Provisional Waiver Expanded

Good news,

This link explains that the 601A waiver, previously only available for spouses and children of US Citizens, is now available for spouses and children of lawful permanent residents:

https://www.uscis.gov/news/news-releases/uscis-allow-additional-applicants-provisional-waiver-process

The 601A waiver allows for a relative to have their waiver for illegal presence approved in the US, before then travelling abroad to receive their residency visa and re-enter the US legally. Before the 2013 601A program, a 601 waiver had to applied for while waiting outside of the US. The 601A, now available for immediate relatives of residents and citizens, offers security and supports family unity, as they can wait here while the waiver process is pending, and choose to stay in the US if the wavier is denied. Before, a 601 waiver denial would mean a 3 or 10 year bar from returning to the US.

It is still very important to receive legal advice about this waiver, which is only helpful in certain cases, usually when there has been only one undocumented entrance after 1997. For example, this waiver does not help if someone has been present without documentation for more than a year after April 1, 1997, then left and come back without documentation again. A good case would be a spouse who has one undocumented entry, no criminal history, crossed the border alone, and takes care of his or her spouse financially or for medical reasons. This is because “extreme hardship” to the US Citizen or Lawful Permanent Resident spouse or parent must be proven.

Unfortunately, many lawyers and document-preparers do not fully explain the risks of applying for this waiver and then leaving the country. Please feel free to set up a FREE consultation at Alford Law PLLC by calling (928) 607-1710.

Best Regards,

Elliot Alford

Alford Law PLLC

 

 

 

 

Thoughts on Spanish-Language Media

I have seen a few examples of the Spanish-language media reporting things in an inflammatory way. Recently, people asked me about children being deported through raids of schools.

It is important to understand that the federal government is a fairly predictable actor. When I heard about this news story, I immediately had an idea about what was going on. Generally speaking, ICE does not raid any place except when there is a complaint of criminal activity or an order for deportation already exists for one or more people. In the case of the children, odds are they had already been ordered deported by an Immigration Judge, and ICE was merely getting around to enforcing that order.

The government is constantly trying to save money and allocate resources. At some point, they decided that it was “worth it” to begin enforcing the deportation orders against children. Generally speaking, no one needs to worry about being raided unless they have a deportation order against them or they are involved in criminal activity, which includes working without a permit using false documents.

If you have any questions about this, Alford Law offers free consultations in downtown Flagstaff, AZ. Our number is (928) 607-1710.

Thoughts on the U-Visa

Firstly, let me share this link which provides almost all of the practical information one would need to decide if they had a U-Visa-eligible situation and how to apply:

http://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes/victims-criminal-activity-u-nonimmigrant-status/victims-criminal-activity-u-nonimmigrant-status#U Nonimmigrant Eligibility

In short, the U-Visa program allows for victims of qualifying crimes to apply for legal residency, either while in he US or from outside the US, if they are, have, or will be assisting law enforcement with an investigation of prosecution of the crime. For example, domestic violence is a qualifying crime. A victim of domestic violence can seek a signature from a law enforcement agency (either prosecutor or police, usually) to certify that they have been a victim and are helping with the prosecution. This person can then apply for the U-Visa through the mail.

Even if approved, an applicant may not receive a visa, as only 10,000 primary visas are issued each year. Even with a deferred status, though, an undocumented immigrant can remain in the US and receive work authorization and, for example, a drivers license in Arizona.

What I’d like to discuss, is how this program can cause some unintended consequences, such as spouses falsifying evidence against their spouse, in order to become eligible for this visa. This is merely one small part of this program but it is worth mentioning. For me, the solution to this would be simple, to train local police departments about this program. Ideally the suggestion to apply for this Visa would come from the police department or district attorney’s office.

An Attempt to Dispel Myths About Immigration Law

There are many commonly-held misconceptions concerning the US immigration world. Below I will list some of these and attempt to explain-away their influence. Immigration is a complex legal area, which includes prosecutory discretion, political forces, laws, and policy memorandum. Also, every case is different. IT is very important to speak with a qualified lawyer in order to have your situation evaluated and questions answered. At the same time, no one lawyer can know everything, including the writer of this article.

  1. It is possible for a lawyer or document-preparer to have a “connection” or know something “secret” that will help their clients. EXPLANATION: There are processes and strategies that lawyer or someone else could know, but mostly what occurs is that this misconception is a manipulation of what the public doesn’t know; that applications and court cases are essentially assigned randomly, and land on the desk of a disinterested government attorney or employee. A well-informed lawyer may know of the best strategy for a case, but even this lawyer cannot ensure anything about who reviews the case or what the outcome will be.
  2. All undocumented immigrants are treated the same under the law. EXPLANATION: What I mean to highlight here are the differences in opportunities for an immigrant that has overstayed his or her tourist or student visa, an immigrant who has entered illegally, entered illegally more than once, or entered illegally during a “bar” period (such as after a previous deportation). The differences between these types of undocumented immigrants, under the law, are quite significant. For example, a “visa overstay” can adjust their status upon marriage to a US citizen without leaving the US. Someone with one illegal entry (or a total of less than one year of illegal presence before the last illegal entry) can apply for a waiver of their illegal presence, and receive approval on this waiver while in the US, before being processed outside of the US for a legal entry. An undocumented immigrant with multiple illegal entries and a total of 1 year illegal presence before the last reentry faces a 10 year bar to re-entry if they seek adjustment. Lastly, someone entering after a deportation, for example, may be prosecuted for a federal felony and faces a plea agreement of 6 months in jail under typical circumstances.
  3. Marrying a US Citizen will solve any immigration problem. EXPLANATION: Not true. If one is a “visa overstay,” the path to lawful permanent residency can be simple. If there was only one illegal entry or less than one year of illegal presence before the last illegal entry, a wavier can be obtained. In other situations, an immigrant may face a 10-year bar or criminal prosecution. It may be a good idea to consider this before getting married and it is never recommended to get married solely for immigration purposes.
  4. Undocumented Immigrants have very little restrictions on their day-to-day livesEXPLANATION: This is debatable. Undocumented immigrants in many states cannot receive drivers’ licenses, unless they qualify for some kind of immigration relief; they cannot possess guns or vote; and, while some qualify for work permits, most do not.
  5. Undocumented immigrants do not pay taxes. EXPLANATION: Some do and some do not. It is always a good idea for an immigrant to apply to the IRS for a Federal Tax ID number (ITIN) if they do not have a social security number. It is wrong to assume that an undocumented immigrant is not paying taxes.

I hope that this brief article helps to dispel some common misconceptions about US immigration. one thing that is sad about our immigration situation in this country, is that much of the misinformation “out there” divides and confuses people. For more questions, please set up an appointment at my office or with another immigration lawyer.

 

Elliot Alford

Awaiting the DACA/DAPA injuction resolution

As we wait for resolution in this case (Case: 15-40238 5th Circuit), it is a good time to reflect on what power the executive branch of the United States has in the immigration realm.

Probably the least-understood aspect of immigration enforcement and administrative law generally is policy memorandum. These papers explain the current emphasis of the administration in enforcement and are often an outline for legal advocacy.

These papers are read by government lawyers judges and guide their decision-making in closing, opening, prosecuting, and deciding cases. My first advice on this website would be to look at these papers to better understand immigration law in this country.

A 2014 Department of Homeland Security Memorandum can be found here: http://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretion.pdf

Best Regards,

Elliot Alford