physical mail and email) are current and accurate. Keep an eye out for a letter like the one above, and be sure to consult with a reputable immigration attorney or a BIA-accredited representative for more information.

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