Natty Shafer Law

Utah lawyer for criminal and immigration cases

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Advance Parole under DACA

The Deferred Action for Childhood Arrivals (DACA) program has vastly improved the lives of thousands of immigrants. The primary benefit is that it allows people to have an employment authorization card and work legally. However, it only grants a few other immigration benefits. Travelling can be an issue, at least for anyone who would like to leave the country. It is fine to travel within the United States, but leaving the country requires a plan. DACA holders must apply for “Advance Parole” from USCIS, and then wait for permission before they leave the country. Any DACA holder who travels outside the United States without Advance Parole, or who has already done so since August 15, 2010, automatically loses their deferred action.

USCIS does not grant Advance Parole to all DACA holders. A mere desire to travel will likely be rejected. The applicant must qualify one of the three specific reasons USCIS grants Advance Parole, which are:

    Humanitarian Purposes – travel to obtain medical treatment, attend funeral services for a family member, or visit an ailing relative
    Educational Purposes – semester-abroad programs and academic research
    Employment Purposes – overseas assignments, interviews, conferences or, training, or meetings with clients overseas.

To apply for Advance Parole, a DACA holder should collect and submit the following: 1) a completed I-131 form Travel Document from USCIS; 2) a photocopy of their photo identification, such as a passport or driver’s license 3) a copy of their I-797 form showing approval for DACA; 4) 2 color, passport-style photos of the applicant; 5) documents that support the claim that they qualify for one of the above reasons for Advance Parole, such as medical documents proving the existence of an ailing relative; 6) a check or money order for the current application fee for an I-131. The applicant then mails the necessary documents to USCIS for approval.

A word of warning for anyone who have been ordered to be deported or removed: speak with an immigration attorney before applying for Advance Parole since there are complication for those types of cases. It is possible to be approved for Advance Parole, but still not be eligible for re-entry to the United States.

Emergency Travel
If you are experiencing an extremely urgent situation or otherwise need a shorter processing time, USCIS will consider expediting a request for Advance Parole. Emergency travel and expedited requests are reviewed on a case-by-case basis, and are granted at the discretion of USCIS. Applicants must demonstrate that the meet the criteria of USCIS. Anyone in such a situation should contact a lawyer about whether or not they qualify and to make maximize the chances the request is granted in a timely manner.

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Expansion of Deferred Action Program

President Obama, in late November, outlined an expansion of the deferred action program that will include more people. We do not yet know the full details, but here is a bit about what we do know.

First, he ordered USCIS to expand the number of people who are eligible for DACA and the duration of approvals. While most of the other policy changes are going to take place later, renewals of DACA are now good for three years instead of two years as they previously had been.

Still to be implemented is the removal of the age cap. As originally implemented, DACA only applied to people born after June 15, 1981, but soon it will apply to everyone as long as they came to the country before the age of 16. DACA will also apply to people who were in the country on or before January 1, 2010 so more people will be eligible.

USCIS is also working on creating a new category of deferred actions for the parents of U.S. citizens or permanent residents. USCIS has not said yet if there will be an age minimum or maximum for this category so keep up to date on any new developments. Obama’s executive order requires that a person must have been in the country on November 20. 2014, and it is likely that USCIS will require some documentation to prove that. USCIS will have discretion to grant a deferred action. We do not know the specifics but people without any criminal history or contacts with bad organizations are likely to be approved. If the program is implemented similarly to DACA, people who do not have significant misdemeanors will be eligible as well. Those who are approved will be able to work legally in the United States, but they will not have a path to citizenship.

Finally, the executive action also expands the number of people who are eligible for conditional waivers when applying for an adjustment of status. To be eligible, a person mush be an undocumented immigrant and have resided in the United States for at least 180 days. Also, a person must either be the child of U.S. citizens or be the spouse and child of lawful permanent residents.

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Deferred Action Fee Exemption

Most applications for a deferred action cost $465 (which includes an $85 biometric fee), but for some, it may be possible to avoid paying those fees. USCIS is careful to say that they do not offer a “fee waiver” for deferred action applications, but instead only offers a “fee exemption.” The difference probably does not matter to the average person. In effect, it means that instead of submitting the usual fee waiver form, each applicant sends a letter explaining the reason they believe they are eligible for an exemption, along with documentation to support the claim. Such documentation should include proof of annual income along with other documents proving the specific exemption.

The applicant then waits for approval of the exemption, and then, after approval, submits the application for a deferred action along with the exemption letter from USCIS.

