IMMIGRATION NEWS Comprehensive Immigration Reform (CIR) did not pass this year. CIR would have allowed 12 to13 million undocumented persons to “legalize” their status. CIR would also have provided for “Guest Worker” visas, visas for Agricultural workers and visas for students and other young persons by the law referred to as the “Dream Act”. Because CIR did not pass into law this year, it probably won’t be until 2009 that the US Congress again considers CIR when we have a new US President. Congress attempted to pass parts of CIR in “piecemeal” (separate) legislation during September/October of 2007, like the Dream Act, but it also did not pass. CIR will not provide “amnesty” like the 1986 law that granted green cards to persons who could show that they had arrived in the US before a certain date. When the CIR law is passed to legalize the 12 to 13 million undocumented aliens presently in the US, they will not receive their green cards automatically by registering. Those who qualify will first be given a “temporary legal status”, which will allow them to stay legally in the US, work, get their Social Security numbers, drivers licenses, and even travel outside the US. But they won’t be given their green cards simply by registering. To get their green cards, conditions will have to be met over the next 6 years (?), like continued employment, filing and paying income tax if owed, no serious criminal record, and a working knowledge of the English language. NO CIR or individual laws have been passed to legalize undocumented aliens. There is no Amnesty and there are no benefits you can apply for UNLESS you are in deportation/removal proceedings. 10 year Cancellation of Deportation/Removal. If you are detained by immigration, DEMAND to have your case heard by an immigration judge. You have nothing to lose by going to court. You can always apply for voluntary deportation. Only by going to court can you apply for Cancellation of Deportation/Removal, if you have been in the US for 10 years or longer, have children born in the US, and don’t have any serious criminal record. You can apply to the judge for “Cancellation of Removal” and your green cards for “Certain Non permanent Residents”, but only if you are in court. The same proof/documentation you will need to qualify for “Legalization” pursuit to CIR, when passed, you will need to qualify for the 10 year cancellation of Deportation/removal? Section 245i. Many of you have heard and qualify for the benefits of section 245i. If a family member or an Employer filed immigration papers for you on or before April 30, 2001 you are qualified for the benefits of section 245i. The filing date is your “priority date”. Once qualified you will always keep the rights to 245i. If your legal spouse qualified in 2001 for the benefits of section 245i, you also qualified. You will keep those rights even if you are later divorced or widowed. The rights are “transferable” between different immigration categories. Assume you qualified for 245i because your brother or sister became a US Citizen and filed an immigrant petition for you by filing before April 30, 2001. Aliens whose US citizen brothers and sisters filed in 1994 are now immigrating, about a 13 year wait. If today you find another way to immigrate, like by marrying a green card holder, or by a job offer through labor certification, you can “transfer” the 2001 245i “priority date” to your present immigration petition, and in some cases be current for an immigration visa today. Being “current” for an immigrant visa and being eligible for 245i, would mean that you can file papers to receive your green card while remaining in the US, and receive work papers/authorization. Immigrating through employment, your job. Many people can immigrate through their jobs through the labor certification process. Basically that involves processing through the Department of Labor (DOL) and showing that there is not a qualified US worker to do the job. This involves amongst other requirements that newspaper advertisements be run offering the job to the general public. If offering the job to the general public does not produce any “qualified US workers” (qualified US Workers means US Citizens or green card holders), then the DOL will certify you to do the job and you can get immigrated. Many types of jobs can be and are certified, you don't need a bachelors degree to get certified, e.g. master butcher, Mexican pastry baker, Mexican or Thai (specialty) food cook, landscaper, machine operator, etc, etc. After you have been certified through the DOL to do the job, the US employer files to immigrate you through the immigration department (USCIS). The problem arises when it is time for the alien to immigrate, get their green card. There is a 3-10 year bar to returning to the US if a person has been in the US illegally or worked in the US illegally. If a person has 6 months to one year of illegal presence or work in the US, he or she is barred from returning for 3 years. If one year or more of illegal presence or work in the US, he or she is barred from returning for 10 years. This 3 or 10-year bar to returning to the US only applies when the alien leaves the US to go to the US Consulate (in