Natty Shafer Law

Utah lawyer for criminal and immigration cases

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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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U Visas

The U Visa (officially “U nonimmigrant status”) is a humanitarian program intended for crime victims. It allows victims to work and stay legally in the United State for four years, with the possibility of renewal. After three years, a U Visa holder may apply for a permanent resident card (green card) if they have lived continuously in the U.S. for that period, and they cooperated with law enforcement with the the prosecution of their case or any other investigations. Unlike some other visa applications, there is no filing fee for the U Visa, and undocumented immigrants are eligible to apply.

Not all crime victims are eligible, but many are, depending on the severity of the crime and where it occurred. The law requires that the victim suffered substantial mental or physical abuse as a result of the crime, and it has to have violated U.S. law, which generally requires that it occurred in the U.S. Victims of domestic abuse are one of the more frequent applicants, but many other crimes qualify too, such as assault, rape, or involuntary servitude.

Law limits the number of U Visas to 10,000 each fiscal year, which ends the last day of September. That limit has not yet been reached this year, but if last year is any indication, it will be reached a few weeks before the fiscal year ends.

Family members who accompany the U Visa applicant may be eligible for a U Derivative Visa. The U Visa “principal” must petition on behalf of qualifying family members. If a U Visa applicant is under the age of 21, the applicant’s spouse, children, parents and unmarried brothers and sisters under the age of 18 may apply. If the U Visa applicant is over the age of 21, only the applicant’s spouse and children may apply.

If you think you or a family member qualify for a U Visa, see an immigration lawyer to help you with the application. In Utah, many undocumented immigrants are afraid to go to the police when they have been victimized, but going to the police is necessary to getting a U Visa and legally remaining in the United States.

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Arizona Immigration Law Goes Down; Utah Next?

We have a clearer picture of the future of Utah’s immigration law today, and there is both good news and bad news for immigrants in Utah. The United States Supreme Court handed down a ruling on Arizona’s immigration law and found three of the four parts to be unconstitutional and at odds with laws enacted by Congress. Utah’s immigration law is currently on hold; in February U.S. District Judge Clark Waddoups put off issuing a decision on Utah’s law until he received “additional guidance” from the Supreme Court. Now that the Supreme Court has spoken, the Utah case will start moving again.

Parts of the Utah law are likely to be found unconstitutional. According to Utah Attorney General Mark Shurtleff, the ruling prohibits police from conducting a warrantless arrest of immigrants. This is a minor victory for immigrants in Utah since it means that Utah cannot arrest someone for their immigration status alone.

The part of the Arizona law which the Court did not strike down requires police officers to verify the immigration status of everyone they detain or arrest. The Court left open the possibility that it would later strike down the law, but declined to do so because it is not yet clear that Arizona will enforce the law in an unconstitutional manner. According to the Court, communication between local law enforcement and Immigration and Customs Enforcement (ICE) is encouraged by Congress, and therefore Arizona’s law was not preempted by federal law. The Court left open the possibility that the law could be overturned on other grounds.

Utah has a similar provision requiring police officers to check the immigration status of people they detain or arrest. Unless Utah implements the law in an unconstitutional manner—such as a racially motivated way—that part of the law is likely to stand. It remains to be seen how long a police officer can detain someone to verify immigration status.

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Rules Still Hazy for Deportation Relief

Over the weekend, we learned little about how the Obama administration is going to implement its new policy of deportation relief. The procedures for application are unknown as well as how someone proves that they are among the eligible immigrants. The Department of Homeland Security directive from June 15 applies to undocumented immigrants under 30 who came to the United States before they turned 16, but the federal government has prosecutorial discretion over who it will grant a Deferred Action.

The details of the work permits are also a little hazy. The administration said that they will be valid for two years and eligible for renewal, but the application procedures have not been laid out.

In the meantime, beware of con artists. Specifically, do not hire a “notario público” (notary public) to do any legal work for you. Unlike most Latin American countries, notarios públicos are not attorneys and cannot practice law. They have no ability to get you a Deferred Action or a work permit. In due time, we will know the proper procedures for the new policy.


Obama’s ‘Stopgap Measure’ for Immigration

Immigrants who were brought to the United States as children received a bit of good news today. The Obama administration announced, effective immediately, it will block deportations of certain individuals. To be eligible, an immigrant must be no more than 30 years old, have arrived in the country before they turned 16, and have lived in the United States for five years. They must also have no criminal record and have a high school diploma, or be serving in the military or have been honorably discharged.

