678-903-6400

DHS November 20, 2014 Executive Action Memoranda

Executive Action on Immigration
DHS Memos November 2014

1.DHS Revised Enforcement/Removal Priority Memo November 20, 2014

http://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretion.pdf

2. DHS End of Secure Communities Memo Novemer 20, 2014

The Secure Communities Program is discontinued and replaced by the Priority Enforcement program(PEP). Instead of requests for detention, there should now generally be requests for notification in most cases.

See full text of memo

http://www.dhs.gov/sites/default/files/publications/14_1120_memo_secure_communities.pdf

3. DHS Memo Expanding DACA eligibilty and Deferred Action to include certain parents of USCs and LPRs November 20, 2014

Full text of memo

http://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action.pdf

4. DHS Memo Expanding Provisional Waiver I-601A program November 20, 2014

Spouses and children of LPRs are now included as well as adult children of USCs and LPRs. Read the full text here; http://www.dhs.gov/sites/default/files/publications/14_1120_memo_i601a_waiver.pdf

5. DHS Memos on Advace Parole, Parole in Place and Parole Policy for Entrepreneurs November 20, 2014

http://www.dhs.gov/sites/default/files/publications/14_1120_memo_arrabally.pdf

http://www.dhs.gov/sites/default/files/publications/14_1120_memo_parole_in_place.pdf

http://www.dhs.gov/sites/default/files/publications/14_1120_memo_business_actions.pdf

6. DHS High Skilled Business/Worker Memo November 20, 2014

http://www.dhs.gov/sites/default/files/publications/14_1120_memo_business_actions.pdf

Whether Parent of a U.S. Citizen is eligible for the I-601A Provisional ULP Waiver?

The section of the law that governs this waiver can be found in the INA Section 212(a)(9)(B)(v) and the regulatory provisions can be found in 8 CFR Section 212.7(e).

It is important to keep in mind that the statute did not change regarding this waiver. What the regulations did was to add a mechanism whereby certain eligible individuals can file this waiver here in the U.S., have it adjudicated prior to going to their overseas consulate to apply for an immigrant visa.

To be eligible, one must first and foremost be an “immediate relative” beneficiary of an approved petition. This means that only spouses of U.S.citizens, children of U.S. citizens under 21, and parents of U.S. citizens whose petitioning child is at least 21 years of age are covered. Therefore relatives of Lawful Permanent Residents cannot use this process.

The statute requires that extreme hardship must be shown to two categories of relatives: Spouse or Parent. Thus the parent of a U.S. Citizen who may have an approved immediate relative petition would not be eligible for this waiver if their only relative is their son/daughter who petitioned for them, or other U.S. citizen children for that matter.

However such parent of a U.S. Citizen in the above scenario may be eligible for the I-601A if they have a spouse or parent themselves who is a U.S. citizen even if that spouse or parent did not file the approved immediate relative petition. Of course extreme hardship to that relative must still be established. Additionally all other eligibility criteria should also be satisfied.

The above information is general in nature and does not constitute legal advice for a particular situation.

Notice to Appear (NTA): Basis to Challenge

What is a Notice to Appear? A Notice to Appear (usually referred to as an NTA) is the document that the government normally uses to begin removal proceedings against a non U.S. citizen. It is a charging document.

What should you do if you receive an NTA? It is best to retain competent immigration counsel if you have been served with an NTA because of the complexities of immigration law.

Why should I not gloss over my NTA?

Every NTA should be properly examined for possible ways to challenge it. In a majority of cases, there may not be any way to attack an NTA as an initial matter. But in some cases, a valid initial challenge to an NTA may result in proceedings being terminated in your favor. Below are some ways to attack the NTA:

  • The legal authority under which the proceeding is based: Look to make sure that this information is contained in the NTA sufficient to advise you of the legal authority upon which the proceeding is based. If this information is absent, you may challenge the NTA on that basis.
  • The charges and the legal provisions alleged to be violated: The NTA must specify this information so that each alleged charge matches the provision of the law alleged to be violated. If this information is absent, confusing or contradictory, you may challenge the NTA on that basis.
  • Conduct alleged to be in violation of Law: Does the NTA specify the conduct that allegedly violates the law? If this is not specified you may also challenge the NTA on that ground.
  • NTA must charge the non citizen under the right legal posture: This means the person must be properly charged as deportable or inadmissible. Each has different legal implications relating to the burden of proof and relief that may be available. If you have been charged using the wrong legal posture, you may challenge the NTA on that basis.
  • NTA not issued by authorized officer: If proceedings are initiated with an NTA issued by an officer not duly authorized to issue an NTA, you may also challenge an NTA on that ground.

