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Monthly Archives: May 2013

Removal Cases: What is Prosecutorial Discretion and Am I Eligible for this Benefit?

At my law office, I have been receiving many calls from individuals in deportation / removal proceedings asking whether a new law has been passed that helps them avoid removal from the U.S.  There has been a change, but it is not a new law per se.  Basically, the Obama administration has issued a policy change in how they will treat OPEN deportation and removal cases by setting “low priority” and “high priority” case standards. Those individuals with what are considered low priority cases are eligible for prosecutorial discretion, which means that the Immigration Court can “administratively close” or even terminate removal proceedings.

The new policy change is that John Morton, Director of ICE, has explained the benefit called Prosecutorial Discretion and has even created a system whereby an immigration lawyer can file a prosecutorial discretion request on behalf of their clients.  The request is usually made to the Chief Supervising Attorney at the Office of the Chief Counsel.

I have filed many requests for prosecutorial discretion on behalf of my clients, and I have received calls directly from the Chief Supervising Attorney about some of those pending applications.  I mainly look for the following factors when choosing whether an individual is a good candidate for prosecutorial discretion:

  • Length of time in the U.S.
  • Any family in the U.S. especially immediate relatives
  • Any health conditions for the applicant or his / her U.S. citizen or lawful permanent resident relatives
  • Completing an education in the U.S.
  • Entering the U.S. at a young age
  • Lack of a criminal history as well as other factors detailed in a Memo issued by John Morton OR
  • Any other “humanitarian” type of factors

It is important to note that you do not need all of the above points to qualify for prosecutorial discretion.  I look for one or more of the above factors, and I organize our request in a way that maximizes our chances of success by attaching legal arguments and documentation.

The reason for this policy change is that there are more removal cases than the current immigration court system can handle. In other words, Obama wants to focus on criminal aliens more than the aliens that have no criminal record and the aliens that have a possible means to obtain immigration relief.

We have noticed an increase in the cooperation of the trial attorneys for cases where the individual has no criminal history, and we are thankful for this new policy change.  For individuals who already have a Final order of removal, we have been successful in filing a prosecutorial discretion request asking the Office of Chief Counsel to Join our Motion to Reopen based on other grounds, and they can cite this policy change as a reason for the Judge or the BIA to have mercy on them and grant their request.

The above policy is in line with the thoughts reiterated by Homeland Security Secretary Janet Napolitano, who has stated that the work raids where hundreds are arrested will stop, and focus of immigration officials will turn to prosecuting and removing criminal aliens.

NEW Immigration Reform: Update on Senate Judiciary Committee’s Ruling

As most people know by now, immigration reform is on the horizon and the Senate has just completed its ruling on the many different parts combined into one bill, all regarding various issues in Immigration Reform. The Senate has ruled favorably to the biggest immigration reform we have seen the year of 2001. Specifically, if passed, this Bill would allow the more than 11 million undocumented people in the U.S. to become U.S. Citizens within a 13-year plan for them to become documented.

The Bill has also proposed an increase in the number of H-1B work visas. An H-1B visa is a work visa that is available to individuals who hold a bachelor’s degree in a specialized field and have a bona fide job offer from a U.S. company for a specialized position, such as a position in IT, engineering, accounting, science, etc. The increase in H-1B visa numbers is extremely needed, as in this year alone, there were more than 120,000 applicants and only 65,000 H-1B visas available.

We look forward to the passing of this Bill to become Law, especially since TRAC states that more than 1,500 people are arrested Daily for immigration violations. A large number of those arrested are in the state of Texas, which again shows us that we need an immigration law that will provide help to the undocumented foreign nationals in our country.

While we have all been waiting for this “new law” for years now, it seems that this Bill is not yet Law. The next step is that the Bill would be fully debated on the Senate floor during the first week of June 2013.

More Travel News for Students (F-1 visa) applying for an H-1B visa

Individuals on a student visa can often have the cap gap issue when they apply for an H-1B visa and yet their F-1 status expires before the start date of the H-1B visa. In other words, they can start working for the H-1B visa employer on October 1, 2013, and their student visa expired on May 1, 2013, for example. All New H-1B visas have the start date of October 1st for that year because that is when the fiscal year starts for H-1B visa availability.

To correct the problem of a student’s visa expiring before October 1, USCIS created what they call “Cap Gap” rules to protect students in that situation. Basically, the student can remain in the U.S. even though their visa will expire before the H-1B start date of October 1st. Without the beneficial cap gap rules, the student would otherwise have to depart the U.S. and consular process his H-1B visa through a U.S. Embassy.

Regarding whether students can travel during the cap gap period, USCIS has recently issued guidance that states that travel during this period of time is strongly discouraged. Generally, USCIS will consider the change of status petition to be abandoned if the student travels outside the U.S. before the H-1B is approved. The underlying H-1B itself may still be approved, but the change of status request will be denied. The end result is that the foreign national will then need to apply for the H-1B visa at a U.S. Consular post in their foreign country.

If the foreign national applies for the H-1B to be issued by the U.S. Consular post, he or she will only be granted entry ten (10) days prior to October 1st, which is on or about September 20th of that year. It is important to note that obtaining the H-1B visa at a U.S. Consular Post can be more complicated than filing a change of status request, as the U.S. Consular Post may want additional documentation, such as original degrees, new offer of employment letter on original letterhead from the potential employer, and other documentation before the H-1B visa will be issued.

Update on Travel for Student Visa Holders

The once “standard” stamp that students entering the U.S. would receive from Customs and Border patrol (CBP) on their I-120 / DS-2019 is now being discontinued. As of on or about August 10, 2012, CBP will no longer stamp the I-20 / DS-2019 form for any students re-entering the U.S., upon completion of their foreign travel.

If some agencies still require a stamped I-20, a student can make an appointment with their local USCIS office via an info pass system to obtain a stamp. In addition, a student encountering problems because their I-120 is not stamped can either call 1-703-603-3400 or send an email to SEVP@dhs.gov.

The above contact information was provided by the CBP website and the information was released on or about September 5, 2012 to the general public.