Articles Posted in Immigration News

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The Obama administration announced a program in late 2014 that would allow many undocumented immigrants to remain in the country if they are parents of U.S. citizens or lawful permanent residents (LPRs). The Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program has never taken effect, due to a lawsuit by multiple state governors challenging the White House’s authority to establish such a program. In late June 2016, DAPA suffered a major setback in the Supreme Court, from which it might not recover. The court’s eight justices split evenly on the case, meaning that the lower court decisions blocking the program are affirmed by default. United States v. Texas, 579 U.S. ___ (2016).immigrants

The Deferred Action for Childhood Arrivals (DACA) program, first implemented by the White House in 2012, allows undocumented immigrants who entered the U.S. as children, and who meet certain other criteria, to remain in the U.S. and obtain work authorization for two years, subject to renewals by the administration. Contrary to much of the opposing rhetoric, DACA does not confer lawful immigrant status on its beneficiaries. Instead, it is an agreement by the Department of Homeland Security (DHS) to defer the enforcement of immigration laws for a specified period of time. Work authorization is certainly a benefit, but it is one that is within the Executive Branch’s authority to grant. DACA is not comparable to the status conferred by a visa or green card.

DAPA would have extended similar deferrals to undocumented parents of citizens and LPRs who meet the program criteria. About 3.6 million people, out of an estimated 11 million total undocumented immigrants living in the U.S., might have been eligible for DAPA. The majority of people believed to be DAPA-eligible have lived in the U.S. for at least 10 years.

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Human_traffickingThe New York City Mayor’s Office announced earlier this year that the New York City Commission on Human Rights (NYCCHR) will issue certifications for U and T visas, which are available to victims of human trafficking and certain other crimes. Federal immigration law allows certain state and local agencies to issue certifications, which are a required component of a petition for these types of visas. The NYCCHR is reportedly the first anti-discrimination agency in a large U.S. city to offer U and T visa certifications.

Congress created two types of visas in the Victims of Trafficking and Violence Protection Act of 2000. The T visa is available to up to 5,000 people per year who “[are] or ha[ve] been a victim of a severe form of trafficking in persons.” 8 U.S.C. §§ 1101(a)(15)(T), 1184(o). Federal law defines “severe forms of trafficking in persons” (SFTP) to include sex trafficking and various forms of forced labor. 22 U.S.C. § 7102(9). In order to qualify for a T visa, an individual must show that they have complied with any applicable law enforcement investigation, to the extent that they are able. Finally, a person must be able to demonstrate that removal would cause them “extreme hardship involving unusual and severe harm.” 8 U.S.C. § 1101(a)(15)(T)(i)(IV).

The U visa is available to up to 10,000 people per year who have “suffered substantial physical or mental abuse” due to certain criminal acts. 8 U.S.C. §§ 1101(a)(15)(U), 1184(p). The statute lists a wide range of offenses, including torture, trafficking, rape and sexual assault, involuntary servitude, and extortion and blackmail. Id. at § 1101(a)(15)(U)(iii). The crime must have occurred on U.S. territory or must otherwise be covered by U.S. law. The person must demonstrate that they have information about such criminal activity and that they have been or could be helpful to law enforcement. Spouses, children, and other dependents of a person who meet the criteria for either visa may also qualify.

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Izzedine (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia CommonsIn order for an individual who is not a citizen or lawful permanent resident of the United States to enter this country, they must possess a valid immigrant or nonimmigrant visa. The Immigration and Nationality Act (INA) allows people from certain countries, however, to enter the U.S. for a limited time, and for limited purposes, under the Visa Waiver Program (VWP). Anyone wanting to enter the U.S. under the VWP must be otherwise admissible, and the government may still deny them entry for various reasons. The Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, which was originally a separate bill but was then added to an appropriations bill, took effect in January 2016. Pub. L. 114-113, Div. O, § 201 et seq. The new law restricts people from entering the country through the VWP if they have recently visited certain other countries, purportedly based on national security concerns.

