17 Nov FIFTH CIRCUIT SAYS NO TO DAPA – WHAT NOW?
By Attorney Nancy E. Miller, Reeves Miller Zhang & Diza
Last week we reported that Speaker of the House Paul Ryan had announced that no comprehensive immigration reform bill will be introduced or entertained in the House while President Obama is in the White House. This week, in keeping with that philosophical bent, the Fifth Circuit Court of Appeals denied the federal government’s appeal of the preliminary injunction that put a halt to Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”). While the Obama Administration quickly declared its intention to appeal to the U.S. Supreme Court, any positive decision is at least a year away. So, no comprehensive immigration reform (CIR) and no DAPA; what is there? A lot!
As societies in various countries around the world become more unstable and existing governments become less able or willing to protect their citizens, political asylum is a very real avenue for relief. Changes in country conditions allow one to file for asylum despite having been here for more than one-year. Once the application has been pending for 6 months, the applicant is eligible for an Employment Authorization Document (work permit). With work authorization, one may apply for a social security number, work legally and obtain a state-issued driver’s license.
Another option is cancellation of removal. Cancellation of removal allows qualified individuals to obtain a green card if they have lived in the U.S. for at least ten years, have good moral character and can show that their U.S. citizen, or Lawful Permanent Resident parent, spouse or child would suffer exceptional and extremely unusual hardship if the applicant were forced to leave the United States. Applicants are eligible to apply for a work permit as soon as their application is filed.
As always, anyone with a U.S. citizen or lawful permanent resident family member should explore the possibility of a family-based petition. Immediate relatives (IR) who entered the U.S. with inspection are able to obtain their green card in the United States in a process called adjustment of status. If the foreign citizen has to return home to complete their immigration process, they can seek a provisional waiver of the 10-year unlawful presence bar that will be tripped when they leave to United States to consular process.
Provisional waivers allow the applicant to submit the request from inside the U.S. and wait for the decision here. Once approved, the applicant departs for their immigrant visa interview at a U.S. Consulate. This waiver avoids lengthy separation of family members. The provisional waiver applies to aliens who entered the United States without papers, who came in on a crewman visa, who entered the United States on a fiancé visa but did not marry their petitioner and who entered on a visa but overstayed or violated the visa and are not in the immediate relative category.
Other waivers are available for those with various other grounds of inadmissibility. Those who entered the United States using false information or false documentation and can show that their USC or LPR parent or spouse would suffer extreme hardship may be able to get a waiver. Non-citizens who have convictions for various criminal offenses may be able to obtain a waiver if they can show that their USC or LPR parent, spouse or son or daughter would suffer extreme hardship. Due to some recent court decisions, many non-citizens may be eligible for criminal conviction waivers even if they were not before.
Waivers also exist for those who obtained their green cards through false information and want to clear their record so they can naturalize.
Non-citizens who are studying in the United States may be able to turn that education into both a non-immigrant work visa and a green card depending on what they are studying.
While not technically lawful status, another option is Deferred Action for Childhood Arrivals (“DACA”). Yes, DACA 1 – the original version is still available. It was not part of the lawsuit and injunction. DACA is available to a person who: (1) was under the age of 31 as of June 15, 2012; (2) entered the U.S. before the age of 16; (3) has resided in the U.S. since June 15, 2007 up to the present date; (4) is currently out of status; (5) is in school or has graduated from school in the U.S. (or is a veteran of the Coast Guard or Armed Forces); and, (7) has not been convicted of a felony or a significant misdemeanor.
More than one million individuals obtain legal permanent resident status each year. In order to find out if you could be one of them, consult with a knowledgeable and experienced immigration attorney.