Tag Archives: executive action

USCIS Clarifies its RECALL of DACA 3 Year Work Document’s (EAD’s).

THIS IS AN IMPORTANT UPDATE ABOUT THE USCIS RECALL OF CERTAIN THREE YEAR EAD’S ISSUED TO DACA RECIPIENTS:

On July 1, 2015, USCIS Headquarters personnel in Washington, D.C. hosted a public engagement conference call to clarify their efforts to retrieve certain Employment Authorization Documents (EAD’s) issued to Deferred Action recipients under the 2012 Deferred Action for Childhood Arrival (DACA) program.

Recently social media and other media outlets have been buzzing about the return of certain EAD’s issued with a three year validity generating fear that some DACA recipients may be in jeopardy  of losing their DACA status all together or that they may receive a visit from DHS agents to their homes. USCIS therefore attempted to ease much of this fear and clarify who is and who is not required to return a three year EAD.

The problem arose because immediately after the President’s November 20, 2014 Executive Action announcement (which included an expansion of the 2012 DACA program from two year to three year approvals), USCIS began issuing EAD’s to new and renewal DACA applicants with a three year validity period. On February 16, 2015, Judge Hanen issued an injunction as part of the Texas et al. v. U.S.A. litigation in the Southern District of Texas halting the expansion of the 2012 DACA program to three years as well as the implementation of Deferred Action for Parental Accountability (DAPA).  According to Judge Hanen’s Order, USCIS should have stopped issuing three year EAD’s immediately on February 16, 2015.  However, USCIS took some time to implement the terms of the Order and to switch back to issuing two year EAD’s.  As a result, approximately 2100 EAD’s were issued AFTER February 16, 2015 valid for three years.

In addition, USCIS also reported that approximately 500 EAD’s valid for three years were actually approved and first issued before February 16, 2015 but were returned to USCIS by the US Postal Service as undeliverable and re-mailed by USCIS AFTER February 16, 2015.

What you need to know about the RECALL is:

  • ONLY THE 2100 THREE YEAR EAD’S ISSUED AFTER FEBRUARY 16, 2015 AND THE 500 EAD’S RE-MAILED AFTER FEBRUARY 16, 2015 ARE SUBJECT TO THE RECALL. 
                • USCIS was very clear that the approximately 108,000 three year EAD’s issued prior to February 16, 2015 ARE NOT SUBJECT TO THE RECALL.
                • The recall is being carried out by Notice Letters being mailed to all affected DACA recipients.
                      • All three year EAD’s described above (about 2600 EAD’s nationwide) MUST be surrendered to USCIS no later than July 30, 2015.  Failure to surrender and affected three year EAD’s will expose the recipient to termination of their DACA status.  If a recipient has their DACA status terminated because of a failure to surrender an affected three year EAD subject to the recall, their failure will be considered as a negative consideration in any future application for DACA.
                        • If a DACA recipient has a three year EAD and is not sure if their EAD is subject to the recall, the recipient should call USCIS at: 800-375-5283 and select option #8.   At the time of this posting, the option provides recorded information about this recall and the opportunity to speak with USCIS customer service agents who USCIS states will be able to confirm if a specific recipient’s EAD is subject to the recall.
                • Recipients of three year EAD’s subject to the recall should follow the instructions in the Notice Letter to mail the affected EAD back to USCIS by overnight mail to the address provided by the July 30, 2015 deadline.  If a recipient returns an affected EAD by mail, it is strongly recommended that you use a receipted and tracked service such as UPS or Federal Express or DHL which will provide you confirmation and signature proof of delivery.
        • USCIS also advises that recipients who are unable to meet that deadline by mail can also walk into any USCIS Field Office nationwide to surrender their affected three year EAD.  An Infopass appointment is NOT REQUIRED and the recipient can walk in to surrender the EAD.  The St. Louis USCIS Field Office is located in the Young Federal Building in downtown St. Louis at 1222 Spruce Street, Room 2.205 Saint Louis, MO 63103-2815 The Kansas City USCIS Field Office is located at 10320 NW Prairie View Rd. Kansas City, MO 64153. If a recipient returns an affected EAD in person at a USCIS Field Office, the USCIS personnel should provide a receipt for the surrendered EAD. DO NOT LEAVE the USCIS Field Office without a receipt.
        • USCIS has confirmed that if a DACA recipient had a three year EAD affected by this recall but is now unable to surrender the EAD because it has been lost or stolen or destroyed, the recipient must provide a sworn statement to that effect and the submission of the statement will constitute surrender of the affected EAD.
    • As of the date of this posting, USCIS states that ALL recipients of three year EAD’s which are subject to the recall have been mailed replacement EAD’s with a two year validity period. 
  • USCIS expects that a DACA recipient who is required to return a three year EAD should receive their two year replacement EAD very shortly after if not before the deadline to surrender their three year EAD. There should be very little if any time that the DACA recipient will be without a valid EAD.
  • USCIS has confirmed that in the case of an affected EAD that is not timely surrendered, USCIS personnel may be sent to the residence of the DACA recipient in an effort to retrieve the affected three year EAD.  USCIS has explicitly confirmed that these visits will not be by ICE, CBP or other law enforcement agents. USCIS also reports that if a home visit is going to be attempted, USCIS will make an effort to contact the recipient by phone the day before the intended visit.  If a USCIS employee makes a visit, they should be in plain clothes and provide identification and a badge proving they are employed by USCIS.  They are not authorized to question any person in the residence or search any part of the residence and the sole purpose of the visit will be to retrieve the affected three year EAD.

