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Immigration law in the United States is perpetually changing. This blog is meant to serve as a resource for current updates in law and policy that affect immigrants and immigrants' rights. This blog should not be construed as legal advice; it is the author's opinion on relevant news in the immigration context. If you have any questions about how the changing law and policy may affect you, please contact us to schedule a confidential consultation.



"Think about it -- we define ourselves as a nation of immigrants.  That’s who we are -- in our bones.  The promise we see in those who come here from every corner of the globe, that’s always been one of our greatest strengths. It keeps our workforce young.  It keeps our country on the cutting edge.  And it’s helped build the greatest economic engine the world has ever known." - Barack Obama

Yesterday, President Obama announced his 2013 plan for common sense, comprehensive immigration reform during a speech at Del Sol High School in Las Vegas, Nevada. In his speech, he noted that most Americans agree that it is time to "fix the system that has been broken for way too long" and that immigration reform will strengthen our economy and our nation's future.

President Obama has made a commitment to key principles at the heart of meaningful immigration reform, starting with an earned path to legal status that eventually could be converted to citizenship for the 11 million undocumented in our communities, and including:

  • Eliminating the extremely long wait times for families to be reunited with loved ones with temporary and permanent reforms to the family-based immigration system.
  • Treating same-sex families just like other families.
  • Eliminating long wait times for employers and prospective employees by reducing backlogs and adding visas.
  • Granting green cards to graduates in science, technology, engineering and math fields, creating a "startup visa" for job-creating entrepreneurs, and expanding opportunities for investors contributing to U.S. economic development.
  • Expediting an opportunity for DREAMers to earn their citizenship.
  • Investing in our immigration courts and providing greater protections for those least able to represent themselves.
  • Providing broader discretion to judges to help keep families together when they face hardship.
  • Imposing tough criminal penalties on notarios who prey on vulnerable immigrants.

Now we must call on Congress to move forward on immigration reform legislation. If Congress cannot act, however, President Obama will move forward on his own bill for them to act on immediately. 


Comprehensive Immigration Reform

"Today, a bipartisan group of eight Senators unveiled a new set of comprehensive immigration reform principles, adding to the growing body of evidence that legislation to fix our nation’s broken immigration system is not only necessary, but possible. Although the framework offers only a very rough outline of what comprehensive immigration reform legislation might look like, the principles are a very strong starting point for legislative negotiations that should now begin in earnest.     

In presenting their proposal, the Senators reflect an understanding of the important role immigrants play in shaping our social and economic futures, and the critical need to create a fair and workable roadmap to citizenship for the 11 million undocumented individuals living and working in the United States. Many issues remain to be debated and refined, and elements of the principles raise some real concerns that will need to be addressed in the months ahead."


DHS Finalizes Rule for Provisional Unlawful Presence Waiver 

On January 3, 2013, the Department of Homeland Security (DHS) will publish a final rule that will allow certain family members of U.S. citizens who are physically present in the United States to remain in the country while applying for the waiver they need to become permanent residents.

The process change permits certain immediate family members of U.S. citizens (spouses and parents of citizens at least 21 years of age) to apply for a provisional waiver of unlawful presence while remaining in the U.S., thereby cutting down on the lengthy waits-sometimes a year or more-during which these citizens are separated from their families during the process. To obtain the waiver, applicants would still need to meet the strict letter of the law which requires them to prove that family separation will cause their American citizen spouse or parent extreme hardship.

If the waiver is granted, the foreign national must still leave the U.S. and apply for and receive an immigrant visa abroad before returning to the U.S. However, the length of time that American families are forced to remain separated should be lessened considerably.

The final rule has been expanded to include those eligible family members who have had removal proceedings administratively closed and whose cases have not been recalendared at the time of filing the provisional waiver application. However, anyone with a final order of removal, or who has been previously removed, will not be eligible for the new waiver process.

