Musings on Immigration

Our Globally Recognized Team of Immigration Lawyers Sharing Knowledge and Providing Counsel on Immigration Issues that Affect You, Your Business and Your Family

DACA (Obama Deferred Action) Applications will be Available Today

In a press conference today, Director Mayorkas stated that the forms to be used in applying for DACA will be available on the USCIS website on Tuesday, August 14, 2012. The Form I-821D, along with the Form I-765 and the Form I-765WS will be required as part of the filing. The Form I-821D is the form to be used for actual deferred action status. The Form I-765 and Form I-765WS are the forms needed to applying for working permission and in showing the economic need to work. The Forms and supporting documentation will be accepted starting on Wednesay, August 15, 2012. There is NO deadline in filing. So, there is no rush to be the first to get a DACA Application in on the first day. It is best to take your time and make sure the forms are completed accurately and completely.

Some good news in today's application is that to qualify for the education requirements, being "currently enrolled" also includes an education, literacy, or vocational training schools, and education program leading to a GED!!! So, you do NOT need to have a GED to apply, you just need to be enrolled in a program leading to a GED.

The Application will be filed at the defined location! Great news. Call today to start the process for you to obtain DACA Status. We urge you to make sure that you speak to an attorney before filing anything under this program to ensure you are eligible and to be sure the application is prepared correctly.

TPS, Advance Parole and Adjustment of Status--The New Options.

In a recent case, the Board of Immigration Appeals opened up an entire new area for individuals who have until now found themselves ineligible to obtain permanent residence without leaving the United States, or going through a complicated and unpredictable waiver process.

In Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), the Board of Immigration ruled that an individual who came into the US illegally but who is now on an adjustment of status applicant, who obtains a travel documents (advance parole) through USCIS and then leaves the US and reenters on that Advance parole, is eligible to adjust status IN the US (with an available immigrant visa), and is NOT subject to the 10 year bar waiver typically associated with his departure after having been illegally in the US for longer than 1 year. This is an AMAZING development and unexpected good news for several hundred thousand people. TPS status holders are eligible for the same type of advance parole document.

What does this mean in practical terms? This is best understood by example:
  • Maria is a Honduran national (or any other current TPS holder) who came into the United States without a visa;
  • Subsequently, Maria becomes eligible for AND obtains TPS through the normal USCIS process;
  • Maria decides to travel to her home country either for family illness or because of long family separation. She files for and properly obtains from USCIS an "advance parole" or a travel document allowing her to leave and reenter the US to resume her TPS;
  • Maria leaves the US and timely returns on the Advance Parole;
  • Maria is married to a US Citizen, has a US Citizen child older than 21, or is the beneficiary of an immediately available immigrant visa through other family or through an employer (and has no unlawful employment--their are exceptions);
  • Maria can file an adjustment of status in the US without having to pay a fine, and without having to file for an unlawful presence waiver, because she now has both lawful status AND a lawful entry!
This is a huge change in the way the law functions. If you have TPS and are married to a US Citizen, or have a US Citizen child over the age of 21, you are now eligible for permanent residence without processing in your home country and without having to file a waiver! You simply need to obtain the advance parole, briefly travel, reenter, and then file for adjustment. A word of warning, immigration laws are complicated, and there are ALWAYS exceptions to a general rule. Criminal convictions will doom you. Consult and use an immigration attorney to assist BEFORE making your plans to ensure a successful conclusion to your case.

Do You Need an Attorney to Apply for Deferred Action for Childhood Arrivals (DACA)?

One of the most common questions asked since June 15th when President Obama announced Deferred Action for Childhood Arrivals (DACA) is, "Do I need an immigration attorney to help me apply?"  Many respected voices in the immigrant community are saying that the application process and form will be so simple that people won’t need an attorney to apply.  Others are saying that too little is known about the program and it is not yet time to consult with an attorney.  We disagree.

Before explaining why the help of a competent attorney is so important, we share the concern that many have had since DACA was announced.  We have learned from history the sad lesson that immigrants are vulnerable to being exploited and harmed by dishonest and self-serving individuals such as notarios, consultants, and even attorneys.  Unsuspecting immigrants are scammed out of their hard-earned money by those who do not follow through with their promises or, worse yet, who "help" them apply for benefits for which they do not qualify.  Not only have the financial losses been great, but so have the immigration consequences, many times resulting in a person being deported from the United States.  In other cases, many immigrants have also been harmed by those who mean well and who genuinely want to help, but who unfortunately are not aware of the legal complexities of such programs and lack the competence to help someone.  Unfortunately there are likely to be those in our community who once again view this new program as an opportunity to make a quick buck off a vulnerable population that is desperate to obtain legal status in the United States.  It is important for the immigrant community to be warned about these concerns and to be very cautious about how they proceed.  But this does not mean that immigrants do not need to seek competent legal advice about the program.

Although the U.S. Department of Homeland Security (DHS) released additional information and guidance about DACA on August 6th, the application form and specific instructions about the application process will not be released until August 15th, which is the first day that anyone may apply. Although it is possible that the forms will be fairly short, it is not the length of the form that creates the need for an attorney.  It is the need to understand the risks of applying and any alternatives available to a particular person, including the choice of documents being presented and how to present them.

You would not go into a police station and turn yourself in for a crime you committed, without first speaking with your attorney.  Similarly, you should not file for DACA without at least consulting with an experienced and competent immigration attorney.  Although it may be the best alternative for many young people, a competent attorney will be able to help you identify and consider the potential risks and issues of DACA before you "turn yourself in".