There are three stated reasons that a person may be granted a fee exemption for a deferred action and all of them require that the applicant earn less than %150 of the U.S. poverty level, which is recalculated each year.

    1. The applicant is under 18 years of age and homeless, in foster care, or otherwise lacking any family support.
    2. The applicant suffers from a serious chronic disability and consequently cannot care for themselves.
    3. The applicant, at the time of the request, accumulated $25,000 or more in debt in the past 12 months as the result of unreimbursed medical expenses for themselves or an immediate family member.

Anyone who qualifies for an exemption is in a desperate situation. Some attorneys would be willing to accept your case pro bono or at a discounted rate, and it would be worth talking to attorney to make sure it is done correctly.

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Renewals for Deferred Actions for Childhood Arrivals

Immigrants who successfully applied for the Deferred Action for Childhood Arrivals (DACA) program soon after it went into effect in August 2012 will soon have their paperwork expire. The terms for both the deferred action and the accompanying employment authorization document are for 2 years. That means the first approvals will expire in late summer and early fall. USCIS is in the process of designing the renewal paperwork for deferred actions.

First, the bad news. It appears the filling fee is going to remain the same. It will cost $465 to file, regardless of whether someone is renewing or applying for DACA the first time. Applicants will also have to submit the same three forms that were submitted the first time: I-821D, I-765, and I-765WS.

Now, the good news. Applicants will not have to resubmit the supporting documentation. Only a handful of documentation should be necessary for applicants who have had no new criminal charges and have not been in any removal proceedings over the last 2 years. Also, USCIS is assuring immigrants that most applications will be processed in under 120 days (about 4 months).

It is worthwhile for applicants to prepare in advance, resubmit their paperwork, and ensure that there is no interruption in their eligibility to work.

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Utah’s Same-sex Marriages Eligible for Immigration Benefits

Last Friday, the Department of Justice released a video (embedded below) that states explicitly the federal government will treat Utah’s same-sex marriages as “lawful and considered eligible for all federal benefits.” Currently, same-sex marriage licenses are not being issued in Utah, but couples that are already married are eligible for immigration benefits. Among those benefits are a higher priority for the receipt of green cards (i.e. permanent resident cards) and a shorter wait time to become a U.S. citizen.

For couples who can no longer become married in Utah but would like to be, it is possible to be married in other states. New Mexico and California are the closest states that currently perform same-sex marriages. Although Utah will not recognize those marriages either, the federal government will. The federal government recognizes marriages that were legal at the time the were performed, regardless of where the couples move or travel afterward.

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Citizenship Naturalization Process

Applicants who have determined that they are eligible for naturalization are likely to be curious about the process of naturalization and what to expect. (Other people may be curious, too.)

First, applicants (or their attorneys) fill out the N-400. Every question should be answered, and it should be written in CAPS. What supporting documentation to submit depends on the applicant’s history and basis for filing the N-400, but each application requires a photocopy of the front and back of their Permanent Resident Card, 2 passport style photos, and a check for the filling fees.

After USCIS receives the application, they will send a notice for a “biometric” appointment. Basically, they will take the applicants’ fingerprints and possibly their pictures so that they can conduct background checks. Assuming that applicants have no criminal history, no ties to terrorist or communist organizations, and no other red flags, then they should pass the background check. It is possible to select another appointment date, but if at all possible, applicants should go to their appointment on the assigned date.

USCIS will send a notice for another appointment, this time for the naturalization interview. Some applicants may qualify for a waiver, but most applicants will need to be ready to take a civics test and to speak to the interviewer in English. The whole interview will be done in English, and one of the interviewer’s goals will be to test the applicant’s ability to communicate in English. The interviewer will ask up to 10 questions on civics and the U.S. government; once the applicant has correctly answered 6 questions, the questions stop. The applicant will also need to read one sentence in English and write one sentence in English. An applicant will get up to 3 chances to read and write a sentence correctly.

An applicant who passes the naturalization interview and the background check is likely to be recommended for citizenship. Applicants will get a final notice for their swearing in ceremony. Usually, many applicants are sworn-in at once. Either a United States judge or a USCIS officer will swear in the applicants, and the applicants must swear allegiance to the United States. After that, applicants are officially U.S. citizens. They can vote, serve on juries, obtain a U.S. passport, and generally have the same rights as citizens born in the United States.

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Citizenship Naturalization Requirements

The process of naturalization grants foreign born citizens or nationals U.S. citizenship, provided they meet the requirements Congress established. Previously, I have written about getting citizenship through military service. This information is for civilians wishing to become naturalized citizens.

