Law Offices of Antone & Casagrande, P.C.
Recent announcements by DHS regarding Parole in Place, DOMA and DACA.

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Recent announcements by DHS regarding Parole in Place, DOMA and DACA.

Parole in Place for Spouses, Children, and Parents of Veterans and Military Members

New Policy Memorandum from the Obama Administration Makes it Possible for Certain Relatives of Military Members and Veterans to Remain in the U.S. and Possibly Adjust Status

A policy memorandum was issued on November 15, 2013 by the Obama administration to allow spouses, children and parents of active duty or veteran members of the U.S. Armed Forces or the Selected Reserve of the Ready Reserve to remain in the U.S. and potentially “adjust status” to obtain Permanent Residence from within the United States. 

As of November 15, 2013, a spouse, child, or parent of a military member or veteran may be able to adjust status to Permanent Resident (i.e. get a “Green Card”), even if they entered without inspection. They can apply for what is called “parole in place,” which USCIS is now directed, as a matter of policy, to strongly consider granting on the basis of military family member relationships, in the absence of criminal convictions or other adverse factors. “Parole in place” effectively would replace their “entry without inspection” and overcome grounds of inadmissibility that would have previously applied and prevented them from remaining in the U.S. or from becoming Legal Permanent Residents while remaining in the U.S. While “parole in place” is not a new concept, this policy memo underscores that applications for it filed by military family should generally be considered favorably. The memo also clarifies that “parole in place” allows for adjusting status within the U.S.

Among other reasons for the policy, the memorandum stated that, “there is a concern within DoD [Department of Defense] that some active members of the U.S. Armed Services, individuals serving in the Selected Reserve of the Ready Reserve and individuals who have previously served in the U.S. Armed Forces or Selected Reserve of the Ready Reserve face stress and anxiety because of the immigration status of their family members in the United States. … Military preparedness can potentially be adversely affected if active members who can be quickly called into active duty, worry about the immigration status of their spouses, parents and children.”

Parole in place is granted on a case-by-case basis and is purely discretionary. If granted, whether parolees are eligible to adjust status without a waiver is a critical question that should be understood before filing for Permanent Residence. The help of a competent immigration attorney is strongly encouraged when applying for either parole or adjustment of status on this basis.

If you think you may be affected by this development, please call our office to schedule a consultation with one of our attorneys who will be happy to explain in more detail your options and how our law office can assist you in the process.

The policy memorandum by U.S. Citizenship and Immigration Services, released November 15, 2013, is available here:
http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2013/2013-1115_Parole_in_Place_Memo_.pdf

Note: Foreign nationals seeking lawful status in the U.S. are subject to all immigration laws, and even with a lawfully recognized qualifying family relationship, may be inadmissible or otherwise unable to obtain Permanent Residence in the U.S. on other grounds, such as certain criminal convictions or immigration violations. This is true of anyone seeking immigration benefits from the U.S. Government.

DOMA Unconstitutional Per US Supreme Court Decision

U.S. Supreme Court Decision to Rule DOMA as Unconstitutional Will Help Bi-national Same-Sex Couples in the United States.

The decision on June 26, 2013, issued by the United States Supreme Court in United States v. Windsor, holding that Section 3 of the Defense of Marriage Act is unconstitutional, will benefit same-sex married couples in which one spouse is not either a U.S. Citizen or Lawful Permanent Resident. The Defensive of Marriage Act (DOMA) is a federal law that limits the recognition of marriage to only opposite-sex couples. Now that Section 3 of DOMA has been ruled unconstitutional by the U.S. Supreme Court, the federal government cannot exclude same-sex couples from federal laws and programs, which include immigration laws.

As of June 26, 2013, following United States v. Windsor, U.S. federal immigration law allows a United States Citizen or Permanent Resident to legally sponsor his or her non-citizen spouse for Permanent Resident Status on the basis of marriage. Permanent Residence allows non-citizens to live and work in the United States indefinitely. Thus, the foreign national in a same-sex marriage can now obtain a “Green Card” as long as his or her marriage was legal where it took place. In the U.S., same-sex marriage is legal in California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington, and the District of Columbia.

The U.S. Department of Homeland Security (DHS) released a statement immediately following the Supreme Court’s decision. In this statement, Janet Napolitano, Secretary of DHS, applauds the Court for ruling DOMA unconstitutional, calling DOMA “discriminatory” towards same-sex couples; “Working with our federal partners, including the Department of Justice, we will implement today's decision so that all married couples will be treated equally and fairly in the administration of our immigration laws."

As this development is brand new, we anticipate questions yet to be answered. However, under current law, we are able to assist any bi-national same-sex married couple in pursuing and obtaining Lawful Permanent Residence for the foreign national spouse. We will be happy to take such cases and look forward to representing same-sex married couples in the future. In fact, U.S. Citizenship and Immigration Services (USCIS) have already granted Permanent Residence in a bi-national same-sex marriage case.

