Tuesday, June 19, 2012

Temporary Relief From Removal for Certain Young People

Secretary of Homeland Security Janet Napolitano announced on June 15 2012 that effective immediately, certain young people who were brought to the United States as young children, do not present a risk to national security or public safety, and meet several key criteria will be considered for relief from removal from the country or from entering into removal proceedings. Those who demonstrate that they meet the criteria will be eligible to receive deferred action for a period of two years, subject to renewal, and will be eligible to apply for work authorization.
Under this directive, individuals who demonstrate that they meet the following criteria will be eligible for an exercise of discretion, specifically deferred action, on a case by case basis:

1. Came to the United States under the age of sixteen;

2. Have continuously resided in the United States for a least five years preceding the date of this memorandum and are present in the United States on the date of this memorandum;

3. Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;

4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;

5. Are not above the age of thirty.

Only those individuals who can prove through verifiable documentation that they meet these criteria will be eligible for deferred action. Individuals will not be eligible if they are not currently in the United States and cannot prove that they have been physically present in the United States for a period of not less than 5 years immediately preceding today’s date. Deferred action requests are decided on a case-by-case basis. DHS cannot provide any assurance that all such requests will be granted. The use of prosecutorial discretion confers no substantive right, immigration status, or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.
Source: www.dhs.gov

Friday, March 30, 2012

Temporary Protected Status Designated for the Syrian Arab Republic

WASHINGTON— Due to the violent upheaval and deteriorating situation in the Syrian Arab Republic (Syria), U.S. Citizenship and Immigration Services (USCIS) announced today that eligible Syrian nationals (and persons without nationality who last habitually resided in Syria) in the United States may apply for Temporary Protected Status (TPS). Details and procedures for applying for TPS are provided in the Federal Register notice published today and are available at www.uscis.gov/tps.

On March 23, 2012, Secretary of Homeland Security Janet Napolitano announced her intent to designate Syria for TPS for eighteen months. The TPS designation for Syria is effective today and will remain in effect through September 30, 2013. The designation means that eligible Syrian nationals will not be removed from the United States, and may request employment authorization. The 180-day TPS registration period begins today and ends on September 25, 2012. Although the Federal Register notice erroneously states that TPS applications must be filed March 29, 2012 through September 30, 2013, USCIS will only accept applications filed through September 25, 2012. USCIS is working to correct the public information on the registration deadlilne date.

To be eligible for TPS, Syrians must meet all individual requirements for TPS, including demonstrating that they have continually resided and been continually physically present in the United States since March 29, 2012. All individuals who apply for TPS will undergo a thorough security check. Individuals with criminal records or who pose a threat to national security are not eligible for TPS and their applications will be denied.

Syria joins El Salvador, Haiti, Honduras, Nicaragua, Somalia, Sudan, and South Sudan as countries currently designated for TPS.

Source: USCIS -Notice released March 29, 2012

Monday, March 12, 2012

Grandfathering under 245i

A beneficiary of a visa petition or labor certification filed after January 14, 1998, must demonstrate that he or she was physically present in the United States on December 21, 2000.

In a recent case decided on March 8, 2012[1] it was solidified that for an alien to independently qualify for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006), as a derivative grandfathered alien, the principal beneficiary of the qualifying visa petition must satisfy the requirements for grandfathering, including the physical presence requirement of section 245(i)(1)(C) of the Act, if applicable.

Under the regulations relating to section 245(i), there are two categories of grandfathered aliens. The first category, principal grandfathered aliens, encompasses beneficiaries of visa petitions or labor certifications that were (1) filed on or before April 30, 2001; (2) properly filed; and (3) approvable when filed. 8 C.F.R. § 1245.10(a)(i); see also Matter of Legaspi, 25 I&N Dec. at 329. If the visa petition or labor certification was filed for the principal grandfathered alien after January 14, 1998, he or she must have been physically present in the United States on December 21, 2000. 8 C.F.R. § 1245.10(a)(ii).

The second category, derivative grandfathered aliens, encompasses spouses and children of principal grandfathered aliens, if eligible to receive a visa under section 203(d) of the Act. The derivatives do not need to establish physical presence even if the qualifying visa petition was filed after January 14, 1998, given that they may be following the principal grandfathered alien to join him or her in the United States. 8 C.F.R. § 1245.10(a)(ii). Derivative beneficiaries are only entitled to the status available to the principal alien under section 203(d) of the Act. See Matter of Naulu, 19 I&N Dec. 351, 353 (BIA 1986) (observing that “the right of a derivative beneficiary to permanent resident status is wholly dependent upon that of the principal alien”).


Matter of Svetislav ILIC, 25 I&N Dec. 717 (BIA 2012) Interim Decision #3743

Matter of Roderick

In a recent case of Matter of Roderick[1], it was observed that a criminal statute is divisible, regardless of its structure, if, based on the elements of the offense, some but not all violations of the statute give rise to grounds for removal or ineligibility for relief.

[1] 25 I&N Dec.721 (BIA 2012); case decided march 9, 2012