#ImmigrationWatch2017 | Topic #5: Asylum | Will Changes to Asylum Guidelines Make Seeking Asylum in U.S. Harder?

#ImmigrationWatch2017

President Trump’s pledge to build a wall at the U.S./ Mexico border is not the only action his administration is planning to stem the tide of illegal immigration from Mexico. President Trump is also tightening up the guidelines related to seeking asylum at the border. Last month, USCIS released a new lesson plan to Asylum Officers regarding the changes.

How does a person who is caught trying to cross the border apply for asylum?

When a person attempts to cross into the U.S. from Mexico illegally and is are caught, before he or she is quickly deported (known as “expedited removal”), the Immigration and Nationality Act (INA) requires that the officer ask the individual if he or she is afraid of returning home. If the individual responds in the affirmative, the officer is then required to conduct a “credible fear” interview. At the conclusion of the interview, if the asylum officer determines that there is a significant possibility that the individual can establish eligibility for asylum, then that person is entitled to apply for asylum and remain in the Untied States until a decision is made on the merits of the asylum application.

What is the purpose of the credible fear interview?

As explained by the Department of Justice (DOJ) when issuing regulations adding Convention Against Torture screening to the credible fear process, the process attempts to “to quickly identify potentially meritorious claims to protection and to resolve frivolous ones with dispatch …. If an alien passes this threshold-screening standard, his or her claim for protection … will be further examined by an immigration judge in the context of removal proceedings under section 240 of the Act. The screening mechanism also allows for the expeditious review by an immigration judge of a negative screening determination and the quick removal of an alien with no credible claim to protection.”

Basically, the credible fear process is a safeguard created by Congress to ensure that bona fide asylum seekers are not summarily deported under the expedited removal process and are allowed to file asylum applications and go through the regular full adjudication process.

How does a person prove that they have a credible fear?

Significant possibility that:

1. Applicant can establish eligibility for asylum, AND;

2. Applicant is credible

–> in light of other relevant factors like country conditions.

Credible fear interviews are conducted within a few days of an individual’s apprehension by immigration officials and although you can have an attorney present at the interview, you do not have a right to have an attorney present, and since the applicant is detained during this time, applicants rarely are able to obtain counsel in time for the interview.

As such, credible fear determinations are generally made solely based on the testimony of the individual being interviewed. Credibility is a leading factor in making this determination, although any other evidence that the individual presents to the officer must be taken into consideration. According to the INA, an applicant can establish credible fear based on testimony alone if the testimony is “credible, persuasive and refers to specific facts.”

Asylum officers are also required to take into consideration relevant country conditions of the applicant’s country of nationality/citizenship.

If you do prove that you have a credible fear and are allowed to apply for asylum, you will be required to submit evidence to corroborate your claim and produce witnesses at trial (if applicable).

What happens to the asylum applicant while he or she waits for the asylum application to be decided?

While awaiting a decision on the asylum application, the applicant can be detained or released into the country on parole, with or without conditions on parole. Currently, there is a massive backlog causing a increasingly long waits for asylum interviews (current backlog can be over 3 years in certain parts of the country). In order to address the fact that it was just too much money to detain all asylum seekers caught at the border, the Obama Administration adopted a policy to parole asylum applicants who passed their credible fear interviews into the United States while they wait for their case to be adjudicated.

This is known as the “catch and release” program and has been widely criticized for encouraging system abuse and more illegal immigration. The “catch and release” program allows Immigration and Customs Enforcement (ICE) to use their discretion to parole applicants into the United States to wait for their court hearing. After 6 months, the applicant can apply for a work permit (now valid for 2 years at a time) and renew the work permit during their waiting period.

How is the system abused?

Asylum Officers who conduct credible fear interviews have a very tough job. They are the gatekeepers to the asylum process. They determine if an individual should be immediately removed from the country, or if the illegal immigrant has a legitimate fear of returning home and can thus remain temporarily in the United States while his or her case is decided. Turning away an individual with a legitimate fear can mean sending a person back to serious harm, even death. As a result, in 2016, 73,000 people (80% of those given credible fear interviews) were determined to have a credible fear and thus were allowed to remain in the United States to have their asylum claims fully adjudicated by an Immigration Judge.

