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.
For the year of 2013, USCIS has approved the maximum of 10,000 U visa petitions. U visas are for victims of crime who has suffered abuse emotionally and mentally. Victims agree to help law enforcements prosecute such crimes. The program for U visas started in 2008 and has helped more than 76,000 victims and their families. USCIS will be accepting U visa applications again on October 1, 2013.
There are multiple ways to get a green card as a relative of a U.S. citizen. As the spouse, unmarried child, or parent of an adult citizen (over 21 years old) you qualify as an immediate relative. Green cards for immediate relatives are unlimited, so there is no waiting for a visa as an immediate family member. Receiving a green card will allow you to live and work in the U.S. as a permanent resident.
If you are already in the United States, to receive a green card, you will file need to file for permanent residence. Second, you will petition for your status as an immediate relative of a citizen. For immediate relatives of U.S., these two steps can be done at the same time or you can submit your petition and then file for residence.
If you are not yet living in the U.S., you must submit your petition for residence as a family member of a citizen first. After your petition is submitted, there is a waiting period for a visa to allow you to travel to the U.S. This process is the same for immediate and non-immediate family members of citizens.
Remember to keep in mind that your status as a child will most likely be counted from the date of your petition, and that to keep the status of child you must be 21 years old or younger. Also, children under 21 must be unmarried through the green card process in order to count as immediate relatives. If you are the married child of a U.S. citizen you do not count as an immediate relative, but can still petition for residence as a family member of a U.S. citizen.
The fiancé(e) visa, also known as the K-1 nonimmigrant visa) allows your fiancé(e) to enter the U.S. for 90 days to get married. Once your marriage takes place, your spouse may apply for permanent residence and stay in the U.S. while USCIS processes the application.
To be eligible, you (the petitioner) must be a U.S. citizen, you must marry your fiancé(e) within 90 days of entry, any previous marriages must have been legally terminated, and you must have met your spouse at least once within 2 years of filing your petition (with exceptions).
If your fiancé(e) has a child under 21 and unmarried, a K-2 nonimmigrant visa may also be available. After admission of your fiancé(e), he or she may immediately apply for permission to work by filing an application for employment.
1. What happens after my case goes to NVC?
NVC will request additional documentation from the applicant and petitioner if a visa number will be available for your petition. If a visa number is not available, NVC will hold your petition until a visa becomes available.
2. I have a family emergency and need an immigrant visa immediately. Is there a way to speed up the process?
If a visa number is available and your situation pertains to serious medical emergency, your case might qualify to be expedited. You must have proper documentation from the physician describing the life or death medical situation in order to be considered.
3. I went in for an interview for an immigrant visa at the U.S. Embassy but was refused. Is there a way to reverse this?
NVC cannot reverse a petition decision. You should contact the U.S. consular office where your case was processed.
4. I recently moved. What do I need to do?
You should update your information with NVC immediately to prevent any delays in your visa petition.
The I-601 waiver can be used to challenge charges on ineligibility when trying to get a visa or change status to become a permanent resident. If you are ineligible to change your status or get a visa for permanent residence, you may can use the I-601 form to attempt to overturn your ineligibility. After submitting the form, the USCIS will review your form and notify you of any change in status.
If you are present in the U.S., file your I-601 waiver with the U.S. Citizenship and Immigration Services department ( USCIS). If you are not present in the U.S., you should file your I-601 form at the closest U.S. embassy or consulate. You may also file your I-601 with the USCIS “lockbox” in Chicago, but take care to follow the correct process for mailing in your waiver. If you do not follow the lockbox procedure, your waiver could be lost or significantly delayed.
The length of the application process for filing the I-601 will differ greatly by location of filing. If there is not a U.S. Citizenship and Immigration Services office in the country where you are applying, your application will be sent to the next closest office which can delay how quickly your I-601 waiver is reviewed. How many applicants apply at your application location may also change the speed of the filing process and may cause delays.
The filing process will require substantial writing in English. You should expect to explain the grounds of your ineligibility in detail on the waiver form. You should also be able to provide documentation of your ineligibility, such as copies of your medical records or diagnoses, criminal records, financial records, or other relevant documentation to the grounds you are contesting with your I-601 waiver.