The USCIS senior directorate level personnel who conducted this conference call were very explicit that the only purpose of these efforts was to bring the 2012 DACA program into full and complete compliance with Judge Hanen’s February 16, 2015 Order and that USCIS’ overriding concern is to assure that all current DACA recipients are able to remain in full compliance with the program and maintain their valid work authorization.

If you have any further questions about this recall, please contact us at:

US Legal Solutions, LLC

Kenneth K. Schmitt

Gustavo Arango

8714 Gravois Road, St. Louis, Missouri 63123

314-729-1049

You can also visit the USCIS website for more information by clicking here.

UPDATE: Reports of DAPA’S Demise Greatly Exaggerated!

En Banc Courtroom of the Fifth Circuit Federal Court of AppealAfter Friday’s oral argument before the 5th Circuit Court of Appeals,  many may be declaring the end of DAPA.  Nothing could be more wrong!

Remember that Friday’s argument was only to decide if DAPA and expanded DACA can proceed while the appeal process from Judge Hanen’s injunction takes place.  This appeal is still strongly favored to end in a victory for the program. This appeal is expedited and should conclude in a matter of months.

If the 5th Circuit rules against the administration’s request for the emergency stay, the administration has the option of simply working through the appeal process or seeking the emergency stay from the U.S. Supreme Court.

So once the 5th Circuit rules on the motion argument from Friday,  stay tuned for more to come.  The fight for common sense immigration enforcement and basic fairness for immigrant families continues!

 

Executive Action Update!

President Obama announces Executive Action.

President Obama announces Executive Action.

It has now been nearly two months since the President announced his Executive Action on Immigration November 20, 2014.  In preparation to implement the President’s announcement, USCIS has moved forward in preparing the necessary forms for expanded DACA this month and to implement Deferred Action for Parental Accountability in May.  USCIS has had at least two public engagement conference calls in preparation to implement these programs and is expected to issue more detailed guidance for these two programs in the next several weeks.  USCIS has also announced on its website that it will begin accepting applications under the expanded DACA guidelines February 18, 2015. (click here to read more from USCIS).