Under the VWP, nationals of specified countries are exempt from the usual requirement of a nonimmigrant visa or other document authorizing entry into the U.S., provided they are seeking admission as a tourist for no more than 90 days. 8 U.S.C. §§ 1187, 1182(a)(7)(B)(i)(II). The federal government designates specific countries for the VWP, usually based on a reciprocity agreement under which U.S. nationals can enter that country without a visa. According to the U.S. Department of State, 38 countries currently participate in the VWP. Most of these countries are in Europe. The list also includes one South American country (Chile); five Asian countries (Brunei, Japan, Singapore, South Korea, and Taiwan); and two countries in Oceania (Australia and New Zealand).

The new bill, which became law in December 2015 and took effect a month later, makes several modifications to the VWP. It amends the passport requirements to allow both machine-readable and electronic passports, effective April 1, 2016. It also requires VWP countries that issue electronic passports to certify that they have adequate means to validate these passports by October 1. The most notable features of the new law, however, deal with national security issues.

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Joergelman [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayThe Department of Homeland Security (DHS), which oversees petitions for employment-based immigrant and nonimmigrant visas through U.S. Citizenship and Immigration Services (USCIS), has issued a notice of proposed rulemaking (NPRM) intended to clarify various aspects of the employment-based visa system. 80 Fed. Reg. 81899 (Dec. 31, 2015). The agency is currently accepting public comments through February 29, 2016, after which it may issue a revised NPRM or a final rule.

Among many other changes, the new rule would affect the first three preference categories of employment-based immigrant visas (EB-1, EB-2, and EB-3) and the H-1B specialty worker nonimmigrant visa program by amending the rules implementing the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), Pub. L. 106-313, 114 Stat. 1251. Congress enacted AC21 in part to facilitate immigrant and nonimmigrant visas for various highly skilled workers. The NPRM includes rule changes that, according to DHS, would better facilitate several goals established by these statutes.

The annual number of employment-based visas that may be issued to nationals of any one country is capped at seven percent of the total number of visas. 8 U.S.C. § 1152(a)(2). As a result, petitions for employment-based visas are backlogged for certain countries. According to the State Department’s Visa Bulletin for January 2016, all EB-1 visa petitions are current, but the priority dates currently under review for EB-2 beneficiaries from mainland China are from January 2013, and July 2009 for India. All EB-3 visa petitions are backlogged, with the longest wait being India’s priority date of July 2005.

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Cuauhtemoc-Hidalgo Villa-Zapata [CC BY 2.0 (https://creativecommons.org/licenses/by/2.0/)], via FlickrThe White House’s 2012 executive action on immigration, known as Deferred Action for Childhood Arrivals (DACA), has helped hundreds of thousands of people who arrived in the U.S. as children, many of whom know no other home but here. In November 2014, President Obama announced a new executive action intended to help parents of U.S. citizens and lawful permanent residents (LPRs) who are in this country without valid immigration status. This program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), prompted a lawsuit by 26 state governments challenging it on constitutional and statutory grounds. A court granted an injunction halting the program, which a federal appellate court upheld in November 2015. A petition for certiorari by the federal government is now pending before the U.S. Supreme Court.

DACA allows people who are in the U.S. without lawful immigration status to remain here if they meet various criteria. They must have been under the age of 31 on June 15, 2012, arrived in the U.S. as a minor, and remained here continuously since 2009 or earlier. They also must be enrolled in school, have a high school diploma or equivalent, or have an honorable discharge from the U.S. Armed Forces or Coast Guard. Finally, they must not have any felony or significant misdemeanor convictions. DACA status is effective for two years, with possible renewals, and it includes work authorization. It does not confer any other specific immigration benefit or status. It is merely an agreement by the federal government to defer immigration enforcement, including deportation, while the person maintains DACA status.

At the time it was announced by the White House and the Department of Homeland Security (DHS), DAPA would allow certain parents of citizens and LPRs to remain in the country for two-year periods, again without conferring any specific immigrant status. To be eligible, an individual must have been present in the U.S. on January 1, 2010 and resided here continuously since then. As of November 20, 2014, they must have had a son or daughter who is a citizen or LPR. Finally, they cannot be categorized as an “enforcement priority” by DHS.