Due to the fact that it can take years before an asylum applicant finally has a full hearing in Immigration Judge due to the ever-increasing backlog in the courts (The 3-year wait for an interview with the asylum officer is independent of the current backlog in the immigration courts.), more and more asylum seekers are being parole into the United States.

Ultimately, a lower number of applicants who pass the credible fear threshold are actually granted asylum, thereby allowing certain applicants to remain in the United States for an extended period of time based on non-meritorious claim. which in turn has caused the tremendous backlog that we are currently experiencing.

Abuse also takes place when applicants who are paroled into the country do not show up for court or commit criminal offenses. Some of this abuse is countered with conditions on parole such as release on bond, use of ankle bracelets and requirements to appear for Order of Supervision appointments every few weeks, months or years.

But how many asylum seekers who pass the credible fear interview are actually given parole?

According to the Harvard Immigration & Refugee Clinical Program, 47% of asylum seekers were given parole in 2015.

What changes have been made?

Here are the changes that are likely to have biggest impact:

1. End to “Catch & Release” – Parole will be used much more sparingly, meaning more people will stay behind bars while they wait for their turn before the immigration court.

– It is important to note that ICE detention facilities are already overcrowded, an important factor in the decision to start the “catch and release” program. Although President Trump’s Executive Order calls to build more detention facilities to accommodate the number of individuals detained under the new guidelines, without more funds from Congress, ICE will not have the funding to comply.

– There also needs to be more Asylum Officers and Immigration Judges hired in order to deal with the caseload. Increased funding will also be needed to cover additional salaries, but even with the funding, it can be very difficult to fill these positions due to the strict requirements applicants must meet.

– For example, as of December 31, 2016, out of the 374 Immigration Judge positions allocated by Congress, 78 of the positions were vacant. It takes approximately 3 years to hire an Immigration Judge due to the extensive background check and clearances that a potential Judge must go through.

2. Expands the category of persons who can be considered for expedited removal – Expands who ICE will target for expedited removal to include anyone who is:

in U.S. without being admitted or paroled, AND;
has not been continuously present in U.S. for past 2-years (i.e., you entered country at least 2 years ago and have not left since)

I will post a blog about expedited removal in the future. Expanding this category will increase the number of persons subject to expedite removal and not given the ability to explore all avenues of relief from removal.

3. Higher standards of proof for credible fear determinations – Previously, an applicant only needed to show a “significant possibility” that he or she could establish eligibility for asylum before the Immigration Judge. The new guidelines require an applicant to show “a substantial and realistic possibility of succeeding,” but less than a preponderance of the evidence of successes. The interpretation of “significant possibility” is much more strict than the previous administration. Applicants are likely to have a much tougher time meeting the lower credible fear standard.

What should you do if you or a loved one is picked up by ICE?

Call an experienced immigration attorney immediately if you or a loved one is picked up by ICE. We will do everything that we can to get you bonded out and start on any applications for relief that are available to you!

*Do you have questions about Asylum or Immigration Detention? Contact an experienced immigration attorney at The Shapiro Law Firm, LLC, to find out if we can help.*

Who Did President Trump 212(f) Today? | UPDATE: New Travel Ban Executive Order Signed – What you need to know

Who Did President Trump 212(f) Today?

What you need to know about the new “Travel Ban” Executive Order (EO)

Yesterday, President Trump signed the long awaited revision of his executive order titled, “Protecting the Nation From Foreign Terrorist Entry Into The United States,” or as it is more commonly known, the “travel ban.” President Trump has marketed this EO as the answer to the federal courts who suspended the travel ban over a variety of concerns, most notably due to concerns over the constitutionality of the EO as it relates to due process and freedom of religion. So what changes have been made and is this new EO now constitutional? I break down the new EO for you.

What is new?

