On June 23, 2016, the U.S. Supreme Court deadlocked in a 4 to 4 split in the long-awaited case, United States v. Texas, effectively upholding the lower court’s injunction halting the expansion of the Deferred Action for Childhood Arrivals (DACA) program and the creation of a new program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). The original DACA program remains in place.
The decision was just nine words long: “The judgment is affirmed by an equally divided court.”
The case, United States v. Texas, No. 15-674, concerned a 2014 executive action by the president to allow as many as five million unauthorized immigrants who were the parents of citizens or of lawful permanent residents to apply for a program that would spare them from deportation and provide them with work permits. The program was called Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA.
The court did not disclose how the justices had voted, but they were almost certainly split along ideological lines. Administration officials had hoped that Chief Justice John G. Roberts Jr. would join the court’s four-member liberal wing to save the program.
The case hinged in part on whether Texas had suffered the sort of direct and concrete injury that gave it standing to sue. Texas said it had standing because it would be costly for the state to give driver’s licenses to immigrants affected by the federal policy.
Chief Justice Roberts is often skeptical of expansive standing arguments. But it seemed plain when the case was argued in April that he was satisfied that Texas had standing, paving the way for a deadlock.
White House officials had repeatedly argued that presidents in both parties had used similar executive authority in applying the nation’s immigration laws. And they said Congress had granted federal law enforcement wide discretion over how those laws should be carried out.
But the court’s ruling may mean that the next president will again need to seek a congressional compromise to overhaul the nation’s immigration laws. And it left immigration activists deeply disappointed.
In their Supreme Court briefs, the states acknowledged that the president had wide authority over immigration matters, telling the justices that “the executive does have enforcement discretion to forbear from removing aliens on an individual basis.” Their quarrel, they said, was with what they called a blanket grant of “lawful presence” to millions of immigrants, entitling them to various benefits.
In response, Solicitor General Donald B. Verrilli Jr. told the justices that this “lawful presence” was merely what had always followed from the executive branch’s decision not to deport someone for a given period of time.
Speaking at the White House, President Obama described the ruling as a deep disappointment for immigrants who would not be able to emerge from the threat of deportation for at least the balance of his term.
“Today’s decision is frustrating to those who seek to grow our economy and bring a rationality to our immigration system,” he said. “It is heartbreaking for the millions of immigrants who have made their lives here.”
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Summary of Executive Action Obama Announced
Today, 11/20/2014, President Barack Obama announced broad executive action to offer temporary relief from deportation to millions of undocumented immigrants.
“If you’ve been in America for more than five years; if you have children who are American citizens or legal residents; if you register, pass a criminal background check, and you’re willing to pay your fair share of taxes – you’ll be able to apply to stay in this country temporarily, without fear of deportation,”
The most controversial aspect of the president’s executive order allows as many as five million undocumented immigrants to stay in the U.S., including the undocumented parents of children born here. Those parents will be able to request deportation relief and work permits for three years at a time, provided that they register, pass background checks, pay fees, and prove that their legal resident or citizen child was born before the date of the executive order.
The plan also protects more so-called “DREAMers” — young immigrants brought to the United States illegally as children. Previously, individuals were eligible for deferred action if they were born after 1981 and entered the country before 2007. That date is expected to change to January 1, 2010, with no age limit.
Obama noted that the move would not grant undocumented immigrants citizenship or the right to remain in the country permanently. And he said that he will still push for a legislative solution
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While relatives of U.S. citizens often find a path to legal status, relatives of green card holders can also apply for a green card. If you are related to a permanent resident or green card holder, you might be eligible to petition for a green card.
A green card holder may apply for his/her spouse and children (unmarried, any age) to come to the U.S. legally. As a relative of a permanent resident, you will be placed in a category known as “family second preference”. Because the number of visas given out to family preference applicants annually is limited, you will be placed on a wait list. When a visa number is available, it will be assigned to you.
If you are in the U.S., the process of applying for a visa will be the same as that of relatives to U.S. citizens. If you are already in the U.S., your relative must file Form I-130. When it is approved, you must wait until the priority date in the family preference category becomes current. The priority date is the date when the I-130 is properly sent. When it becomes current, you can file the I-485 which will allow you to adjust your status. Eventually, the adjustment process will result in your status as a permanent resident.
