Tuesday, October 28, 2014

Dealing with Delayed DACA Renewals

When the process for extending Deferred Action for Childhood Arrivals (DACA) was announced in early June it was met with a significant amount of excitement and anxiety.  One of several looming questions was with regards to how the U.S. Citizenship & Immigration Service would handle the increased caseload of I-821D and I-765 applications.  The guidelines provided by USCIS stated that, "if you submit your request more than 150 days (5 months) before your current period expires, USCIS may reject it and return it to you with instructions to resubmit it closer to the expiration date."  This requirement left many who initially filed and waited more than six months for adjudication of their DACA with some concerns.

It is recommended by USCIS that your DACA be filed between 120-150 days prior to the expiration of your current employment authorization.  Do not delay in filing it!  You should file it closer to the 150-day mark.  Recently, I have come across a handful of DACA renewals that remain pending close to a couple of weeks from the expiration of their current authorization.  Panic has set in as these individuals, understandably, do not want lose a job, face the risk of being out of work or unable to continue with college.  Therefore, I have compiled some tips (do's and dont's) that you should consider using if you only have 30 days or less remaining on your work authorization and your renewal has been pending more than 90-120 days. Remember that this is all a work in progress and these tips could be helpful on a case-by-case basis.  They are also subject to change if USCIS makes any tweaks to their procedures.

Do: Be vigilant! This is your livelihood at stake and do not let your ability to maintain a job lapse.

Do: Read over the DACA Frequently Asked Questions.  Yes, there are 81 of them.  But, there are some important tips and nuggets of knowledge within.  Question/Answer #49 provides some information regarding short-term extensions for delayed applications:

Q49:  When should I file my renewal request with U.S. Citizenship and Immigration Services (USCIS)?

A49: USCIS strongly encourages you to submit your Deferred Action for Childhood Arrivals (DACA) renewal request between 150 days and 120 days before the expiration date located on your current Form I-797 DACA approval notice and Employment Authorization Document (EAD). Filing during this window will minimize the possibility that your current period of DACA will expire before you receive a decision on your renewal request. If you have filed your renewal request at least 120 days before your deferred action expires and USCIS is delayed in processing your renewal request, USCIS may provide you with DACA and employment authorization for up to an additional 120 days.

Please Note:  USCIS will not provide any such short-term deferred action and employment authorization when USCIS is delayed in reaching a final decision on your renewal request because, for example: 1) of factors within your control (such as failure to file the renewal request within the suggested timeframe or filing an incomplete renewal request); 2) USCIS has not been able to complete your background check; and/or 3) your renewal submission contained evidence that you may not satisfy the DACA renewal guidelines and USCIS must send you a request for additional information or explanation.

Do Not: Use InfoPass at the local USCIS office to try and request that your application be expedited.  Our experience with the local USCIS information officers is that they do not know much, if anything, regarding the DACA process.  Obviously, this could vary from one office to another, but I recommend calling the National Customer Service Center hotline instead (1-800-375-5283).  Even if you take time to do an InfoPass it will have the same impact as making a phone call.  The local office cannot extend your work authorization or produce a new card for you.

Do: Call the National Customer Service Center hotline and make a request for a temporary DACA.  I have not seen a 120-day temporary renewal, but it seems that this request has helped in expediting the process in some cases.

Do: Consider the outside assistance of a congressional representative, if your representative's office is known to be DACA friendly.  You can find your representative's office location through the locator here.

Do: Consider the outside assistance of the USCIS Ombudsman's office.  I have not personally utilized the assistance of this office for immigration problems, since the Tucson congressional offices are extremely helpful with immigration-related problems, but that is an option to consider.

Do: If you have an attorney working on your application, make sure to remain in contact and have the attorney assist with trying to get the application expedited, if needed. 

Good luck and feel free to contact me if you feel there are other tips or information that you think should be distributed to the DACAmented masses.