Provides some justification for putting a country on the 212(f) list. The EO now provides a brief explanation as to why each country has been placed on the travel ban list, generally citing that each country is either a “state sponsor of terrorism, has been significantly compromised by terrorist organizations or contains active combat zones.” The EO reasons that these conditions create an “unacceptably high” risk that the U.S. may permit entry to a foreign national from one of these countries who may intend to commit terrorist attacks inside the U.S. or otherwise harm the national security of the U.S.

The 7 country ban is now a 6 country ban. Iraq has been removed from the 212(f) list. The EO states that “Iraq presents a special case,” and goes on to justify the removal of Iraq from the list of banned countries by stating that since the first EO was signed on Jan 25, the Iraqi government has taken steps to “enhance travel documentation, information sharing, and the return of Iraqi nationals subject to final orders of removal.” The EO further states that Iraqi nationals will still be subject to additional scrutiny to ensure that they are not connected to terrorists.

Outlines who the EO applies to and does not immediately take effect. In an attempt to avoid the chaos and confusion accompanying the first EO, this EO states who the travel ban actually effects. This EO does not apply to nationals of these 6 countries who have/are a:

Valid visa issued on or before March 6, 2017;
Lawful Permanent Resident;
Valid travel document (such as advance parole) permitting entry into the U.S.;
Valid Diplomat Visa;
Previously-admitted refugee or asylee;
Dual national of 1 of the 6 countries and are traveling with a passport issued by a non-designated country, and;
A valid nonimmigrant or immigrant visa issued before the date of this order.

Removes preference to refugee-seekers of “minority religions.” There is no mention of any preference that will be given to refugee-seekers on any basis.

Syrian Refugees no longer face indefinite ban. Syrian national refugees now face the same 120-day ban on refugee admission as the rest of the world.

Is the travel ban now Constitutional?

The tailored version of President Trump’s travel ban does appear, on its’ face, to have a better chance at surviving legal challenge. This is due to the fact that the preference for minority-religion asylum seekers is removed and by providing some rationale behind why countries have been placed on this list to begin with. These changes certainly give the White House a leg to stand on in response to legal challenges. But it is important to keep in mind that ultimately this EO looks a lot like the first one, and the President has made it clear that the changes are in response to the federal courts’ concerns. There is thus still a plausible argument that the same intent is behind this EO, which is simply tweaked to appease the courts. Regardless of what the EO says on its’ face, if the courts find that the intent to discriminate on the basis of religion still exists, the EO will not survive a court challenge.

There is a good chance we will hear from the courts soon on this issue, as many immigrant rights groups have already expressed dismay over the new EO and have vowed to undertake swift legal actions against.

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USCIS News Release: Employment Authorization Document (EAD) Validity Extended for TPS El Salvador Beneficiaries

Breaking News Release from USCIS

Employment Authorization Document (EAD) Validity Extended for TPS El Salvador Beneficiaries

Release Date: March 6, 2017

What you need to know:

On July 8, 2016, DHS extended the Temporary Protected Status (TPS) designation for El Salvador for 18 months. As a result, DHS automatically extended EADs issued to El Salvadorians based on TPS until March 9, 2017.
USCIS is now automatically extending these EADs for an additional 6 months, through September 9, 2017.

Click here for the full press release, including who is eligible to file for TPS and the filing period, from USCIS.

**If you have questions about your eligibility for TPS and/ or are looking to file, contact an experienced immigration attorney at The Shapiro Law Firm, LLC, today.**

USCIS News Release: USCIS Will Temporarily Suspend Premium Processing for All H-1B Petitions

USCIS Will Temporarily Suspend Premium Processing for All H-1B Petitions

USCIS News Release

**Important information for anyone who was planning to file for H1-B with Premium Processing this H-1B Season:**

Starting April 3, 2017, USCIS will be temporarily suspending premium processing for H-1B applications.

USCIS begins accepting FY 2018 H1-B applications on April 3, 2017. Thus, the suspension will apply to all petitions filed for the FY18 H-1B regular cap and master’s advanced degree cap exemption (the “master’s cap”). The suspension also applies to petitions that may be cap-exempt.

What is Premium Processing?