As expected, there has been push back from the Republicans on two different fronts.  In Congress, the House leadership crafted and voted out of the House a DHS funding bill that contains language which, if it became law, would impede the Administration from implementing the President’s November 20, 2014 directives.  As expected, however, this bill has stalled in the Senate where the Republicans lack the 60 votes necessary to end debate and call a vote on this bill.  As a result, this effort to stall the President’s initiatives has failed to date and will continue to fail as long as the opponents of this effort continue to filibuster the bill and prevent a vote.

Unfortunately, because the Republican majority has insisted on holding DHS funding hostage in their effort to stop the President’s initiates, DHS now risks running out of operational funding later sometime in February 2015. We are now on the brink of a possible DHS shut down.  This threatens our country’s national security at every level.  The agencies that fall under the Department of Homeland Security which are now threatened with a possible loss of operational funding include:

  • TSA agents providing security at our nation’s airports,
  • The Secrete Service protecting our President and other elected leaders,
  • The Federal Emergency Management Agency which provides local assistance in the event of tornadoes, earthquakes, hurricanes, flooding and other natural and man made disasters,
  • The Transportation Safety Administration that keep our highways, trains and commercial flying safe,
  • Even Customs and Boarder Protection that secures our boarders.

Without question, the Republican strategy of holding DHS funding hostage over their frustration with the President’s Executive Actions threatens to leave this nation more vulnerable to attack and will not succeed at stopping the President’s initiatives.

The President’s initiatives have also been challenged in the Federal District Court for the Southern District of Texas.  More than 20 Republican Governors have joined as Plaintiffs in this lawsuit claiming to be interested parties and claiming that their states have been “harmed” by the President’s actions.  They have asked the Texas Federal District Judge to issue an Injunction to stop implementation of the President’s Executive Actions until their claims can be fully adjudicated.

Many different interested parties have weighed in on this lawsuit by filing Amicus Curiae (” Friend of the Court”) arguments on both sides.  Supporting the President and his Executive Action include arguments submitted by New York Mayor Bill de Blasio with help from our own St. Louis City Mayor’s office.

At the end of the day, the Plaintiffs’ legal efforts to stop the President’s Executive Actions are most likely to fail on the issue of standing.  Standing is the legal requirement that the Plaintiffs must show that in some way they are personally injured by the President’s actions.  This will be very difficult for the Plaintiffs to show.  Admittedly, the Federal District Judge hearing this case is very conservative and the Plaintiffs chose to file their suit in this court because of its conservative leaning.  However, the law is not on the Plaintiffs’ side as explained in further detail by David Leopold, former National President and General Counsel of the American Immigration Lawyers Association.

You can read David Leopold’s well written blog/analysis by clicking here: 2.4.2015 Leopold blog on Texas lawsuit.

We at US Legal Solutions expect that the President’s Executive Actions will go into effect and the Republican efforts to interfere with the President’s sensible prioritization of limited enforcement resources will fail.  We fully expect that, if the President’s initiative is able to proceed, millions of immigrants in our communities will benefit and so will our Nation!

Deferred Action is here. What does it mean for you?

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President Obama announces Executive Action.

President Obama announces Executive Action.

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Deferred Action is here. What does it mean for you?

November 24, 2014

Below will follow a brief overview of the more important highlights of the Presidents November 20, 2014 Executive Order.  It is posted for your general information.  However, it is critical that you seek experienced legal counsel before you present yourself to the Federal government with any application under the President’s Executive Order.  The consequences of an error in judgment can be catastrophic!

US Legal Solutions Has the experience of successfully representing hundreds of deferred action applicants and is ready to offer the experience of its lawyers to make sure your case is given the best possible chance of success.  In that effort, US Legal Solutions will be offering free informational sessions at its offices as follows:

CLICK HERE TO SEE THE CURRENT UPDATED SCHEDULE OF “CHARLA INFORMATIVAS” OFFERED BY US LEGAL SOLUTIONS.

 So what did President Obama do?