Eligible immigrants can request a “deferred action” that eliminates the threat of deportation for two years. However, the plan does not create a pathway to U.S. citizenship. President Obama called the policy a “stopgap measure” and “the right thing to do.”

The new policy has obvious shortcomings for undocumented immigrants, but if you or one of your family members are among the eligible people, the news has to ease your fears a bit. For one, it may spur Congress to implement a permanent pathway to citizenship by passing the DREAM Act or similar legislation. It also will give you a two year reprieve from deportation, and give you a work permit, which should make it a little easier to work legally.


A Story Too Good to Be True

Con artists find the most vulnerable people in society and take advantage of them. The vulnerable need help and they need hope. Immigrants, especially undocumented immigrants, are among the most vulnerable people in society. Most undocumented immigrants are unwilling to call the police and report crimes for fear of being deported.

A potential client told me of one such scam recently. She paid another woman $3,000 to fix her daughter’s immigration status. The con artist claimed to work for immigration (USCIS), and said she would be able to get her daughter a green card. They communicated regularly for several weeks, and during that time, my client recommend several other people to the con artist. Altogether, she thinks about 30 people in her Utah community paid, and they probably all paid $3,000. Allegedly, the green card was going to come in the mail several weeks ago. Now my client can’t get the con artist to answer the phone.

As I heard the story, I recognized immediately that she was the victim of a con artist, even as she held out hope that this was all legitimate. A real USCIS employee could not accept cash payments to fix someone’s status. Also, there are specific guidelines USCIS must follow. They can’t just wave a wand and fix someone’s immigration status.

While immigration lawyers often ask for money up-front, they are also going to have a permanent office where you can reach them. Also, immigration lawyers know that USCIS rarely acts quickly and would never promise you a green card “next week.” It breaks my heart to see anyone taken advantage of in this way. If you are at all in doubt, ask to see your lawyer’s bar card. Every state bar association will let you know if a lawyer is in good standing. No legitimate lawyer is going to be offended if you ask for their credentials.

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Getting Citizenship or a Green Card through the Armed Services

Obtaining United States citizenship is easier for someone who has served in the military, regardless of whether or not the U.S. was legally in any “hostilities.” When the U.S. is in hostilities, anyone serving can petition for immediate U.S. citizenship, and as an added bonus, the military pays for the filing fees with USCIS. Currently, the U.S. is engaged in legally defined hostilities, and has been since September 11, 2001. That means that anyone who honorably serves in the military right now, even for one day, is eligible. A person can go straight from undocumented immigrant status to citizenship fairly quickly. However, the armed services are not supposed to allow undocumented immigrants to enlist, but immigrants with green cards are allowed to enlist.

For anyone who served in the armed services more than 10 years ago, it is still possible to get citizenship, even if the U.S. was not in hostilities. For service during peacetime, an immigrant needs to have served at least one year and have been honorably discharged. Also, the applicant must have lived in the U.S. for at least 30 months out of the previous five years.

It is possible to get a green card through military service, but it’s fairly rare. To qualify, an applicant must enlist in the U.S. armed services outside the U.S, and their home country’s armed services must recommend them for this immigrant status or they must be a citizen of a country that has a treaty arrangement with the U.S. Only the Philippines, Micronesia, and the Marshall Islands currently have a treaty with the U.S. allowing their citizens this green card status.

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Obama Testing New Policy

Undocumented immigrants received a bit of good news earlier this month when the Obama administration decided not to move forward with approximately 16% of the deportation cases in Denver; a similar percentage of cases were dropped in Baltimore. The immigrants in those cases, a total of about 1,650 people, pose no security risk and will be allowed to stay in the United States. These immigrants’ legal status will not change, however.

President Obama directed the Department of Homeland Security to review the cases of all 300,000 immigrants facing deportation. The policy is being first tested in Denver and Baltimore. If the same percentages hold across the country, nearly 40,000 deportation cases could be dropped. The Obama administration wants to have the policy in place throughout the country by this summer so Utah immigrants may have to wait several months for the policy to be implemented here.

This policy, however, will not be a panacea for Utah immigrants. The affected immigrants will be left in limbo, as they will not be able to obtain a Utah driver’s license, nor will they be able to legally work.