When reviewing your I-601 waiver, the USCIS may consider any number of factors. Your immigration history in the U.S. and the length of time you have lived in the U.S. (documented or otherwise). They may also consider any criminal record, employment history in the U.S., or demonstration of good moral character. The USCIS may also consider any family ties to the U.S. already and whether or not denying your application will strongly negatively affect those relationships. You can include documentation of your kinship ties, including marriage or birth certificates and should demonstrate how your presence in the U.S. is necessary to these ties. The I-601 waiver can also be used to demonstrate that leaving the U.S. or being unable to immigrate will cause severe economic hardship that could otherwise be avoided. You should aim to demonstrate any of the above factors in your I-601 waiver and you can and should include documentation for these grounds.
There is a fee for filing the I-601 waiver, currently at $585 U.S. dollars. If you are entering the U.S. on some forms of refugee or asylum and are required to file the I-601, you may also be eligible for a fee waiver. You should contact the U.S. CIS to see if your current status is eligible for the fee waiver.
The TN NAFTA visa is meant for professional workers from Mexico and Canada. This visa allows Mexican citizens to come to the U.S. and work for at a professional job that meets NAFTA requirements. To learn more about those requirements, see our past articles.
You must have a TN NAFTA visa before entering the U.S.
The process of applying involves proving that your employment is on par with NAFTA requirements. Required documents are: Form DS-160 (Nonimmigrant Visa Application, $140), a valid passport, a 2×2 photo of you, and a letter or statement from your boss or future employer in the U.S. This letter should outline the following information: facts about your profession (stating that the profession requires someone with professional ability), evidence that you will be hired (how the employer will pay your salary, full time or part time), and a detailed statement, letter, or contract that explains the business activities that your employer will provide.
This letter or contract will explain why you are entering the U.S. and your new job with the U.S. employer. The employer should also describe how long you plan to stay in the U.S. for, as well as your educational background and qualifications that show your status as a professional worker. Your employer must also explain that he or she complies with state law and DHS regulations that concern the business or place of employment. The employer should explain how he or she is going to pay your salary.
If you choose to bring your family with you, they will need to submit paperwork as well. Your spouse and any children under the age of 21 can join you in the United States. First and foremost, they must prove their relationship to you. They must also provide proof of their citizenship in Mexico and copies of your entry documents (in other words, the family must show that the TN NAFTA visa holder is obeying legal requirements). Also, the family does not have to have Mexican citizenship. They can be citizens of another country.
Your family will be allowed to study but not work. If you are already in the United States and want your family to join you, they will need copies of your I-94 papers (Arrival-Departure Record) to show that you are still maintaining your status.
Basically, all of this means that you must establish that the job you will be employed for is a legitimate one that belongs to a NAFTA list category. You have to show that your intended stay is only temporary (show that you have a stable home in Mexico). Your employer has to demonstrate that you, the applicant, meet all the minimum degree requirements for the job you are going to take. Degrees, diplomas, educational certificates, and professional licenses or membership to professional organizations are all examples of your educational status.
You should translate documents that are written in Spanish. And include validation of your documents by a credible outside source – there are some companies that offer professional validation of documents. You may need to contact one of these agencies.
Also show your work experience or business records if you were self-employed. All of these documents will help demonstrate that you are coming to the U.S. to work in a special field. One note: you do NOT need to prove that you are licensed to work in a certain field.
Every state has different laws relating to this issue. If you want to learn more, contact Immigration Attorney Phillip Kim. He has expertise in immigration law and can help you determine if the NAFTA Visa is the right type of visa for you.
If you are a professional worker, you have a lot of options when it comes to applying for a visa. EB-1, H-1B, and E-2 are just a few of the many visas available to you. The Phillip Kim Law Center seeks to educate you and let you know what options are available to you so you can take the right steps towards getting a visa and possibly citizenship.
This article will cover one type of professional worker status visa, the TN NAFTA Professionals visa. This visa is based on the NAFTA (North American Free Trade Alliance). It is a non-immigrant status visa that allows Canadian citizens to work in a business activity in the United States.
To be eligible for this type of visa, your profession must meet the requirements. First, your profession must be one that is on the NAFTA List: professions like accountants, engineers, lawyers, pharmacists, scientists, and teachers.
Secondly, the job you are going to do must require a NAFTA professional. Lastly, your position must be for a U.S. employer, for a position that is pre-arranged. You cannot pursue self-employment in the U.S.
There are other requirements you must meet: you must be a Canadian citizen (permanent residents are not eligible) and you must meet the qualifications of the profession.
The NAFTA agreement applies to Canadians and Mexicans. While Mexican citizens need a visa to come to the U.S. through TN NAFTA status, Canadians do not need to obtain a visa before coming to the U.S. If you still want a visa for documentation purposes, you can apply for one when you enter the U.S. Just apply at the port of entry.