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By Furfur [GFDL (http://www.gnu.org/copyleft/fdl.html) or CC BY-SA 4.0 (http://creativecommons.org/licenses/by-sa/4.0)], via Wikimedia CommonsRefugees fleeing the ongoing conflict in Syria have been arriving in the U.S. in small numbers for some time, but the issue has only recently gained widespread attention. Much of this attention focuses on alleged threats to U.S. national security, with elected leaders, presidential candidates, and others calling for additional screening of refugees before they may enter U.S. territory. Federal immigration law already requires prospective refugees to undergo extensive background screening, which only begins after they receive formal “refugee” status from the United Nations High Commissioner for Refugees (UNHCR). The screening process, which is conducted by the U.S. Department of State (DOS), U.S. Citizenship and Immigration Services (USCIS), and other agencies, can take two years or more to complete.

Background of the Refugee Crisis

The crisis in Syria began in early 2011, with a series of protests against the Syrian government. This eventually led to a civil war between the government and rebel forces seeking to remove the country’s president. The group calling itself the Islamic State (IS) also got involved in the conflict. It now controls large areas of eastern Syria, while the rest of the country is divided between the government and other forces. Estimates of the total death toll exceed 250,000 people. As of December 2015, the UNHCR states that more than 4.3 million have been driven from their homes.

The total number of Syrian refugees that may be admitted to the U.S. during the current fiscal year is set at 10,000, approximately 0.2 percent of the total number of refugees from this conflict. About 2,200 have reportedly already been admitted. By comparison, the UNHCR reports that Turkey currently has over 2.2 million Syrian refugees, Lebanon more than 1 million, and Jordan more than 600,000. European nations have reportedly received more than 800,000 asylum applications from Syrian refugees.

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U.S. Department of State [Public domain], via Wikimedia CommonsThe war in Syria, and the refugee crisis it has created in Europe and elsewhere, has occupied a significant portion of the nation’s attention in recent weeks. With millions of people fleeing violence in the region, other countries are evaluating their ability to take people in and considering issues of security. Recent events, such as the terror attacks in Paris, France in early November, have led some people, including members of Congress, to question whether the U.S. should accept any refugees from Syria. Whether the two matters are related or not, the federal government has a strict definition of who may qualify for refugee status and an extensive system for screening prospective refugees. It is worth examining how this system works.

Refugee Status in the U.S.

Under federal immigration law, the President has the authority to determine the total number of refugees the government may admit during a fiscal year, after “appropriate consultation” with Congress. 8 U.S.C. § 1157(a)(2). For fiscal year 2016, which began on October 1, 2015, the President has authorized the admission of up to 85,000 refugees, with further allocations for different regions of the world. The Department of Homeland Security (DHS) must maintain a “current numerical accounting” of the number of refugee spots still available. 8 C.F.R. § 207.6.

The “Near East/South Asia” region, which includes Syria, may account for up to 34,000 spots in fiscal year 2016, and the President has specifically set aside 10,000 spots for Syrians. The U.S. House of Representatives passed a bill purporting to place additional restrictions on Syrian refugees, but no companion bill has passed in the Senate.

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tpsdave [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayThe U.S. Constitution gives the federal government exclusive authority over immigration law and policy. State and local governments have no direct authority to enforce immigration law, and the federal government generally cannot compel state or local agencies to do so. See Printz v. United States, 521 U.S. 898 (1997). In certain cases, however, federal immigration enforcement requires local government input. The New Jersey Supreme Court recently ruled on two consolidated cases from the Family Division that involved children seeking Special Immigrant Juvenile (SIJ) status. H.S.P. v. J.K., et al., Nos. 074241, 074527, A-114 Sept. Term 2013, A-117 Sept. Term 2013, slip op. (N.J., Aug. 26, 2015). The court found that New Jersey family courts lack jurisdiction to rule on actual immigration benefits, but they play a limited role in the immigration process because of their expertise in family law and child welfare.

Federal immigration law allows “special immigrant” status for unmarried children under the age of 21, for whom a return to their country of origin “would not be in [their] best interest.” 8 U.S.C. § 1101(a)(27)(J). U.S. Citizenship and Immigration Services (USCIS) makes a determination as to whether a child qualifies for SIJ status. It must find that the child has been declared a dependent of a state-level juvenile court, that this court has ruled that reunification with the child’s parents is not viable, that it would not be in the child’s best interests to be removed from the U.S., and that this situation is likely to continue until the child reaches the age of majority. 8 C.F.R. § 204.11. This requires certain specific findings from a state juvenile court. Once a child receives SIJ status, they may be able to obtain permanent residency and naturalization.