This past Thursday, President Obama made good on his resolve to act within his constitutional powers to make our country’s immigration system work as well as possible in face of Congressional failure.  In effect, the President has moved to make the best of the mess he has been handed by Congress.

The practical effect of President Obama’s Executive Order has been that Jeh Johnson, Secretary of Homeland Security, has now issued a number of policy memoranda to the immigration related agencies within his jurisdiction: US Citizenship and Immigration Service (USCIS), Immigration and Customs Enforcement (ICE) and Customs and Boarder Protection (CBP).  Three of these memoranda are of particular significance.

Expanded Deferred Action.

First, as we reported would likely be the case, Director Johnson has directed Leon Rodriguez, Director of USCIS, to expand the existing Deferred Action for Childhood Arrivals (DACA) program in two important respects.

  • To expand the existing DACA program by removing the age restrictions, by adjusting the date by which a DACA applicant must have last entered the United States to qualify for DACA and by extending the period of deferred action granted from two year increments to three year increments; and
  • To further expand the exercise of deferred action to permit a second basis for application —   parents of US citizen and lawful permanent resident (holding a green card) children who have been in the United States since January 1, 2010.

As a result of this first November 20, 2014 policy memorandum, individuals will now qualify for DACA if the meet the following criteria:

  • Have last entered the United States and have continuously resided in the US since not later than January 1, 2010;
  • Are physically present in the United States when filing;
  • Were younger than the age of 16 years at the time they last entered; and
  • Had no lawful status as of November 20, 2014;
  • Have a clean criminal record which is generally defined as no felony convictions, no more than two misdemeanor convictions (other than minor traffic offenses) and no significant misdemeanors (as defined in a separately issued policy memorandum on prioritization of removal cases); and
  • Meet the preexisting educational requirement of being in high school, having obtained a high school diploma, being in GED classes, having obtained a GED or have been honorably discharged from the military.
  • There is no longer any requirement that an applicant be at least 15 years old or younger than 31 years old to apply.

The DHS memorandum further directs that USCIS should begin accepting applications under these new DACA requirements not later than 90 days from November 20, 2014 or by February 18, 2015.  Additionally, those granted DACA are to be given deferred action and work authorization for three years, including any applications approved after November 24, 2014 under the prior requirements.

Additionally, individuals will also qualify for deferred action if they meet a second set of criteria:

  • As of November 20, 2014, they have a son or daughter who is a US Citizen or Lawful Permanent Resident (green card holder);
  • They have continuously resided in the United States since January 1, 2010;
  • They were physically present in the United States on November 20, 2014 and at the time of filing their application;
  • They have no lawful status as of November 20, 2014;
  • Have a clean criminal record which is generally defined as no felony convictions, no more than two misdemeanor convictions (other than minor traffic offenses) and no significant misdemeanors (as defined in a separately issued policy memorandum on prioritization of removal cases) and they don’t fit into any other enforcement/removal priority groups as defined in a separately issued policy memorandum;and
  • They present no other factors that would make a grant of deferred action inappropriate.

USCIS is directed to begin accepting applications under this new category of deferred action requirements not later than 180 days from November 20, 2014 or by May 19, 2015.  Additionally, those granted deferred action under this criteria will also be given deferred action and work authorization for three year increments.

In general, both the expansion of DACA and the new category of “Deferred Action for Parents” represents an opportunity of an estimated 5 million additional hard working, contributing members of our community to come out of the shadows.  However, a couple of cautionary points should be observed.

First, this is far short of immigration reform and does not grant “Status” to any recipient of deferred action.  Those who qualify for deferred action are merely identified as non-priority individuals so that the administration can focus removal resources “priority” individuals (mostly threats to national security, gang members, individual with serious criminal offense convictions or multiple or significant misdemeanor offense convictions and very recently arrived individuals who are undocumented or caught at the boarder).