The most common way for a person to become a citizen is by being a lawful permanent resident (green card holder) for at least 5 years and is at least 18 years old. After 5 years, a potential applicant may fill out “Form N-400” to start the process. During the past 5 years, the applicant must have spent at least 30 months (2.5 years) of that time inside the United States. Also, the applicant may not have had any foreign trips that lasted longer than 6 months. (These rules exist under the rationale that applicants who spends more than half their time outside the country may not have strong enough ties or allegiance to the United States.)

Another way a person can apply is if they are at least 18 years old, have been a lawful permanent resident for 3 years, and have been married to and living with a U.S. citizen for 3 years. The U.S. citizen spouse must have been a citizen for all of that 3 year period. Such applicants also fill out Form N-400.

This next way is relatively rare but is worth mentioning. A small group of people are classified as “U.S. nationals” and yet were not born U.S. citizens. People born in some U.S. territories, such as American Samoa, belong in this category. U.S. nationals who have lived in a state long enough to be legal residents can request naturalization through Form N-400; it is not required that they be a permanent resident first.

For some people it may be possible to have USCIS declare that they automatically became a citizen after they were born. This requires filling out Form N-600 “Certificate of Citizenship.” Often, the N-600 is naturalization as well, since such applicants are born as citizens of a different country but become citizens after birth. The N-600 deserves its own post, however.

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What We Know about Deferred Action for Childhood Arrivals

USCIS has given us a few details about the Obama administration’s policy of deportation relief, or what is now being called “deferred action for childhood arrivals.” On August 15, USCIS should have the forms and instructions available and will start accepting applications for deferred action.

To be eligible, applicants must meet all of these requirements: 1) They must have been under the age of 31 as of June 15, 2012; 2) moved to the United States before their 16th birthday; 3) lived in the United States, uninterrupted, since June 15, 2007; 4) been physically present in the United States on June 15, 2012 and on the date of their request for deferred action; 5) either entered without a visa before June 15, 2012 or had their visa expire before June 15, 2012; 6) be currently in school, have graduated from high school, received a GED, or be an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and 7) not have been convicted of specified criminal offenses and not pose a threat to national security or public safety.

That last point is important because it means that USCIS will have discretion to deny deferred actions for many reasons, and it does not appear that an applicant can appeal a decision. The criminal offenses for which an applicant will be denied are any felonies, a “significant” misdemeanor, or three or more misdemeanors of any type. Significant misdemeanors are those involving burglary, domestic violence, sexual abuse or exploitation, unlawful possession of firearms, driving under the influence, drug distribution, or any other misdemeanor for which an applicant was sentenced to more than 90 days in jail.

As part of the application fee, an applicant will pay for “biometrics” so that USCIS can conduct a background check. The total of the filling fee and the Employment Authorization Document fee will be $465. People approved for the Employment Authorization Document will be able to work in the United State for two years. With any luck, the deferred action will continue beyond that point, or, better yet, Congress will create a path for DREAMERS to get permanent residency.

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K-1 Visas for Fiancé(e)s

These days, it has become more common for two people from different countries to meet and become engaged. With the internet, messageboards, dating services, or travel, two people from different parts of the world can form lasting relationships and even marry. If one of the people is a United States citizen, the K-1 visa is likely to be of interest.

A K-1 or fiancé visa is a nonimmigrant visa that allows a fiancé or fiancée of a United States citizen to enter the country. A K-1 visa requires an immigrant to marry his or her U.S. citizen petitioner within 90 days of entry. After the marriage, the foreign citizen can adjust their status to become a lawful permanent resident. If a K-1 visa holder does not marry the petitioner within 90 days of entry, the immigrant must depart the United States. Unfortunately, such immigrants cannot adjust their status using other criteria and must depart the United States before reentering.

The majority of K-1 visas are granted, which makes the K-1 visa a good option for immigrants who meets the criteria. The U.S. citizen petitioner must file the I-129F form for the immigrant. Upon the immigrant’s entry into the United States, the couple has 90 days to marry and file an adjustment of status. Once the I-129F is issued, you have four months to make all travel arrangements and make the entry into the United States.

Both the petitioner and the fiancé(e) must be eligible to be lawfully married in the state of residence of the petitioner, which means that everyone must be either unmarried or have had their marriages legally ended through divorce, annulment, or death. Also, the couple must have met in person at least once during the two years before filing the petition (unless there is a strong religious or cultural reason, which might allow for a waiver). Finally, the petitioner must be able to prove they can financially support their future spouse.