Please call our office to schedule a meeting with one of our attorneys who will be able to explain in more detail what your options may be and how our law office can assist you in the process.

For more information on the Supreme Court’s ruling in United States v. Windsor, read the Court’s opinion released June 26th, 2013: http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf.

Read the full statement by the Secretary of the Department of Homeland Security Janet Napolitano, released June 26th, 2013: http://www.dhs.gov/news/2013/06/26/statement-secretary-homeland-security-janet-napolitano-supreme-court-ruling-defense

Note: Foreign nationals seeking lawful status in the U.S. are subject to all immigration laws, and even with a lawfully recognized marriage, may be inadmissible or otherwise unable to obtain Permanent Residence in the U.S. on other grounds, such as certain criminal convictions or immigration violations. This is true of anyone seeking immigration benefits from the U.S. Government.

Deferred Action Announced for Dreamers

On June 15, 2012, the Department of Homeland Security Secretary Janet Napolitano announced in a memo that deferred action will be implemented for certain undocumented youth.

Today, the Department of Homeland Security (DHS) announced that it will begin to exercise prosecutorial discretion for certain undocumented youth.  This means that DHS will not seek the removal or deportation of those youth it deems eligible.  Additionally, work authorization will be made available.  This policy extends to eligible individuals if they are in removal proceedings or if they have never been placed in removal proceedings.  Only those who meet the eligibility criteria may benefit from this announcement. 

The general criteria for consideration of prosecutorial discretion or deferred action are as follows:

• Came to the United States under the age of sixteen;
• Has continuously resided in the United States for at least five years preceding the date of this memorandum [June 15, 2012];
• Is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
• Has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat a threat to national security or public safety; and
• Is not above the age of thirty.

If you or someone you know appears to meet these criteria, please contact our office for additional information.  We may be able to assist you and are happy to meet with you.

Please note that this is not a law, it is not “The Dream Act,” and it does not create any new rights.  Rather, it is an announcement for a policy that is yet to be put in place.  It is anticipated that the procedures and further clarification of eligibility should be implemented within approximately sixty days, according to the memo released June 15, 2012.

Caution about Recent Announcements by Department of Homeland Security (DHS) – Prosecutorial Discretion is Not Amnesty

Recent statements by DHS Secretary Napolitano and the Obama Administration indicate that prosecutorial discretion may be broadly used by Immigration and Customs Enforcement (ICE)  and Customs and Border Protection (CBP) to focus only on “high priority” cases. High priority cases generally involve immigrants with criminal backgrounds. The announcement does not amount to an amnesty, nor does it mean DHS will not pursue “low priority” cases. DHS still has the authority to seek the deportation of anyone present in the U.S. without permission.

If you are in the U.S. without permission, we strongly urge you to seek the advice of an immigration attorney before you consider “turning yourself in” to ICE or CBP. We advise you against seeking the counsel of a notario or “immigration consultant” as they are not authorized to practice law.

You are welcome to call our office to meet with an attorney during a scheduled consultation.

For more details about the recent DHS statements, please see the summary below published by the American Immigration Lawyers Association (AILA), of which all attorneys in our firm are members.

http://www.aila.org/content/default.aspx?docid=36705

Anuncio Sobre Comunicados Recientes del Departamento de Seguridad Nacional – NO ES una Programa de Amnistia

La Secretaria del Departamento de Seguridad Nacional (DHS, por sus siglas en ingles), Napolitano, y la oficina del presidente Obama han indicado que inmigración (ICE, por sus siglas en ingles) y la agencia fronteriza (CBP, por sus siglas en ingles) pueden usar su discreción ampliamente para enfocarse en casos de “alta prioridad.” En general, casos de “alta prioridad” incluyen a inmigrantes con antecedentes penales. Este comunicado no otorga la amnistía, ni tampoco significa que DHS no esté interesado en casos de “baja prioridad.” DHS mantiene la autoridad de enjuiciar y buscar la deportación de cualquier persona que esté en los Estados Unidos sin permiso.

Si usted está en los Estados Unidos sin permiso, le sugerimos que consiga la opinión de un abogado de inmigración antes de que se presente ante ICE o CBP. Recuerde que notarios y asesores de inmigración no tienen licencia para practicar derecho en los Estados Unidos.

Si tiene preguntas, por favor llame a nuestra oficina y pida una consulta con uno de nuestros abogados.

Si gusta más detalles sobre el comunicado de DHS, favor de leer este resumen publicado por la Asociación Americana de Abogados de Inmigración (AILA, por sus siglas en inglés, a la cual pertenecen todos nuestros abogados. La versión en español empieza a partir de la pagina 4.   

http://www.aila.org/content/default.aspx?docid=36705