Thursday, July 17, 2014


WHAT PART OF "ILLEGAL" DON’T YOU UNDERSTAND???  There is always one schmuck that needs to recycle that bumper sticker quote in the comments section of an immigration article.  And it has to be in CAPS!!  And it has to have multiple question marks and perhaps a couple exclamation points.  If it’s not in CAPS and does not have the multiple punctuations, then the point is not made.  So, let me be that schmuck today and pose that question to Pinal County Sheriff Paul Babeu, the Arizona State Militia, Russell Pearce, gubernatorial candidate Frank Riggs and congressional candidate/newest member of the Village People, Adam Kwasman:  WHAT PART OF "ILLEGAL" DON’T YOU UNDERSTAND??!?!?

This lesson is for all those law-abiding folks that came to protest that fictional bus carrying unaccompanied migrant youths (aka UAC’s) to Oracle, Arizona on Tuesday.  The minors are being held by the U.S. government pursuant to the Trafficking Victims Protections Reauthorization Act (TVPRA).  The TVPRA instructs our government to transfer the custody of unaccompanied minors to the custody of Health and Human Services (HHS).  Once in the custody of HHS, the minors are processed for possible removal from the United States which includes evaluation of whether the minor can remain in the U.S. in some form of lawful status.  It is the LAW that was originally signed by President George W. Bush in 2008.

If law-abiding U.S. citizens don’t like the TVPRA or its unintended consequences, lobby to get it amended.  Feel free to peacefully assemble and protest, but don’t block the bus from going to its intended destination (a la the protesters in Murrieta, California).  According to an article by Stephen Lemons in the Phoenix New Times, Oracle resident Robert Skiba was originally tipped off to this busload of migrant youths and Mr. Skiba told Mr. Lemons:

"We're going to engage in peaceful assembly and if these buses with
these people from Central America come in, we're going to stop it.
we're going to turn them around and send them back, just like they
did in Murrieta, California."

Sheriff Babeu even posted on his Facebook page that the “children should be returned to their home country - not to Oracle, Arizona paid for by American taxpayers.”  But, that’s not how it works in the good ‘ol United States, if there is a law we are supposed to follow it.  Right Mr. Sheriff?  Mr. Law Enforcer?

So, if you are following closely, you will realize that the minors that turned themselves into the U.S. Department of Homeland Security are not breaking the law.  In fact, they may not even be “illegal”.  But, what about the protesters?  Would their attempts to stop the bus and send it back be breaking the law?  It turns out that if you read the Arizona Revised Statute, not only would these protesters be breaking the law, there are several possible statutes that they could have been violating including:

            13-2402. Obstructing governmental operations, which is a class 1 misdemeanor;

13-2908. Criminal nuisance, which is a class 3 misdemeanor.

Perhaps there are other laws that they could have violated in the process, but those are just a few examples.  So, the irony of this situation is that the minors on the bus would not be the law breakers, the bus blockers would have been!  Would Sheriff Babeu, who allegedly conspired in the planning of this protest and who always preaches the rule of law, have arrested the bus blockers?  

There is no doubt our immigration laws are currently a mess and are in dire need for reform.  If you asked Mr. Kwasman, Mr. Pearce and others if they support the comprehensive immigration reform bill that’s before congress they would undoubtedly respond “no”.  They will tell you that we need to enforce the laws on our books right now! That if we enforce our laws and seal our border with a triple border fence, drones and man-eating alligators in a moat, we might solve our immigration problems.  But, the irony of all this is that the moment they realize they don't like one of our current immigration-related laws (the TVPRA) they scream for reform and encourage illegal activity against immigrants.


Friday, January 31, 2014

A Courageous and Resilient Pledge

Matthew Lammers became a naturalized U.S. citizen over thirty years ago in 1983, but it wasn't until January 31, 2014, when he actually participated in a naturalization ceremony that he can actually remember and tell his children about.  From my observation, Matt loved every moment of the experience.  Back in 1983 he was a one-year-old baby who was born in Seoul, South Korea and immigrated to the United States after being adopted by a family in Kansas. Today, Matt is married and was at the ceremony supporting his wife who was sworn-in as a naturalized U.S. citizen.  From what I have read about Matt, he feels uncomfortable being referred to as a "hero" so I will respect his wishes here.  Instead, I will refer to him as courageous and resilient.

