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President Obama’s Immigration Executive Order

Now individuals who have a US citizen or permanent resident child can get employment authorization for three years, even if they had been ordered deported, as long as they don’t have felonies and have entered the US by January 1, 2010.

This executive order also includes DREAM Act kids who entered the country before there were 16 and have entered the United States by January 1, 2010.

Also there was a restriction to apply for persons who were older than 31 years old. Now that has been erased and it does not matter their age as long as they entered the country before January 1, 2010 and they were under 16 years old.

Waiver, form I-601a

Now any person if they have a US citizen child over 21, or US citizen spouse, or permanent resident spouse or child can apply for the I-601a waiver. There used to be a standard requirement for proving extreme hardship, but now standard requirement is much easier than extreme hardship, that means more people will win the I-601a waiver.

The U.S. CIS time and cost savings would be achieved by not physically opening the application in the mail room and distributing the application to the proper department, manually processing the fee payments, scanning the paper case back into its own databases/systems, and searching for the hard file of the case. Instead this time can be spent on reviewing the cases which are already electronically filed, paid for, and already in PDF format.

Furthermore, U.S. CIS would save on mailing cost, paper cost, and ink and toner cost, and would be more environmentally friendly.

It is also important to note that transition to the above-described e-process should not be difficult. We are aware that the U.S. CIS is trying to transition to e-filings; however, we believe the process is too slow and perhaps its design is unnecessarily complicated.

Simple is better. There is no need, for example, for the U.S. CIS Web site to (at this stage) have e-filed forms which have to be completed on the U.S. CIS Web site. The U.S. CIS can simply allow petitioners and attorneys to register with their Web site (simple online form registration) and submit the U.S. CIS forms, credit card payment form, and supporting documents as PDF files. This process can be implemented immediately.

 

By utilizing readily-available and inexpensive technological solutions, the entire immigrant and non-immigrant process can be made cost and time efficient and provide a better “user experience” both for the petitioner and the U.S. CIS processing officers.

For example, let us take a look at the above-described process of filing an I-129 L-1A application. Instead of relying on paper filings and the old methods of duplicate hard copies and regular mail correspondence, the process can easily be converted to an online secure experience. The above-described filing/processing steps would be amended in the following manner:

  1. Petitioner and/or attorney register for an online account with the U.S. CIS (one-time registration);
  2. Petitioner files online Form I-129, pays processing fee online by credit card, and attaches supporting documents via PDF files which can either be directly uploaded to the U.S. CIS Web site or via third-party file upload service that would provide such service to the U.S. CIS (such as www.yousendit.com or www.dropbox.com which are used throughout the private sector);
  3. The U.S. CIS approves the file and emails the petitioner or the attorney Form I-797 in PDF format with included “bar code” which can be scanned by the U.S. CIS/ICE Officers at the port of entry or U.S. Embassy;
  4. If the U.S. CIS needs to request additional evidence before the case is approved, it would email the petitioner/attorney and the petitioner or his or her attorney could respond again via the online account and upload the PDF files. The attorney or petitioner can confirm receipt of the email; if there is no confirmation of the U.S. CIS email, the application can revert back to a mailing notice;
  5. If there is a breakdown in communication by either party, the case can always revert back to present mailing process. Therefore, the new procedure can be implemented immediately since the old mailing process will stay in effect as a default procedure.

Present Process

Business petitions and applications such as I-129 NIV Petitions (various classifications), I-140 Petitions, I-526 and I-829 Petitions are still processed by using paper copies. This system fails to utilize readily available and widely used technological solutions. The U.S. CIS system which receives, processes, and requests additional information is inefficient, technologically primitive, and burdensome for both the immigrant and the United States Government

Most business-based nonimmigrant and immigrant visa petitions must be paper filed. In some instances the U.S. CIS allows electronic filing of the U.S. CIS forms but it does not provide for the option of submitting the supporting evidence electronically as well.

Once the petitioner or his or her attorney paper-files a business-based petition, the U.S. CIS will respond to the petitioner or his or her attorney via hard-copy mail (unless the case is filed via the U.S. CIS Premium Processing Service which requires additional $1,225 payment to the U.S. CIS). If additional evidence is requested by the U.S. CIS, the petitioner and/or the attorney is required to, in most if not all circumstances, file a response in hard-copy format to the U.S. CIS.

To better illustrate this process, let us take an example of a petitioner who decides to file Form I-129, Petition to Obtain L-1A Nonimmigrant Visa Status. Typically, the petitioner must take the following steps:

  1. Hard-copy file Form I-129 with supplements and supporting evidence;
  2. The U.S. CIS receives the hard-copy filing and mails a receipt;
  3. The U.S. CIS approves the case and/or mails a request for evidence;
  4. The petitioner then submits his or her response to the request for evidence (typically via hard-copy filing unless the case was filed via the U.S. CIS Premium Processing Service and is less than 20 pages long);
  5. The U.S. CIS denies or approves the case. If the case is approved, the petitioner still must wait for mailed approval notice (Form I-797) in order for the beneficiary to use it at the U.S. Consulate or a port of entry.

As shown above, the current system requires numerous hard-copy mailings/filings and back-and-forth paper correspondence between the U.S. CIS and the petitioner and/or his or her attorney.

 

If President Obama issues an Executive Immigration Order in December 2014, the USCIS will request a certain set of documents to prove the alien is eligible for the new Immigration Executive Order. We believe the documents required will be similar to what is required for the Dream Act. In the Dream Act the applicants needed to prove that they have been in the United States before 2009 or earlier. They needed to provide supporting documentation such as proof of entry, tax returns, school transcripts, health records of children or birth certificates of alien’s children who were born in the United States. The US Government does not require all these documents at the moment; these are just examples of what was requested for people to be able to file for employment authorization card through the Dream Act. We believe that similar documentation will be requested if the President Obama issues a new Immigration Executive Order. In addition, the Dream Act filing fee was $465, and we believe the new Immigration Executive Order may require a similar amount in order to receive unemployment authorization card.