The two cases consolidated in the H.S.P. ruling involve child custody proceedings. In the first case, the child came to the U.S. from India without documentation in 2011 at the age of 16. When he was 15, he took a construction job working 75 hours per week to support his mother, who was too sick to work. When he also became sick, his mother sent him to the U.S. to live with her brother, H.S.P. In 2012, H.S.P. petitioned for legal custody of the child and requested the findings needed to obtain SIJ status. The family court declined to make those findings, holding that neither parent had “abandoned” the child.

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By WPPilot (Own work) [CC BY 4.0 (http://creativecommons.org/licenses/by/4.0)], via Wikimedia CommonsThe United States has long viewed itself as a beacon of freedom and hope for the rest of the world. The Statue of Liberty stands atop a pedestal bearing Emma Lazarus’ famous words “Give me your tired, your poor, your huddled masses yearning to breathe free.” Living up to these words is always a challenge, and those who advocate for immigrants seeking a better life in America often find themselves standing against a state that finds it easy to lock people away. A federal judge recently issued an important ruling affecting over 1,000 immigrant parents and children in the custody of the U.S. Department of Homeland Security (DHS). The judge ordered most of the children released under a settlement agreement that took effect in 1997. The government has until late October to comply.

More than 68,000 people, many of them children, were taken into DHS custody at or near the U.S.-Mexico border in 2014. Some were apprehended trying to cross the border, while others surrendered to Customs and Border Patrol (CBP) officials and requested asylum. Most of these people were fleeing crime and civil unrest in Central America. Immigration and Customs Enforcement (ICE) adopted a policy of detaining families headed by a female adult, including children, for the duration of any proceedings to determine if they qualify for immigration benefits. It is currently holding about 1,400 parents and children in three detention centers, one in Pennsylvania and two in Texas.

The current legal proceedings began as a class action filed by the National Center for Immigrants’ Rights (NCIR) and the National Center for Youth Law (NCYL), Flores v. Meese, No. 2:85-cv-04544 (C.D. Cal., Jul. 11, 1985). Litigation from 1985 to 1991 resulted in rulings that the Immigration and Naturalization Service (INS) policy “to strip search all juvenile aliens upon their admission to INS detention facilities, and following all visits with persons other than their attorneys” violated the Fourth Amendment. Flores v. Meese, 681 F.Supp. 665, 666 (C.D. Cal. 1988), rev’d 934 F.2d 991 (9th Cir. 1990), aff’d en banc 942 F.2d 1352 (1991). The Supreme Court reversed this ruling, finding the INS policy to be “a reasonable response to the difficult problems presented when the Service arrests unaccompanied alien juveniles.” Reno v. Flores, 507 U.S. 292, 315 (1993).

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0328Jersey_City_Statue_of_Liberty.JPGSeveral recent events and news stories in New Jersey could have a significant effect on immigrants in this area and their families, employers, and advocates. This includes news about increased immigration into New Jersey and its impact on the state’s economy. A recent New Jersey Supreme Court decision affirmed the state government’s decision to limit the availability of Medicaid to certain lawful immigrants. Finally, New Jersey’s governor recently joined a brief supporting a lawsuit by several states against the federal government over President Obama’s executive actions on immigration.

Immigrants Are Balancing New Jersey’s Population

According to data from the U.S. Census Bureau, the number of immigrants who have moved into New Jersey in the past few years is almost the same as the number of residents who have left. In 2013 and 2014, approximately 55,000 people moved out of New Jersey. This is reportedly a trend that has continued for decades, with some people leaving to retire and others leaving in search of jobs or lower living costs.

In that same two-year span of time, over 51,000 people moved to New Jersey from abroad, which is apparently a rate of immigration not seen in this state since the early 20th century. Most of the state’s population growth is in urban counties. Middlesex and Hudson Counties, for example, have seen net population growth, reportedly in large part due to immigration.
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