I first noticed Matt at today's ceremony when the U.S. Citizenship & Immigration Service officer was asking if anyone in the audience would lead in the Pledge of Allegiance.  Most candidates for naturalization are typically nervous or shy and today was no exception.  None of the candidates volunteered to do so.  On the other hand, Matt seemed thrilled with the opportunity.  He explained to the officer that he was a retired Staff Sergeant from the U.S. army and had served in two tours in Iraq.  After listening to him I couldn't think of a better candidate to lead in the recitation of the Pledge. 

Here is Matt leading the 46 naturalization applicants along with their families and friends in the Pledge of Allegiance:

Being curious about Matt I looked up his story online and found that there had been numerous articles written about him.  I learned that he was injured in Iraq on June 10, 2007 when a Humvee he was in drove over an explosively formed projectile (EFP). Matt became a triple amputee, losing both his legs and his left arm as a result of that blast.  I learned that he kept a positive outlook and attitude in spite of these injuries. I also found out that he received two Purple Hearts for his service.  Matt is the epitome of courage and resilience.

At naturalization ceremonies there is always time set aside after the oath is administered for newly naturalized citizens and their loved ones to speak openly about their road to becoming a U.S. citizen.  At this ceremony only two individuals spoke out.  One of them was Matt.

The other individual was sitting immediately behind Matt and was a man who fled Iraq and sought refuge in the United States after being shot multiple times by the military.  Watching this man speak and Matt intently listening was a treat.  

As the ceremony came to a close, the presiding judge made a point to thank Matt for his service on behalf of the United States.  Every naturalization ceremony is special in its own right, but today's ceremony was made even more so by Matt's presence. 

I feel extremely fortunate that I attended this ceremony and had the opportunity to meet a hero courageous and resilient human being that we should all admire.

Wednesday, August 7, 2013

Serenity Now!

Over the past several years I’ve been asked what I enjoy about being an immigration lawyer.  My response has always included that “I love the camaraderie of immigration attorneys and how the majority of us have similar passions and respect one another even when we disagree.”  You don’t see that in other areas of law. Typically lawyers are in court battling one another.  In immigration law, our adversary is always the government.  For this reason, the past year has been pretty difficult for me to comprehend.  With the heated debates on immigration reform and what should or should not be included in the bill advocates and attorneys are increasingly butting heads.  That is perfectly reasonable and expected.  However, the attacks have become personal and in some cases encroached into the realm of dangerous libel.  With immigration attorneys currently under attack in California by the state legislature, we don’t need to be cannibalizing one another.

What I’ve seen disgusts me.  It should disgust you as well.  I’m not going to name any names and that is not the point of this.  You know who you are.  We are witnessing social media-based personal attacks against lawyers, DREAMers and other immigration activists.  It really needs to come to a grinding halt.  Nothing is more disappointing than to see lawyers act like my 5 and 6-year-old girls fighting over the last Skinny Cow Ice Cream cone in our freezer. 

There is a modicum of respect that should be followed by anyone in this continual debate on immigration reform.  It does not have to become a personal battle.  Furthermore, you can make your point without attacking another person’s professionalism or passion for their work.  If you don’t like a person because of their differing views or something they have said you do not need to blast your thoughts out every time on Facebook or Twitter or on your personal blog.  That’s plain dumb.  Plus, the mass majority of us, while enjoying some of the back-and-forth with our popcorn in hand, have grown tired your endless personal debates.  We get it: you don’t like each other…move on to something new or just keep it your arguments in private chat-rooms, e-mails or messages.

So, please for the sake of all humanity I respectfully ask you to stop with the nonsense.  Thank you.  

Tuesday, April 2, 2013

DACA Post-Filing Tips

            Remember when you filed for DACA?  You were extremely excited, anxious and ready to take the next step in your life’s journey.  Then reality set in: one month passed.  One month turned to two.  Two months turned to three, and so on.  Suddenly, you felt like the process was taking forever. 

Sometimes dealing with the U.S. Citizenship and Immigration Service (USCIS) can be extremely frustrating.  No matter what you are told by friends or family, no path to getting immigration benefits is the same.  For some the path is smooth and devoid of any problems.  For others the path can be bumpy and frustrating.  Therefore, the following are some important tips for those of you who have already received your DACA approval, and also, for those who are still dealing with the maddening bureaucratic delays or denials from USCIS.