First, President Obama has to issue the executive order which we believe will occur in December 2014. Once this occurs, it is supposed to affect at least 5 million illegal aliens. The majority believe is that these 5 million illegal aliens will obtain at the minimum an employment authorization card, which will allow them to work but not travel outside of United States. There are two reasons why we believe that people who have the final deportation orders issued against them will be included in the new executive order. First, we believe that the President can only use the deferred action language which only allows employment authorization to illegal aliens here in United States. Deferred Action has been used for people who have deportation orders for the last 25 years, so we believe that the President will use deferred action in the same manner as it has been used in the past which would include people with final deportation orders. Second, we believe that the President’s immigration executive order will be based on the same model as the Dream Act Executive Order which was issued in 2011. In that executive order children who entered the United States before the age of 16 and have the deportation orders were still able to obtain employment authorization. Therefore, aliens with the final deportation orders will most likely be included in the new immigration executive order and be issued an employment authorization card.

Many in the Hispanic community are skeptical that Barack Obama will take any executive action after the November 2014 elections. The Hispanic community believes they have been misled and lied to for the last six years. However based on the political map after the November 2014 elections, president Obama will have a little or nothing to lose if he issues an immigration executive order. His current approval rating is relatively low; he is hoping to enrage the Republicans by ignoring the Congress and issuing an order that may be constitutionally challenged. In fact, the Democratic Party recently was able to raise funds for the upcoming elections by claiming the Republicans are trying to impeach the president. Especially if the Republicans controlled the Senate, president Obama can position himself as the president trying to help the disadvantaged against the “evil” Republicans. He used this strategy effectively in both the 2008 and 2012 presidential campaigns. Therefore, we believe there is over 95% chance that an immigration executive order will be issued and it will provide employment authorization to approximately 5 million illegal aliens in the United States.

Proposed Process

As soon as the detained alien notifies private counsel that he has been served with a notice to appear, private counsel can prepare a bond motion, motion for a change of venue, and supporting documents, and send the email to both the assistant district counsel and the immigration court. The assistant district counsel can email his or her bond recommendation to the immigration court and the private counsel, and the immigration judge can issue a decision by email to both parties.

If the private counsel believes the bond is too high, he or she can request a telephonic hearing under the old system. However, private counsel will rarely request a telephonic hearing because they have already provided their best argument for bond in writing, and an immigration judge would be unlikely to change the ruling without new evidence. Therefore, bond would be paid immediately by the alien to avoid any further detention.

Benefits of the New Process:

Bond hearings would be reduced by at least 70%, and the immigration judge and the assistant district council could save an additional three to five hours or work per week. Detainees who would eventually receive bond can be released days to weeks earlier, saving detention costs. Clerks for both the U.S. CIS and the immigration court would save time creating paper files and transporting the hard files to the correct immigration judges and assistant district director, and the immigration court would reduce the use of court-paid interpreters. Also, more bed space would be available and the government could reduce its costs of food, shelter, medical attention, and security for detained individuals.

Executive order of prosecutorial discretion

Recently 136 law professors submitted a paper to the White House explaining that the President has legal authority to implement prosecutorial discretion without congressional approval.
The letter goes on to explain that presidents from both parties have used prosecutorial discretion to prevent specific, and often large, groups of immigrants from being deported.
The reason this letter is so important is that President Obama is likely to use it as his explanation when he issues and executive order on immigration. Since he does not have congressional approval, he will he need to rely on some legal argument for taking such a widespread action. The letter goes into more detail stating:
“Our letter confirms that the administration has specific legal authority to use prosecutorial discretion as a tool for protecting an individual or group from deportation,” said Wadhia. “This legal authority served as foundation for prosecutorial discretion policy across several administrations. Historically, this policy has been premised on the twin policy goals of managing limited resources and shielding people with compelling situations from removal.”
If the President relies on this letter, it is likely that deportations will stop except for aliens who have felonies. And there is a high likelihood that 5 million illegal aliens may receive work authorization based on the prosecutorial discretion powers used previously for Dream Act Kids. Dream Act Kids were able to receive employment authorization cards, renewable every two years. Once again this is not a guarantee that the President will issue an executive order, but it appears more likely than ever that something will occur after November 2014.

Reducing the Costs if Alien Detention through the Bond Hearing Process
Reducing Bond Hearings by 70%
Present Process
Thousands of bond hearings are held at detention centers around the United States. Once the government serves a notice to appear to the alien and the court, the immigration judge will then schedule the bond hearing date. Private Attorneys can find out the bond hearing date through relatives of the alien or by calling the 800 number of the immigration court system. Once private counsel finds out the date, they usually have between five to ten days to file the bond motion or a motion for a continuance because the private counsel is often unavailable with such short notice or is located in another jurisdiction.
Once the bond motion date is set, the assistant district counsel, the immigration judge, and the private counsel conduct a telephonic bond hearing. These bond hearings usually last five to ten minutes and the immigration judge sets the bond or denies bond. This coordination of assistant district counsel, immigration judge, and private counsel adds days or even weeks to the bond hearing process. During this time, the cost is substantial with respect to food, shelter, medical attention, and security for detained individuals.
If an alien is eventually released on bond, the government cost savings of an earlier bond decision and release is substantial with respect to food, shelter, medical attention, and security for detained individuals.

New York Office

65 Broadway Suite 1603
New York, New York 10006

Andrew P. Johnson - Immigration Lawyer