There are other grounds and reasons upon which one may mount a valid challenge upon the NTA but each case is different and one should make a decision after considering the totality of the facts of a particular case. In some situations, there may be other strategic reasons not to mount a challenge. In conclusion, one should always examine the NTA thoroughly to determine if there is a basis to challenge, and if so whether such a challenge should be made.

Eligibility for the Provisional (Unlawful Presence) I-601A Waiver

The final rule to support the 601A unlawful presence waiver was published in the Federal Register on January 3, 2013. A summary of key eligibility factors from the said rule are as follows;

1. Must be an immediate relative of a United States Citizen (USC) to qualify.

2. A Lawful Permanent Resident (LPR) cannot be a qualifying relative for purposes of the provisional waiver.

3. Only a USC spouse or parent can be a qualifying relative for purposes of the extreme hardship determination.

4. If you are outside the U.S., you are not eligible.

5. If you are in removal proceedings, such proceedings must be administratively closed and not re calendered in order to be eligible to file the I-601A. (For a recent Board of Immigration Appeals decision on Admin. Closure see Matter of Avetisyan 25 I&N Dec. 688 (BIA 2012)). You should seek and obtain a termination of such proceedings prior to your departure following approval of a 601A application.

6. If your interview at the consulate was scheduled prior to 1/3/2013, you will not be eligible to use the 601A waiver.

7. If you have any other additional ground of inadmissibility beside that of unlawful presence, you would also not be eligible to use this process.

8. TPS recipients would be generally able to use this process if otherwise eligible.

9. No concurrent filing of 601A with I-130 or I-360. Must have an approved petition to become eligible.

10. Filing fee for 601A is $585.

This process becomes effective March 4, 2013. For additional information please see http://www.uscis.gov/portal/site/uscis

K-1 Fiance(e) Visa and Customary/Tribal Engagement

The K-1 visa is meant to be used by a United States Citizen (USC) to bring his/her fiance(e) into the U.S. conditioned on the fact that they will marry within 90 days of entry.

There are some basic requirements to be eligible to use this visa;
1. The petitioner must be a USC. A lawful permanent resident or green card holder cannot petition for a fiance(e).
2. The parties must have previously met in person within 2 years of the filing of the petition, and intend in good faith to marry within 90 days of entry.
3. The intended marriage that would take place must be legal in the sense that both parties are of the age to marry and if any had been previously married, there has been a valid divorce.
There are also other considerations that are not the focus of this writing such as the fact that the applicant must be generally admissible, that the USC’s criminal history may be an issue, and matters related to repeated filings.
The K-1 visa process is attractive to many USCs because it is thought by some to be a quicker way of bringing in one’s would be spouse into the U.S. as against getting married in the foreign country and going the route of an I-130 filing, and consular processing of an immigrant visa. (These days it is the writer’s view that speed should not be a consideration in whether or not to go this route because of the fact that processing times for an I-130 is comparable to that for an I-129F, plus factoring in the fee for adjustment of status in the U.S.).
The K-1 visa would also be the visa of choice where the parties prefer to have their marriage and wedding done here in the U.S. especially if they have more friends and family here.
Pitfalls of Customary/Tribal Engagement
As stated earlier, for a successful K-1, the petitioner and applicant need to show among other things that they have met in person within 2 years and intend to marry within 90 days of entry.
A customary or tribal engagement may be very fluid in the sense that one may not be certain when the parties cross the line of engagement into a customary marriage. Sometimes no two experts or courts would agree as to exactly when a customary marriage has or has not occurred. Where  for example, bride price is the corner stone of a customary marriage, sometimes some local courts or experts have found that there is a valid customary marriage though the bride price has not been paid. Some experts or local courts are prepared to recognize a valid customary marriage where the bride went home with the groom after the initial formal customary engagement. Therefore an elaborate customary engagement may actually be interpreted or misinterpreted as a valid customary marriage thereby making the parties ineligible for a K-1 visa.
It is my opinion that parties who may face this type of situation should avoid an elaborate customary engagement as a consular officer may find that a marriage has already taken place.
The law only requires that the parties have met physically within 2 years, and that they have a good faith intention to marry within 90 days of entry. Emails for example may be a way to prove an intention to marry without the risk of a consular officer thinking that a marriage has actually occurred. In this age of social media, such an intention can also be shown using such media.
Where the parties decide to have an elaborate customary/tribal engagement notwithstanding, it may be a good idea to be proactive and obtain affidavits from the tribal leader(s) or custodian affirming that what had transpired was an engagement only, and stating the reasons for such conclusion under the particular custom.
In no way am I advocating that anyone should abandon their culture out of fear of what a consular officer may decide. The fact of the matter remains that the lines are sometimes not very clear as to what has happened. Ultimately the parties will decide what and how they wish to proceed.