Premium Processing is an option available for certain USCIS applications that, for a fee, guarantees either a decision or a request for evidence within 15 calendar days. Regular Processing, varies depending on the visa classification, but takes considerably longer to adjudicate the application. H-1B filers can wait up to 6 months for a decision using regular processing.

Are there any exceptions?

USCIS will consider expediting petitions on a case-by-case basis. The petitioner must prove that he or she meets one of the following eligibility criteria:

Severe financial loss to company or person;
Emergency situation;Humanitarian reasons;
Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States;
Department of Defense or national interest situation (These particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government.);
USCIS error; or
Compelling interest of USCIS.

For the full news release, click here.

Interested in filing for a H-1B petition? Want to find out if you are eligible for a H-1B Visa or another type of work visa? Click here to contact an experienced immigration attorney at The Shapiro Law Firm, LLC today.

#PositivelyImmigration | British Actor Sir Patrick Stewart is applying to be a U.S. Citizen so he can "fight" (aka vote)

#PositivelyImmigration

Need another reason to apply for your citizenship? Sir Patrick Stewart eloquently explains why he finally decided to make the leap from Permanent Resident to U.S. Citizen:

“I’m not a citizen. However, there is, maybe it’s the only good thing as the result of this election: I am now applying for citizenship because I want to be an American too, because all of my friends in Washington said, ‘There is one thing you can do. Fight, fight, oppose, oppose.’ But I can’t do it because I’m not a citizen.”

See more here.

Of course non-citizens can still indirectly participate in the political process by engaging in activities such as campaigning, marching and speaking about the issues. But only U.S. Citizens have the privilege to vote. So if you are a Permanent Resident and you are unhappy with the results of the 2016 election, apply for your citizenship today, so when 2020 rolls around you can be the first one in line to vote!

If you need help applying for your U.S. Citizenship, contact an experienced immigration attorney at The Shapiro Law Firm today.

**Attorney Advertising** Please be advised that that all information provided above is general in nature and does not create an attorney-client relationship.**Attorney Advertising**

Case Status Update: Asylum Clock Restarted – Work Permits Approved

Asylum Clock Restarted – Work Permits Approved: Yesterday we received two more work permit approvals for a husband and wife who are natives and citizens of Indonesia, (hereinafter Clients “X” and “Y”). X and Y have never had a work permit before despite applying for asylum 10 years ago because they did not know they were eligible to apply. When X and Y applied for asylum, less than 150 days elapsed before their case was referred to the immigration court by the asylum office. An asylum applicant must wait 150 days to after submitting an asylum application before applying for a work permit. If your case is denied or the clock is stopped, you are not eligible for a work permit.

There are many different reasons that the 150 day clock can be stopped. In X and Y’s case, their asylum application was denied by the Immigration Judge before they reached 150 days (*today, it can take 3+ years to have your interview with the asylum officer so applicants are reaching 150 days well in advance of a potential denial. But keep in mind that there are other reasons your clock can be stopped, like missing your biometrics appointment).

After the Immigration Judge denied the case and entered an order of removal/ deportation against X and Y, the couple appealed the decision to the Board of Immigration Appeals (BIA). X and Y won the appeal and their removal/ deportation was remanded back to the Immigration Court where it was eventually administratively closed.

X and Y came to our office after unsuccessfully applying for a work permit to see if there was anything that we could do to help them. Upon review of their file, we noticed that the time between the appeal to the BIA and the remand back to the Immigration Judge exceeded 150 days and the BIA has ruled that the asylum clock restarts upon a successful remand from the BIA and includes all the days that the case was on appeal awaiting a decision.

So, we wrote a letter to USCIS explaining that the system was not updated to reflect the correct amount of days on the clock and sent it with the application for employment authorization. In just 3 weeks, X and Y’s applications for employment authorization were granted!

**If you think that you are eligible for a work permit but you have not been able to obtain an approval, contact an experienced immigration attorney at The Shapiro Law Firm today to get started!**

(*please note that all identification information has been removed in order to protect our clients’ privacy and in order to fully comply with attorney advertising rules and regulations*)

What You Really Want to Know | Episode #10 | I am in USA illegally & married to USC or LPR- Can I get a Green Card & will I have to leave the country to get it?