But, if you are living in another country besides Canada and you want to bring your non-Canadian spouse or children with you, you will need to get a visa so that your family can eventually get TD-Visas (visas for the family of NAFTA professionals).
In order to apply, go to your consular office. If you are between the ages of 14-79, you will need to attend an interview. Make an interview appointment but be aware that there is a wait-time. In Canada the wait time usually lasts up to 2 days. They will conduct electronic fingerprinting at the interview as well so be prepared to submit that for an identity check.
Once you are in the U.S., you can stay with non-immigrant TN NAFTA status for up to 3 years. The cost of applying is $140. You can also apply for your family (spouse and children under the age of 21) to obtain TD visas. Having a TD visa will be beneficial to your family because they will be allowed to stay with you while you are in the U.S.
You will be required to submit extensive documentation with your application. Each case is different and unique. If you would like more information about your personal case, contact specialized Immigration Attorney Phillip Kim.
The E-2 visa for foreign investors is designed to promote investment in U.S. companies for people not looking to immigrate permanently. If your employer is in the U.S. on an E-2 “treaty investors” visa, you may also be eligible to travel on an E-2 visa for work in a new business enterprise or U.S. investment.
Your employer must already be a foreign investor with E-2 status living on a treaty investors visa in order for you, the employee, to also qualify for the E-2 visa. If you are looking to work in the U.S. but do not qualify for the E-2 visa, you may be eligible for other visas. Further, the E-2 visa is a non-immigrant, temporary visa. If you are looking to become a permanent resident of the U.S., look into information on the green card process.
To qualify for the E-2 visa, you need to be the same nationality as the employer who holds E-2 status. Your position in the enterprise should either hold some seniority or your skills should be considered irreplaceable to the firm. Things to keep in mind about this requirement can be whether or not you will be performing a unique or individual skill in the job, whether or not these skills are found elsewhere in the U.S., and whether or not your skills will garner a compensating wage.
If you think you are eligible for the E-2 visa, you can file for status as the employee of an investor. If you are not currently in the U.S., you should contact the state department for your visa and petition for E-2 status when you enter the country.
The E-2 visa lasts for an initial period of 2 years. If your skills are still necessary and your investor employer extends his or her stay in the country to grow the investment, your E-2 employee visa can also be extended. However, you should remember that skills considered necessary at one time may not be considered so at a later time. This means that there is no guarantee that you will be able to extend your E-2 visa performing the same job duties that got you that visa originally. The E-2 visa does allow for travel abroad and you are generally granted your 2 year stay upon returning to the country.
For more information and help about getting a visa, contact Immigration Attorney Phillip Kim.
The Investors visa can be a very broad category. If you are interested in investing a large sum of capital in a U.S. company you, your employees, and your family may be eligible for a visa of up to 2 years. When 2 years is up, your visa is eligible to be extended if your stay remains temporary. That means that the E-2 visa is considered non-immigrant and you should intend to leave the country in the future. If you are interested in fully immigrating to invest in a U.S. company and becoming a permanent resident, look into the green card process for investors.
To be eligible for an E-2 visa, you should see a list of countries from which investors have been approved for temporary stay in the U.S. These countries are called treaty countries, and the E-2 visa is also referred to as the treaty investors visa. If you are a national from an eligible country and are currently in the U.S., you can file for E-2 status as an investor. From outside the U.S., the U.S. state department can issue you a visa and you can declare investor status when you enter the U.S.
To be an eligible investor, you should own at least half of the commercial enterprise and plan to oversee, direct, and advance its further growth. The enterprise must present a substantial investment, meaning that it can financially sustain the investor and his or her family and aims to generate new jobs, goods, or services.
However, the investment should still meet traditional business standards of being at risk for loss and aimed at making profit. The investment should meet legal requirements and the investment capital must be gotten lawfully. That means that money flowing into the enterprise cannot have involved criminal activity on any level.
Spouses and children of investors can also travel on the E-2 visa, and they are not subject to the same nationality requirements as the investor. The children must be unmarried and under the age of 21.
If you are the family member of an investor already in the U.S. and would like to change your status to the E-2 visa, you can file to change your status. Immediate family members of investors are generally given an E-2 visa for the same amount of time as the investor and can usually be similarly renewed.
For more information and help with getting a visa, contact immigration attorney Phillip Kim.