their home country) to get an immigrant visa, (or just leaves the country). The 3 or 10-year bar does not apply when the person remains in the US to get their Green Card. Remaining in the US to get their green card is called “ADJUSTMENT OF STATUS” (form I-485). Unfortunately most persons who entered the US without inspection (with coyotes) or overstay a legal visit do not qualify for adjustment of status. So, they could go through the labor certification process through the DOL and get certified. The US employer could petition them to immigrate through the USCIS. All that is possible. The person is even given an appointment at a US Consulate to undergo an interview for their green card. All goes well and the person qualifies to get their green card. It is only then that they are told that the 3 or 10-year bar to returning applies to them. They can immigrate by the job certified by the DOL, but they cannot return to the US to do that job until the end of the 3 or 10-year bar. You can apply for a waiver of this 3 to 10-year bar, but there is no guarantee that you will get it and you can only apply at a US Consulate once you have first qualified to immigrate. Anyone facing the 3 or 10-year bar is best advised to wait for passage of CIR. If the person qualifies for the benefits of 245i, they are permitted to get their green card in the US, adjust status (I- 485). That is the major benefit of qualifying for the benefits of section 245i. Remember that the alien immigrating does not have to be the person that originally qualified for the benefits of 245i. One example would be an alien whose parent qualified for 245i in April 2001. In 2007 the parent immigrates but the child does not because they have already turned 21 and no longer qualify to immigrate with the parent, (aged out). That child qualified for the benefits of section 245i when the parent qualified for 245i. That child keeps the benefits of section 245i forever, even though they are too old to immigrate with their parent. If the child finds a means to independently immigrate, they can use the benefits of 245i to Adjust their Status in the US and not be subject to the 3-10 year bar. Assume that the child married a Mexican food cook who did not qualify for 245i in 2001. If a labor certification is applied for the cook, he could Adjust his Status in the US when an immigrant visa was available, because he married a person qualified for the benefits of 245i, and thus is himself qualified for the benefits of 245i. Both would Adjust Status. Although CIR was not passed this year, it will be passed soon. In the mean time you can take steps to protect your rights, like demanding to have your case heard by an immigration judge if you are detained. If you, your parent or your spouse or ex-spouse ever qualified for section 245i, you may still be qualified or another immigration category might make you eligible for a green card today. Benefits of 245i. Many persons have qualified for the benefits of section 245i by having a labor certification application filed on or before April 30, 2001, or by someone filing a family petition filed for them with the immigration department on or before that date. Those of you who benefit from section 245i can prove this by an ACKNOWLEDGEMENT LETTER received from the Department of Labor (DOL) with a processing or priority date of April 30, 2001 or earlier, or a “Notice of Action” letter (Form I-797) from the immigration department with a received or priority date of April 30, 2001 or earlier. If you think someone in your family filed a family petition by April 30, 2001 ask them for a copy of the 797 Form. If an employer, their agent or attorney filed with the labor certification application for you as the worker, ask them about giving you a copy of the ACKNOWLEDGEMENT LETTER. Many of you paid money as down payments to start the labor certification process through your employer (employer at that time) or through an attorney, but did no more. It does not matter that the labor certification procedures were not completed or that a labor certification was not approved or issued. It only matters that the labor certification process was started at the DOL by April 30, 2001. If you paid someone to start the labor certification procedures, then they should have mailed in the forms to the DOL and received the ACKNOWLEDGEMENT LETTER for you. The I-797 Form from the Immigration Service or the Acknowledgement Letter from the DOL are “your” valuable documents. They are your evidence that you are qualified for the benefits of section 245i. If you were married at the time, or later married, but before immigrating, then your spouse will also qualify for the benefits of section 245i, with or without you. What is the major benefit of section 245i? If qualified you can remain in the US and get your green card when there is an immigrant visa available to you. Section 245i does not itself qualify you for an immigrant visa. You must qualify for an immigrant visa by some other way, like through a family member or a job. If qualified you will not have to go to your home country for your green card and be subject to the 3/10 year rule that prevents aliens from returning to the US if they have