I received the dreaded Request for Additional Information (RFE), what should I do?

            First thing you should not do is panic.  RFE’s are commonly issued in all sorts of immigration applications/petitions.  You should sit back and read the request to figure out what exactly the government is asking for.  If you have previously engaged an attorney, you should speak with the attorney’s office to make sure that they are aware of the RFE and that they received a copy.  Note the deadline (due date) on the RFE and put it on your personal calendar.

            Read the RFE carefully.  Address any of the concerns raised in the RFE by gathering up any additional evidence that the USCIS is looking for.  Think outside the box when you are trying to address any of the concerns raised in the RFE.  Get any credible corroborating evidence that will supplement what you may have already submitted to USCIS.   If you have been working with an attorney, you should meet with the attorney and review the request.  Make sure to respond in a timely manner so you don’t delay the processing further. 

            I was denied, what should I do?

            Again, do not panic.  I know this is easier said than done, but you need to first review the denial carefully.  If you have an attorney, spend time reviewing it with the him or her.  You cannot file a motion to reopen or reconsider a denial, nor can you appeal it. USCIS has made it clear that it will not review its discretionary determinations. USCIS states on its website:

You may request a review using the Service Request Management
Tool (SRMT) process if you met all of the process guidelines and
you believe that your request was denied due to one of the following errors:

·         USCIS denied the request for consideration of deferred action for childhood arrivals based on abandonment and you claim that you did respond to a Request for Evidence within the prescribed time; or
·         USCIS mailed the Request for Evidence to the wrong address, even though you had submitted a Form AR-11, Change of Address, or changed your address online at www.uscis.gov before the issuance of the Request for Evidence.

You can re-file if you are denied and feel that it was incorrect or that you have additional evidence to provide to the government that may not have been available for the first application.  A new filing will need new forms and fees, along with all the documentation again.

Remember that DACA is a temporary program.  It is not the DREAM Act.  Not getting approved for DACA does not mean that you would be precluded from qualifying for the DREAM Act or any other future immigration legislation.  Therefore, do not lose hope.  Stay optimistic that we will get comprehensive immigration reform this year and you will not need to be completely dependent upon DACA.

            I was approved! Now what?

            Once you receive your employment authorization document (EAD), make sure to review the card to make certain that all the information is correct.  If there is incorrect information on the card due to USCIS error you should apply for a replacement without a fee via form I-765.  Make a copy of the card (front and back side) for your own records.  Make note of the expiration of the card and calendar a reminder that you will need to file for a renewal, assuming there is no intervening legislation that will make renewing DACA moot.

            Apply for a Social Security Number.  You can locate the nearest Social Security office at www.socialsecurity.gov/locator.  Here is the form that needs to be completed: http://www.socialsecurity.gov/online/ss-5.pdf.  Review this pamphlet: http://www.socialsecurity.gov/pubs/deferred_action.pdf.   If you have an Individual Taxpayer Identification Number (ITIN) the Internal Revenue Service provides the following advice about voiding it:

Once you receive a SSN, you must use that number for tax purposes
and discontinue using your ITIN.  It is improper to use both the ITIN
and the SSN assigned to the same person to file tax returns.  It is your responsibility to notify the IRS so we can combine all of your tax
records under one identification number.  If you do not notify the IRS
when you are assigned a SSN, you may not receive credit for all wages
paid and taxes withheld which could reduce the amount of any refund
due.  You can visit a local IRS office or write a letter explaining that
you have now been assigned a SSN and want your tax records combined. 
Include your complete name, mailing address, and ITIN along with a copy
of your social security card and a copy of the CP 565, Notice of ITIN Assignment, if available.  The IRS will void the ITIN and associate all
prior tax information filed under the ITIN with the SSN.  Send your letter to:

                                        Internal Revenue Service
                                        Austin, TX 73301-0057

            Apply for a driver’s license.  Depending on your state’s law you should go to the nearest Department of Motor Vehicles (DMV) and apply for a driver’s license.  For most states the EAD plus Social Security card should be sufficient documentation for a driver’s license.  If you live in either Arizona or Nebraska, these states do not currently issue driver’s licenses to DACA grantees.  There is a class-action lawsuit pending in Arizona against Governor Jan Brewer’s unconstitutional executive order denying DACA recipients driver’s licenses. 

