Natty Shafer Law

Utah lawyer for criminal and immigration cases

Leave a comment

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.

1 Comment

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.

Leave a comment

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.

1 Comment

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.

Leave a comment

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.

Leave a comment

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.

Leave a comment

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.

Leave a comment

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.

Leave a comment

The Utah Driving Privilege Card

There’s a lot of misinformation about the Utah Driving Privilege Card (DPC), which allows undocumented immigrants to legally drive in Utah. The program has been in place since 2005 and was designed to encourage undocumented immigrants an avenue to drive legally and obtain auto insurance. Unlike a regular driver’s license, the DPC must be renewed each year and also is not supposed to be used as legal identification.

There was some concern when the program was instituted that no one would obtain the privilege card because it’s more or less a tacit admission of undocumented immigrant status. However, it has not worked out that way in practice. The Utah Driver License Division only notifies law enforcement or Immigration and Customs Enforcement (ICE) if the applicant has an outstanding warrant for arrest or has been accused of a felony. As a consequence, Utah issues about 41,000 driver privilege cards per year.

Currently, here is what is required every time a person applies for a DPC: 1) A birth certificate or passport, along with a certified translation if the document is not in English; 2) Another form of identification such as a previous DPC, a Matricular Consular Card from the Mexican Consulate in Utah, another state’s driver’s license, or even an employee ID; 3) Either a valid social security number or an Individual Tax Identification Number from the IRS.

There are also some items you will need to get your first DPC: 1) Proof of Utah residency using certain mail or other documents (this is also necessary if you are changing your address from a previous DPC); 2) A fingerprint card placed in a sealed envelope from an authorized law enforcement agency; and 3) Proof of a driver’s education class, with certified translation into English, if necessary.

The fingerprint card tends to worry immigrants the most. In practice it has not led to a noticeable uptick in deportations. As mentioned previously, there are specific circumstances when the Driver’s License Division notifies law enforcement, but otherwise the fingerprint card is not used.