stayed or worked illegally in the US. This 3/10 year BAR only applies to persons who depart the US after having been in the US illegally. It is good if you don’t have to depart the US to get your green card. Section 245i permits you to remain in the US to get your green card. There is a difference if you are removed/deported from the US, and if you leave the US because you chose to go home at your own decisión, and how your rights to section 245i are effected. The court (9th Circuit) has ruled that there is a difference WHY YOU LEFT the US after your illegal stay and how it effects your rights under section 245i. If you are removed or deported by the immigration court, your rights to the benefits of section 245i will be negatively effected. If you leave because you had to go home voluntarily and are stopped by the immigration authorities coming back, BUT at a later time manage to return to the US, you won’t lose the right to Adjust Your Status according to 245i, if you reside in the 9th Circuit. If you live in California you reside in the 9th Circuit. I-601 waiver of 3-10 year BAR New program in Cd. Juarez Chihuahua permits you to apply for waiver of 3-10 year Bar. If you are married to an American (USC) Citizen or green card holder (LPR) but don’t qualify for the benefits of 245i, or because you entered the US without inspection and can’t get your green card in the US, A NEW PROGRAM lets you apply for a I-601 waiver of the 3-10 year bar at Cd. Juarez, and receive the waiver and return to the US within days of applying. BUT, whether you were removed/deported or left voluntarily AFTER ONE YEAR of unlawful presence in the US, and are detained coming back to the US, you will be permanently barred from returning, and there is no waiver you can apply for such as the I-601 waiver. So, if you qualified for the benefits of section 245i and are in the US waiting for a green card, DON’T LEAVE until after you get your green card or permission to leave. If you are detained by the police or the immigration authorities, DEMAND YOUR RIGHTS. Demand to have your case heard by an immigration judge. Do not agree to any form of voluntary deportation. The Mexican Consulate in Los Angeles, and the Consulates for several other Latin American countries have encouraged undocumented aliens to make plans, in advance, in the event they are deported from the country. The Mexican consulate is distributing wallet sized cards that tell people what to do if they are arrested and reminds you of what your rights and responsibilities are under the U.S laws. These are “Know Your Rights” cards. http://www.ocregister.com/ocregister/homepage/abox/article_1928756.php Plan ahead to be sure your family will be taken care of in the event you are stopped by the immigration authorities. Authorize someone (in writing) to pick up your kids from school if you or your spouse can’t. Leave copies of important documents with trusted relatives who are themselves in the country legally, and carry your prescription drugs with you. There are many things you can do to prepare in case you are detained, and/or deported. You can open a file with Mr. Mosqueda for as little as $50 or $100, or whatever you can afford. The purpose is to build your file in anticipation of when Comprehensive Immigration Reform (CIR) is passed. You can start to get those documents (proofs) together that you will need to qualify for CIR. For those of you who have been in the US for 10 years or more, those same proofs you would need to apply for 10 year Cancellation of Deportation or Removal. Hopefully you won’t be detained by the immigration authorities before CIR is passed. Any money you use to open your immigration file with Mr. Mosqueda will be applied towards getting your Temporary Immigration Status authorized under the future CIR. Your consultation with Mr. Mosqueda is without cost. You can open a file with Mr. Mosqueda for as little as $50 or $100, or whatever you can afford. Thereafter if you have a question about your immigration case, you can consult with Mr. Mosqueda at no extra cost to you. People should expect increased immigration raids and arrests. It is expected that “Enforcement” will be the number one thing that will happen in immigration before we see a CIR bill. As of December 5, 2007 the Department of Homeland Security (DHS) has appealed the “”No Match” letter court decision. This “Temporary” court decision prevents the Social Security Administration (SSA) from sending out these no match letters to employers when their employee’s name does not match their social security numbers. If the court decides that it is legal for the SSA to send out these letters to employers, people who have been using others or fake social security numbers can lose their jobs. My opinion is that these “no match letters” will be found legal and allowed. Being in the USA gives you rights. “Know Your Rights”. Use them to protect yourself. |
If you are in the US without lawful immigration documentation, this information applies to you. Read about what is happening about Comprehensive Immigration Reform (CIR)! How Section 2451 benefits you! And what you should do until CIR IS PASSED. |
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