Transcript: Hi, I’m Attorney Shaffer. Today on “What You Really Want to Know,” We answer the question, “I am in the U.S. illegally and I am married to a U.S. Citizen or Permanent Resident, can I get a Green Card and will I have to leave the country to get one?”

The answer is, it depends. “Illegal” or “Unlawful Presence” can mean a few different things. Not all unlawful presence is treated alike under the immigration law. So, to answer this question, we must look to the facts surrounding your unlawful presence. Specifically, we need to look at how you entered the country and there are 3 categories that people fall into:

The first category is a person who has been inspected and admitted to the United States using either a visa in your own name, a lawful Visa Waiver or you were paroled into the country. If you fall into this category then you will not have to leave the country to get a Green Card based on an approved Marriage Petition. In fact, you can file for your Green Card as if you were in lawful status.

The next category is someone who has been inspected and admitted to the United States using either fake documents or pretending to be someone else. If you fall into this category then you also will be able to apply for a marriage-based Green Card without leaving the country, however your are going to also need a Waiver of Inadmissibility based on fraud and misrepresentation.

And the last category, is a person who has not been inspected or admitted to the United States. If you fall into this category then you will have to leave the country in order to get a marriage-based Green Card and you will also need a waiver of inadmissibility. This is known as “Entry without Inspection” or “EWI,” and the most common type of EWI is a person who crosses the border without permission.

Although you do have to leave the country, the good news is, there was a law change a few years ago, you can now file this waiver before you leave the United States and you will not have to leave until you know the waiver is approved and your interview for your Green Card has been scheduled at the U.S. consulate or embassy abroad. This means you are only going to be out of the country for a few weeks.

In the past, you would have had to first leave the country, then file your waiver, then wait 6 months to upwards of a year for an approval before you would be scheduled for your interview to come back into the country. If your waiver was denied, then your stuck out of the country.

Of course, there are many more eligibility requirements that you must meet in order to get a Green Card and you cannot be subject to any grounds of inadmissibility. Figuring out if you are eligible for a Green Card and what steps you must take in order to get one is complicated. Contact an experienced immigration attorney before you begin to avoid headaches, delays and & denial!

That is all for this episode of, “What You Really Want to Know,” thanks for watching!

**Attorney Advertising** Please be advised that that all information provided above is general in nature and does not create an attorney-client relationship.**Attorney Advertising**

Case Status Update: Settlement in Child Support Enforcement Case Reached; Work Permit Approval for Asylum Applicant

Settlement Reached in Child Support Enforcement Case: Last week after intense negotiations, Attorney Shaffer was able to reach a settlement agreement in a child support enforcement proceeding. Our Client, (hereinafter “X”), was sued by his ex-wife for allegedly failing to pay childcare and add-on expenses pursuant to the couple’s Divorce Decree. There were two main issues that were being contested:

(1) The percentage of childcare X should be responsible for, and;

(2) If the add-on expenses (namely, summer camp and extracurricular activities) that X’s ex-wife was seeking reimbursement for was reasonable, as she did not first seek X’s consent as was required under the agreement.

After going back and forth for hours with Petitioner’s attorney, Attorney Shaffer was able to cut the amount of arrears X owed in half by arguing that Petitioner was asking for more than she should be for the childcare (as she had a child with her new husband who was also using the nanny and her child was not yet school age) and that her failure to seek X’s consent for the add-on expenses was a violation of the Divorce Decree. Furthermore, by proving that there was a reasonable disagreement regarding the amount of arrears owed, X was not found in default of the divorce decree and thus X was not required to pay Petitioner’s attorney fees.

Work Permit Approved for Asylum Applicant: We also received a work permit approval for a client who is a native and citizen of Mali. (hereinafter, “Y”). Y received his work permit based on his status as an asylum applicant. Y is currently in Removal/ Deportation Proceedings and will go before the Immigration Judge for his first hearing in November.