"The new rule is a smart way to remove one of the biggest roadblocks for families who already qualify for immigration benefits, but who wouldn't put their loved ones at risk under the current system. We don't know exact numbers, but this simple processing change will have a huge impact on U.S. families caught in the current immigration mess. Stateside waiver processing doesn't grant a legal status or protect someone from immigration enforcement, but it's a good solution for many who were looking for a safe way out of the immigration labyrinth. The new rule isn't perfect, and there are questions we hope to have answered before the rule goes into effect on March 4, but the agency has left the door open to improving the process to cover other types of cases if this initial rollout is successful," said Laura Lichter, AILA President.



Massachusetts Governor Deval Patrick Leads the Way on In-State Tuition for Qualifying DACA Recipients

Below are excerpts from an article in the Boston Globe's November 18th issue. Hats off to Governor Patrick and his cabinet for taking another step in the right direction for Massachusetts' youth!

"Governor Deval Patrick will direct state colleges and universities Monday to allow young illegal immigrants to pay the lower resident rate for tuition and fees as soon as they obtain work permits through a new federal program, a senior administration official said Sunday.

The Patrick administration official, who spoke on condition of anonymity because the governor is sending a letter to the Board of Higher Education Monday, said the change takes effect immediately. State officials said students paying nonresident tuition now at one of the 29 state colleges or universities may apply for a refund for this semester, but not for prior semesters.

“That’s amazing,” said an elated Cairo Mendes of Marlborough, a 19-year-old native of Brazil here since he was 9 who could afford only two classes at Massachusetts Bay Community College this semester because the cost is double the resident rate. “My life is about to get a lot better, just the fact that I can go to college in peace.”

Patrick’s announcement dramatically slashes the cost of a college education for immigrants who until now had to pay out-of-state rates.

For example, the flagship University of Massachusetts Amherst costs $26,645 this year for nonresidents, compared with $13,230 for residents, while Bunker Hill Community College costs $5,640 this year for residents, compared with $13,880 for nonresidents. And Framingham State costs $8,080 for residents this year, compared with $14,160 for nonresidents.

Patrick’s decision comes less than two weeks after a contentious election season, and it is likely to rankle critics in a state where immigration has been a hot political issue. In 2004, the state Legislature passed a bill allowing illegal immigrants to pay in-state tuition, but then-Governor Mitt Romney, this year’s Republican presidential nominee who just lost to Obama, vetoed the measure, and subsequent efforts failed.

After Romney’s 2004 veto, the Senate passed a measure allowing illegal immigrants to pay in-state tuition rates in 2005, but it failed in the House in early 2006.

The economy soured soon after that, and support for the measure evaporated. Since then, the measure has largely seemed dead.

In an attempt to revive it last year, Patrick showed up unannounced at a State House hearing to urge lawmakers to approve the measure, but it was not passed into law.

On Sunday, the senior administration official said Patrick’s letter to the Board of Higher Education reflects his administration’s interpretation of the effect of Obama’s program on immigrants who had been here illegally.

Education Secretary Paul Reville said Sunday that Obama’s program changed illegal immigrants’ circumstances enough to clear the way for them to pay resident tuition. Though they are not eligible for green cards, they will be allowed to stay for at least two years and, most importantly, obtain work permits.

He said immigrants with federal work permits have been allowed to pay resident tuition since 2008.

To pay resident tuition in Massachusetts, state officials said, immigrants must meet the same standards as any other student, including fulfilling academic requirements and the minimum length of state residency for that school.

 It is unclear how many Massachusetts students will be affected by Patrick’s announcement. From 10,000 to 20,000 immigrants in Massachusetts could apply for Obama’s deferred action program, according to estimates from the Washington-based Migration Policy Institute, but those numbers have not materialized.

Nationwide, more than 300,000 immigrants have applied for the program, much lower than initial government estimates of 800,000 or more. Of these, the government has approved more than 53,000 applications and rejected more than 10,000. Officials said the rest are under review."



Bill Ong Hing on Comprehensive Immigration Reform

What Is Comprehensive Immigration Reform? 
For immigrants and immigrant rights advocates, the post-election news that many Republicans understand that comprehensive immigration reform has to be tackled and that key Senate leaders such as Charles Schumer and Lindsey Graham already are working on a blueprint is splendid. The challenge will be in determining just what should go into that comprehensive package? 