Here are some of the risks and issues with DACA that should be considered: 
  • What happens after the first two years?
  • What happens after the elections?
  • Will information in the applications be kept confidential?
  • Will unqualified family members (spouse, parents, siblings) be at risk based on information in the applications?
  • What if I'm not currently enrolled in school?
  • What is a significant misdemeanor?
  • Does my juvenile record hurt me?
  • Will I have permission to travel out of the country?
  • Will that travel trigger the three or ten year bars?
  • Will I qualify when I turn 15?
  • What about those who are in detention and who can't enroll in a GED program?
  • What about kids who are home-schooled?
  • Will there be an interview?
  • Will they try to deport me if the program goes away?

The risks are significant and these issues are complex.  They require the help of a competent attorney right now so you can make an informed choice about whether to apply.

DACA may not be the best choice for everyone.  Occasionally other alternatives may be available that have not been explored if you have never spoken to an attorney about your situation.

Some underestimate how challenging it can be to prove you are eligible.  What if you do not have the documentation that the government decides is acceptable?  If you don't have those documents, attorneys often can help you figure ways to get them or other alternatives.  An experienced immigration attorney can also help you choose which documents should be presented, so as to minimize risks to employers and family members who are not eligible for Deferred Action.

Finally, if you choose not to go to an attorney but instead go to a notario or immigration consultant, realize that these people are not easily regulated.  There are many good community-based organizations, especially those that are accredited by the Board of Immigration Appeals, that can provide competent and affordable assistance and who know when to call an attorney for help.

We have been hired too many times to clean up the mess after someone not authorized to practice law or someone who is not competent to help, even with the best of intentions, has done it wrong.  Those cases frustrate us because often we can't fix the damage that has been done, which is especially troubling when we know that we could have done it right the first time.

There are many good attorneys in United States who are capable and competent to help you.  We strongly suggest that you look for an attorney who is a member of the American Immigration Lawyers Association (AILA), who is experienced in advising clients about immigration matters, who will take the time that your case needs and deserves for you to understand not only the potential benefits of the program, but also the potential risks of applying, and who will answer all your questions and address all of your concerns.

In the end, the decision to consult with an attorney is very personal and one that only you can make.  Proceed with caution; ask lots of questions; and make sure you understand the risks and potential issues before you apply.  Remember that this could be one of the most important decisions you make for you and your family.

To schedule an appointment to discuss DACA and if it is the best option for you, with a qualified and experienced Kuck Immigration Partners attorney, please fill out the form located on our website at

Obama Deferred Action ("DACA") Details Released!

Today, August 3, 2012, USCIS announced that it would be providing the Form necessary, or the exact details of the "DACA" (yes, a terrible acronym for the Obama Deferred Action process) Plan until the day the application period begins, August 15, 2012. Nothing like allowing folks to prepare in Advance!!

Here is what we know from today:

U.S. Citizenship and Immigration Services (USCIS) is finalizing a process by which potentially eligible individuals may request consideration of deferred action for childhood arrivals.

xpects to make all forms, instructions, and additional information relevant to the deferred action for childhood arrivals process available on August 15, 2012. USCIS will then immediately begin accepting requests for consideration of deferred action for childhood arrivals.

Information shared during today’s call includes the following highlights:

Requestors – those in removal proceedings, those with final orders, and those who have never been in removal proceedings – will be able to affirmatively request consideration of deferred action for childhood arrivals with USCIS.

Requestors will use a form developed for this specific purpose.

Requestors will mail their deferred action request together with an application for an employment authorization document and all applicable fees to the USCIS lockbox.

All requestors must provide biometrics and undergo background checks.

Fee waivers cannot be requested for the application for employment authorization and biometric collection. However, fee exemptions will be available in limited circumstances.

The four USCIS Service Centers will review requests.

The Filing fee will be $465. Fee Exemptions are SEVERELY limited.

All information provided to USCIS through this process is PROTECTED from Release to ICE for purposes of further removal proceedings, unless the person is removable under current immigration law (presumably for criminal grounds). But, the information WILL be shared with other agencies for any necessary law enforcement purposes. Information about family members is also protected.

If your case does not involve a criminal offense, fraud, or a threat to national security or public safety, your case will not be referred to ICE for purposes of removal proceedings
except if DHS determines there are exceptional circumstances.

Advance Parole Travel Authorization will be available AFTER approval of the Deferred Action and where there are humanitarian grounds requiring the travel.

Additional information regarding the Secretary’s June 15 announcement will be made available on on August 15, 2012. It is important to note that this process is not yet in effect and individuals who believe they meet the guidelines of this new process should not request consideration of deferred action before August 15, 2012. Requests submitted before August 15, 2012 will be rejected.

Affidavits proving presence will be severely limited except as to proving GAPS in other evidence, and as applied to describing brief, casual and innocent departures from the US during the five year application period.

What is a Significant Misdemeanor Offense? The maximum term of imprisonment under Federal Law is more than 5 days and less than one year (regardless of sentence), domestic violence, drugs, violent crimes, or DUI. Or, any crime for which the person is sentenced to time in custody of more than 90 days. This is VERY restrictive!! But, the entire criminal history will be reviewed.

"Knowing" lies, or misrepresentations will be treated as an enforcement priority and will result in the person being put into deportation proceedings.

BIG Disclaimer: USCIS can change or rescind these rules at any time!

Call us today to determine whether or not you qualify for this program, and to begin the process to have your package ready to submit an application on August 15, 2012 after USCIS releases the forms necessary to complete this process.

The Obama Deferred Action Plan--NO Announcement today

To update all of our friends waiting anxiously for the promised announcement from the Obama Administration about how and when to submit applications under the deferred action program (called DACA by the Obama folks). It appears that there will be no announcement today. In the interim, watch our blog for the next announcement about the application process--as soon as we know what it is!