            Should I apply for advance parole (travel permission for exiting and re-entering the United States)? 

The USCIS answers this question on their Frequently Asked Questions (updated 1/18/2013):

Not automatically. If USCIS has decided to defer action in your case
and you want to travel outside the United States, you must apply for
advance parole by filing a  Form I-131, Application for Travel Document
and paying the applicable fee ($360). USCIS will determine whether your
purpose for international travel is justifiable based on the circumstances
you describe in your request. Generally, USCIS will only grant advance
parole if your travel abroad will be in furtherance of:

·         humanitarian purposes, including travel to obtain medical treatment, attending funeral services for a family member, or visiting an ailing relative;
·         educational purposes, such as semester-abroad programs and academic research, or;
·         employment purposes such as overseas assignments, interviews, conferences or, training, or meetings with clients overseas.

Travel for vacation is not a valid basis for advance parole.

You may not apply for advance parole unless and until USCIS defers
action in your case pursuant to the consideration of the deferred action for childhood arrivals process. You cannot apply for advance parole at the same
time as you submit your request for consideration of deferred action for
childhood arrivals. All advance parole requests will be considered on a
case-by-case basis.

If USCIS has deferred action in your case under the deferred action for
childhood arrivals process after you have been ordered deported or removed,
you may still request advance parole if you meet the guidelines for advance
parole described above. However, once you have received advance parole,
and before you actually leave the United States, you should seek to reopen
your case before the Executive Office for Immigration Review (EOIR)
and obtain administrative closure or termination of your removal proceeding.

            If you do plan on applying for advance parole, it is highly recommended to speak to legal counsel because there are serious inadmissibility bars that you could subject yourself to if you exit the United States.

            Where do we go from here?

            This is an exciting and nerve-wracking time no matter whether you have been approved for DACA, still awaiting a decision or are dealing with a denial.  You need to keep apprised of any changes in agency policy or the law.  You should speak to your congressional representatives about the need for immigration reform and how it would benefit yourself and your family members or friends.  DACA is only a temporary fix and does not help everyone.  Therefore, do not stop advocating for CIR.  Stay optimistic and remain vocal!

Saturday, October 6, 2012

Disagree with Gabriela Saucedo Mercer and She Will Censor You

Disagree with Gabriela Saucedo Mercer and She Will Censor You

On October 2, 2012, a tragic event occurred near the U.S./Mexico border.  U.S. Customs and Border Patrol Agent Nicholas Ivie lost his life and another agent was badly wounded.  From what I have read and heard, Ivie was an exceptional CBP agent who once carried a severely wounded pregnant woman 1 1/2 miles to safety through the treacherous Arizona desert.  Agent Ivie was survived by his wife and two daughters.  My thoughts and prayers go out to his family and colleagues.

Rather than honoring a life lost and just offering condolences, some politicians attempted to capitalize on Nick's death for political gain.  Arizona Governor Jan Brewer immediately released a statement, "Arizonans and Americans will grieve, and they should, but this ought not only be a day of tears. There should be anger, too. Righteous anger -- at the kind of evil that causes sorrow this deep, and at the federal failure and political stalemate that has left our border unsecured and our Border Patrol in harm’s way. Four fallen agents in less than two years is the result."

Gabriela Saucedo Mercer, who has for two years made immigration one of the primary focuses of her campaign for U.S. congress in Arizona's Third District, went beyond Brewer's comments.  The day of this tragedy, Mercer recklessly posted on Facebook: "And yet another one of our finest Border Patrol Agent is murdered by illegals and one seriously wounded. And some people don't want me to talk about the wide open borders in Arizona? My heart and prayers go out to the families of the Border Patrol Agents involved in this tragedy." 

Yes, Saucedo Mercer somehow knew that Agent Ivie was “murdered by illegals” without any concrete evidence to back up her claim.  Even more tragically, on October 5, the FBI confirmed that Agent Ivie was killed by friendly fire.  The FBI came to this conclusion through investigative, forensic and analytical tests.   It is interesting to note how Saucedo Mercer gets her political agenda stated first and then sends her thoughts and prayers to the family.  That's all class!