In many quarters, the debate over immigration reform boils down to a tug-of-war between those who want more enforcement and those who want legalization (a path to citizenship) for 11 million undocumented immigrants. But comprehensive reform requires addressing far more than these two issues. Most comprehensive proposals in that past several years would have increased border enforcement, instituted verification requirements for employers to ensure they are not hiring unauthorized workers, increased visas for high-skilled workers, and provided legalization for the undocumented immigrants here now. Over the years, narrower legalization proposals have focused on the DREAM Act for undocumented students, AgJobs for farmworkers, and a massive guest worker program that was promoted by President Bush. While I am opposed to enhanced employment verification requirements for employers because the effectiveness of employer sanctions is questionable, and I question the wisdom of a guest worker program given the exploitative circumstances under which those workers would have to operate, I understand why negotiators would want those issues on the table. 

However, for many immigrants, their relatives, and their supporters, comprehensive reform entails much more. Consider the family immigration categories. The waitlist for many relative categories, particularly for those from Mexico and the Philippines, can be 10 to 20 years. Providing extra immigrant visas to clear the backlogs would do much to alleviate the pressure for some individuals to enter in violation of immigration laws. In fact, coming up with a different formula for family immigration categories that would alleviate backlogs altogether would be an important innovation. 

The immigrant visa system itself is anachronistic. Those who advocate for more high-tech visas will attest to that fact. The country's outdated immigration policy is incapable of dealing with 21st century immigration patterns and economic realities. No doubt current family immigration and employment categories can be better honed to meet the types of demands of U.S. individuals and employers. However, many families, employers, and individuals need greater flexibility today, given residence and travel needs. That means that flexibility in terms of visa entries and residence requirements should be built into our current system to accommodate those needs. Movement circularity for visa holders is a feature that may accommodate working-class as well as wealthy individuals. 

Our immigration enforcement regime is due for legislative reassessment as well. In the past few years, overzealous enforcement programs such as the Immigration and Customs Enforcement Secure Communities program that has swept up victims of crimes, minor offenders, and even crime witnesses have received some attention. Similar concern has been raised by the racial profiling of Muslims, Arabs, and South Asians under the U.S. Patriot Act. However, little attention has been paid to the fact that ever since 1996, lawful immigrants and refugees who have committed an "aggravated felony" are deported without a chance to introduce evidence of rehabilitation, remorse, or hardship to citizen relatives. Part of the tragedy of these laws is that the term aggravated felony includes selling $10 worth of marijuana, "smuggling" a kid sister across the border, and even some crimes like theft, burglary, perjury, and obstruction of justice that a state court has classified as a misdemeanor. There's a problem when spouses of citizens and parents of citizen children are deported as "aggravated felons" without giving an immigration judge the opportunity to decide whether the deportee deserves a second chance. 

Immigration reform should include innovative thinking as well. 

Given the demographic changes that have been brought about by immigrant and refugee resettlement across the country, why not promote civic engagement efforts that serve to welcome newcomers? It makes sense to reach out to immigrants and refugees as soon as they arrive so that they, too, might understand the responsibilities of being an American. Although federal, state, and local governments should lead the way, just think of the amazing things that could be accomplished if other vital institutions were to follow the government's lead and become involved: schools, daycare centers, local businesses, chambers of commerce, churches, recreation clubs, neighborhood groups, senior groups, and youth groups; they would bring rich possibilities to the enterprise. 

The out-of-the box thinking on immigration reform may lead us to realize that the real solution to undocumented Mexican migration, for example, might be working more closely with our neighbor and consider making a greater effort to address Mexico's unemployment and economic needs. The point is that the binary analysis of immigration reform that is classically about greater enforcement versus legalization should only be a start. Cooler, more thoughtful heads can come up with more peaceful, meaningful ideas than militarizing the border. 

Comprehensive immigration reform is the opportunity to think innovatively and expansively about the real needs of the country as well as the newcomers. 

This is written by Bill Ong Hing, founder and general counsel of the Immigrant Legal Resource Center and a Professor of Law at the University of San Francisco.