Deferred action is not a pathway to citizenship or legalization.  Deferred action is not amnesty!

Secondly, a grant of deferred action is absolutely discretionary and even if a person meets the criteria set out above, they can be denied. All deferred action applications are evaluated on a case by case basis. There is no appeal from a denial of an application for deferred action.

Consequently is it absolutely vital that if you believe you qualify, you should seek competent and experienced legal counsel before filing your application.  Find a lawyer who has significant experience with the DACA program who can bring their experienced eye (gained from successfully handling hundreds, not a handful, of successful DACA applications) to expertly evaluate and prepare your case.

Expanded Provisional Stateside Unlawful Presence Waivers.

The second policy memorandum issued on November 20, 2014 that will impact many of our clients’ lives is the expansion of the provisional stateside waiver for the unlawful presence bar.

Those who are subject to an unlawful presence bar trigger the bar by leaving the country to attend a consular appointment in an effort to “get in line”. Generally, more than fifty percent of these waivers are granted but, in the process, applicants are required to remain outside the country, separated from their families, for many months or years while their waiver is adjudicated and ultimately approved.

In 2013, USCIS amended its regulations to allow for an applicant to apply for an unlawful presence waiver and obtain a provisional approval of the waiver before they leave the country so that they aren’t separated from their families while the waiver is being adjudicated. However, this provisional stateside waiver is currently limited to beneficiaries of petitions filed by US citizen spouses.

The November 20, 2014 Stateside Provisional Waiver Memorandum directed USCIS to begin the process of amending this 2013 regulation to provide for provision stateside waivers in all family based visa applications filed where a visa number is available.

Prioritization of Removal Cases

Secretary Johnson also issued a November 20, 2014 policy memorandum directed to the immigration agencies to realign their prioritization of removal cases in a more formal, three tiered manner.  In general, the agencies are to consider individuals for removal according to three priority categories:

  • Priority I — Those who represent a threat to national security, boarder security and public safety (aggravated felons under the Immigration and Nationality Act, terrorists, street gang members etc).
  • Priority II — Those who have been convicted of more than two misdemeanors (excluding minor traffic offenses), significant misdemeanors and recent immigration violators.
  • Priority III — Those who have committed other immigration violations.

While all of this falls far short of what this nation deserves and hardly constitutes a sane immigration system, it is what we are left with given the Congress’ failure to act in any sensible fashion. Those who dislike the idea of executive action should pressure their elected members of Congress to do their job and enact comprehensive immigration reform!

 

##########END OF UPDATE##########

Immigration Reform Update: Napolitano Pushes for Broader Executive Action!

statue_of_liberty_with_extract_of_poem_by_emma_lazarus_fixed

The Washington Post.  October 27, 2014.  1201 a.m.

The Washington Post this weekend reported that former Department of Homeland Security Secretary Janet Napolitano stated in an interview:

“If Congress refuses to act and perform its duties, then I think it’s appropriate for the executive to step in and use his authorities based on law . . . to take action in the immigration arena,’’ Napolitano, a lawyer and former U.S. attorney in Arizona, said in an exclusive interview with The Washington Post.

She made her remarks to the Washington Post ahead of what the Post has reported will be a significant speech by her scheduled for Monday, October 27, 2014 to be delivered in Georgia.  The Post has further reported that she is expected to detail the heated debate that took place inside the Administration in 2012 when the Administration and Napolitano announced and implemented the Deferred Action for Childhood Arrivals (DACA) program.  DACA  is now considered to be largely successful, benefiting over 580,000 young immigrants to date.  It is expected that Napolitano will detail how she urged much broader action in 2012.  It is expected that she will likely push for broader action now.

You can read the complete Washington Post Article by clicking here.

Hopefully, Secretary Nepolitano’s interview this weekend and her speech on Monday is part of a broader effort to lay the groundwork for a concerted push for expanded executive action once the November elections are over!  Stay tuned.