Once this information was released by the FBI, numerous individuals, including myself, went to Saucedo Mercer’s Facebook page and demanded that she retract her reckless and ill-advised earlier comments and publicly apologize.  Saucedo Mercer, who holds herself out to be a defender of the Constitution and individual liberties, reacted in appropriate fashion: She erased the comments from any person who criticized her post and blocked us all.  I guess Saucedo Mercer forgot about the 1st Amendment. 

Ivie’s legacy will live on through his family and other hard-working and well meaning Border Patrol agents.  It was a life lost way too young.  Sadly, however, as of the writing of this blog, Saucedo Mercer continues to leave this misinformation on her Facebook page.  For that reason alone, she should continue to get questioned about her commitment to running an honest campaign. 

We live in an era where anyone can pretty much say anything without any truth, and some uninformed person will believe it.  If that’s the sort of political game Saucedo Mercer wants to play, good luck with that.  However, by censoring detractors and fact checkers, her actions demonstrate that she is undeniably unprepared to be a congresswoman and deal with individuals who disagree with her or protect our constitutional right to free speech.

A DACA Pep Talk

A DACA Pep Talk

The past few months have been both exciting and terrifying for undocumented youth.  Exciting for the opportunity to apply for an employment authorization document and contribute to this country.  Terrifying to not know what is going to happen after the November 6 election.  However, yesterday was another sobering reminder that while we have made some good strides, we have a long way to go.  It was a reminder that while we can rejoice over the Deferred Action policy we must continue to push our elected officials beyond just a DREAM Act.  We need a DREAM Act Plus, also known as Comprehensive Immigration Reform.

So, what happened yesterday?  One of the most prominent faces in the current immigrant rights movement, Jose Antonio Vargas, was arrested and charged with driving without a valid driver’s license. No, this did not happen in Arizona.  It happened in Minneapolis-St. Paul which continues to operate in Secure Communities.

According to the MinnPost, Jose was released approximately 2 ½ hours later.  But, what if the person wasn’t a Pulitzer prize winning journalist?  What if Jose was not released and an ICE hold was placed on him?  Jose is 31 years old and because of his age he does not qualify for the current program called Deferred Action (DACA).  He is a low priority according to the ICE guidelines, but you never know what can happen when an ICE officer has all the discretionary power.

The election is a perfect time to hold all political figures accountable for their past and future decisions. 

Since Jim Lehrer neglected to address immigration as a domestic policy in the first debate, I suppose we’ll hear about it in one of the upcoming debates.  Both presidential candidates should provide their plans for reform and define their differences and similarities.

We need to know whether Governor Mitt Romney will deport a person like Jose?  If elected president, will he deport Jose’s parents?  Will he deport someone who is not as decorated as Jose?  Will he continue to support state-based immigration laws like SB-1070?  Will he continue to flip back-and-forth on immigration or show some backbone and stick with a position?  These questions should be directly asked of him and he should give us straight answers. 

We need to know what are President Obama’s exact plans for passing comprehensive immigration reform.  Does he really believe that he can get reform passed if re-elected?   Does he truly believe that congress will work with him and why?  Why is ICE still detaining low priority individuals and deporting them when there is a policy that they are not supposed to be doing this?  We need a plan, not lip service.

Moral of the story: this is not a time to let your guard down.  If you have applied for DACA and you already have your biometrics appointment or your work permit this is a time to celebrate, but don’t forget the others who are currently left out in the cold.  If you have not been involved with local advocacy, get involved.  If you are involved, keep it up!  Hold your local elected officials and candidates accountable.  Volunteer for candidates that support immigrant-friendly policies. Share your stories. Blog. Write Op-eds.  Make sure that like-minded U.S. citizens register to vote.  Get your brothers, sisters, parents and friends involved in the movement.

Advocates that have pushed for DACA should be proud of the results of their hard work.  But, we must continue to push for a broader reform that can benefit the entire undocumented community and make for a more rational path to this country for future flows of immigrants.