Form I-797, Notice of Action - I-765 Approval Notice

**If you need help with your immigration filings, contact an experienced immigration attorney at The Shapiro Law Firm today to get started!**

(*please note that all identification information has been removed in order to protect our clients’ privacy and in order to fully comply with attorney advertising rules and regulations*)

What You Really Want to Know | Episode #9 | Why is my Immigration Application Taking So Long?

Transcript: Hi, I am Attorney Shaffer, today on “What You Really Want to Know,” we answer the question, “Why is my immigration application taking so long?”

This is a question that we get asked every single day! The answer is, USCIS has a lot of applications to process! That being said, this is not what clients want to hear.

So what can we do?

Well, if you go to USCIS.gov and on the home screen click on “check your case status.” Then, you should have received in the mail a receipt notice that looks something like this:

Form I-797C, I-130 Receipt Notice

This is called the Form I-797C and on the receipt notice, somewhere in this upper portion should be a receipt # and it is going to start with 3 different letters followed by a bunch of numbers, so in this case it is MSC- and then a bunch of #s.

You are going to take that number and you are going to type it into the screen and click enter, when you click enter what you should get is the most recent update regarding the processing status of your application. The information presented on the screen should represent where in the process your application is. If there is anything surprising on the return screen, like it says something was denied or they sent a notice out that you never got, then I highly recommend that you immediately call an experienced immigration attorney.

As long as everything looks good, you just have to wait and be patient. If your application has been pending for longer than the normal processing time, which varies by application, then either yourself or your attorney can submit an inquiry to USCIS to check on the status.

When it has been a REALLY long time, like double the time of the normal processing time, we will often schedule clients for an Infopass appointment so that they can meet face-to-face with an immigration officer to find out what is going on with their application and what, if anything, we can do to speed up the process.

If you feel that your application has been taking too long or you find a surprise on your case status return screen, give us a call today and we will get to the bottom of it today!

That is all for this episode of, “What You Really Want to Know,” thanks for watching!

**Attorney Advertising** Please be advised that that all information provided above is general in nature and does not create an attorney-client relationship.**Attorney Advertising**

Case Status Update: Marriage-based Green Card Approved; Work Permit & Travel Document for Adjustment Applicant Approved; Work Permit Approvals for Asylum Applicants

Marriage-Based Green Card Approved: Today Attorney Shaffer attended a marriage interview at USCIS with a client. (hereinafter, “X”), who is a native and citizen of the United Kingdom, and his U.S. Citizen wife. X entered the United States on an L-1 Visa and met his wife at work. They got married a little over a year ago and X’s wife filed a marriage petition on his behalf. X concurrently file his Green Card application. After a short interview with USCIS, the Immigration Officer informed X and his wife that the petition and application is approved! This means that X is no officially a Conditional Green Card holder! X and his wife live together with their dog in Manhattan.

Because X and his wife have been married for less than 2 years, X will have to file to Remove Conditions on his Permanent Residency to get his Permanent Resident Card (10-Year Green Card) 3 months before the 2 year anniversary of receiving his Green Card.

Work Permit & Travel Document Approved: Today we received approval notices for a work permit and travel document for our client who is a native and citizen of Mali, (hereinafter “Y”). Y received his EAD and travel document as an adjustment applicant. Y’s Green Card application is based on the marriage petition filed by his USC Wife. While Y waits for the approval notice, he can work legally in the United States with the Work Permit and leave and re-enter the country with the travel document as if he was a Green Card holder. Y and his wife should be scheduled for a Marriage Interview shortly.

Form I-797C, Notice of Action - I-131 Approval Notice

Form I-797C, Notice of Action - I-765 Approval Notice

Work Permit Approved for Asylum Applicant: We also received a work permit approval for two clients who are husband and wife and are natives and citizens of Nigeria, (hereinafter, “Z” & “A”). Z and A are both Asylum Applicants. Z, A and their son are awaiting their interview wit the Asylum Office.

Form I-797, Notice of Action - I-765 Approval Notice

**If you need help with your immigration filings, contact an experienced immigration attorney at The Shapiro Law Firm today to get started!**

(*please note that all identification information has been removed in order to protect our clients’ privacy and in order to fully comply with attorney advertising rules and regulations*)