For the most part, the application process must be completed by the green card holder. First, he/she must file Form I-130 and provide USCIS with proof of his/her status as a legal permanent resident. Documents and evidence of the relationship between the green card holder and immigrant must also be included. Examples of evidence include birth and marriage certificates. If you and your family member do not share the last name, you must show proof of the legal name change. More specific details can be found on the forms that need to be filed.
If you are outside the U.S., you must undergo the process of consular processing. This type of processing occurs when USCIS works with the Department of State to issue a visa on an I-130 that has been approved. When the Department of State issues you the visa, you can travel abroad and will become a permanent resident when you enter the U.S.
Many families are under the impression that an approved I-130 means that an applicant has been granted a benefit or change in status. This is not true. If USCIS accepts and approves the visa petition, it means that you are now in line for a visa number. If you belong to a first preference category, you will be issued a visa right away. If not, there will be a longer wait.
If you have any questions about preference categories, the process of becoming a U.S. citizen, or how to obtain a visa, please contact Immigration Attorney Phillip Kim.
One of the most popular ways of becoming a U.S. citizen is through an immediate family member. When it comes to applying for a visa, immediate relatives are given top priority.
There are an unlimited number of visas available for family members. So, if you are an immediate relative of a U.S. citizen, you will not need to be waitlisted until a visa number becomes available. Usually, a visa should be available right away.
You are designated as an immediate relative if you are the spouse, child, or parent of a U.S. citizen. As a child, you must be under the age of 21 and unmarried. If you are applying as the parent, the U.S. citizen must be at least 21 years of age.
You may apply for a green card either while you are in the U.S. or while you are abroad.
If you are currently in the U.S., you can complete the application process in one step: you file an I-485 and your U.S. citizen relative petitions with Form I-130. This must be done at the same time. Filing forms can be complicated, and one mistake could result in a rejection of your request. It is recommended that you seek the assistance of an attorney who is specialized in immigration to help you file these forms.
Sometimes, the petitioner (the U.S. citizen you are related to) files the I-130 early. In this case, you can still file an I-485 as long as the petitioner’s request has not been rejected. When you receive a Notice of Action that tells you that the I-130 has been approved, you can submit from I-485. You will have to include a copy of the receipt or approval notice.
If you are not currently in the U.S., but are an immediate relative of a U.S. citizen, you have a different process to go through. First, the U.S. citizen must file form I-130 and it must be approved by USCIS. When USCIS approves of the petition, you must wait until they notify you that you are eligible to apply for a visa. When a visa is available, it will be issued to you. Once you have your visa, you can travel with it and you will become a U.S. permanent resident when you enter the U.S. If you fail to apply for a visa within one year after the Department of State has told you that you are eligible, your petition could be terminated. This entire process is known as consular processing.
Some conditions make it difficult for you to apply for a visa or green card through an immediate relative. In immigration, good timing makes all the difference. If you are applying as a child of a U.S. citizen, you must apply before you reach the age of 21. Once you pass that age, you will be moved into a different visa preference category that will make it more difficult to apply through a U.S. citizen parent. A visa may not be available to you immediately, and this will cause a delay in adjusting your status or processing your request for a green card. So, it’s important to begin the visa application process as early as possible.
On the same note, sometimes it is possible for a person to pass the age of 21 and still legally be called a “child”. Under the Child Status Protection Act, it is possible that USCIS will determine your age based on the date your parent files the I-130 for you. For example, if a parent files the form while the child is 20 years old, it may be possible to request that the child’s age be determined by that date.
Another factor that will make the immigration process lengthier and sometimes impossible is marriage. If you are under the age of 21, applying for a green card through a U.S. citizen parent, and married, then you no longer fall in the category of “immediate relative”. This means that your status will change from top priority for a visa to third priority, and a visa will not be available for you right away. It is important to keep USCIS updated on any change in your marital status after the I-130 has been filed and before you receive a visa or permanent status.
Finally, some situations we have come across specifically include:
A spouse has entered the U.S. with a different type of visa (sometimes a student visa or visitor’s visa)
The spouse of family member’s visa has expired and they are seeking a change in status or to apply for a green card through an immediate relative
Green card renewal – you can renew your green card whether it is expired or not. Past criminal convictions will affect your chances for obtaining a renewal.
If you have any questions about applying for a visa or green card through an immediate relative, please contact Immigration Attorney Phillip Kim.