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Many immigration cases do not require any kind of litigation. If you begin working with an attorney right away then you may get through the process with routine forms and interviews. It’s nice when you don’t have to see the inside of a courtroom to secure an immigration benefit.
Some matters do require litigation however. These include removal defenses and immigration appeals. We may also challenge USCIS for delaying your application for too long, challenge arbitrary rejections, or take other steps that can help you fight for your rights in federal court.
Here’s some information about the most common types of litigation.
A court case may be your last resort if you have received a notice to appear before an immigration judge or an unexpected visit from ICE.
Even if you are a lawful permanent resident it is wise to anticipate needing a removal defense lawyer if you’ve been convicted of a crime, or even if you come to realize you’re being investigated for one.
Often litigation defense can help you stay in the United States.
If you’ve received an adverse decision from a USCIS officer then we can file an appeal with the AAO. This triggers an administrative review of your case.
These decisions are non-precedent decisions that apply existing law and policy to the facts of a given case. These cases do not create or modify the law.
We perform this litigation on behalf of companies as often as we do individuals. Often denials or delays keep American companies from on-boarding vital employees on-schedule. We work to get these issues ironed out quickly so that highly skilled immigrant employees can get to work.
If you’ve received an adverse decision from an immigration judge then we might need to request a BIA appeal. This happens within 30 days of the judge’s decision. These include removal and deportation orders, asylum cases, motions to reopen and reconsider prior decisions, family-based immigrant petitions, and waivers of admissibility.
You can generally obtain a stay while in the process of appealing to the BIA.
In general, the earlier you involve an immigration lawyer in your case, the smoother the case will go. The goal is generally to keep you out of litigation while being prepared to jump into the court system at any time.
Don’t leave your immigration case to change. Contact the Law Office of Renee Hykel to get help with your applications, forms, or immigration challenges today.
See also:
Who Can Appeal an Immigration Decision?
What Are Your Options When You’re Undocumented?
Renee Hykel Cuddy has some advice for anyone attempting to complete law school while training for the Olympics: don’t.
“Not a good idea,” she says. “I don’t know why I came up with that plan.
“One of my professors pulled me aside and said, ‘You’re late to class every day. You’re a disaster. You’re not going to be a good lawyer.’ And I said, ‘Yeah, I know, I’ll work on it.’ Although I wanted to get to class on time, juggling law school and training was very challenging. My attendance didn’t improve much, and the professor gave me death stares when I continued to arrive late. My plan was always, I’ll figure it out. I’ll become a good lawyer at some other time in my life.”…
Read more here on SuperLawyers.
As we start 2019, President Trump will not have the funding for his “wall” on the United States and Mexico border. The President has been vocal on the necessity of a physical wall on the border since his campaign in 2016, but construction has yet to begin. This month, Senate Democrats rejected legislation with the requested $5 billion in funding for the border wall, and President Trump refused to sign any funding bill without those designated funds. Thus, Congress breaks for the New Year in a stalemate.
While the funding and future of the border wall are uncertain, and becoming less likely as the Democrats control the House of Representatives starting on January 3rd, other immigration policy under the Trump Administration took hold in 2018. This was a year of major shifts in immigration policy.
It is illegal for a foreign national to enter the United States without an applicable visa or permanent residency. Section 275 of the Immigration and Nationality Act, or Section 1325 of the U.S. Code, makes it a federal crime to enter or attempt to enter the United States at any place other than an official port of entry, elude or attempt to elude border officials, or use false documentation to enter the United States.
Illegal entry isn’t a new offense under the Trump Administration, nor has the central characteristics of the federal offense changed, but the immigration policy behind this section of the Immigration and Nationality Act changed substantially in 2018.
Practically speaking, illegal entry was always handled through financial and removal proceedings. An undocumented individual is detected, charged a fine for illegal entry, and deported. If there were a claim of asylum or other circumstances, the individual would have additional hearings to determine the validity of these claims. In 2018, the Trump Administration enacted a zero tolerance policy that used the full weight of the illegal entry criminal provision.
As adults were formally charged with the federal crime, minor children were separated from adults and all individuals detained separately. The outrage from this immigration policy was swift. The Administration says that families are no longer separated on the basis of criminal detention for illegal entry, but Immigration and Customs Enforcement agents are still forcefully using criminal charges to detain and deport individuals accused of illegal entry.
The challenges to immigration courts are long-standing and complicated. There has long been the need for some revisions and shifts in how these courts operate and the due process provided to immigrants. But few immigration lawyers envisioned those changes going in the direction of the Trump Administration in 2018.
Under Attorney General Jeff Sessions’ immigration policy of 2018, more immigration court judges were hired and these judges ordered to hear substantially more cases. This move was intended to solve an impressive backlog of 730,000 pending immigration cases. The judges hired tended to share certain traits – a background in law enforcement, focus on former prosecutors, and other governmental experience. As well, the placement of these judges was noticeably at two immigration courts; those courts where hearings were heard by teleconferencing and the cases could, supposedly, be handled even faster.
Further, AG Sessions introduced modifications to the performance reviews of all immigration court judges that linked a judge’s performance to the number of cases heard. Of course, this should increase the number of cases heard each week, month, and year, but likely at the detriment of those before the courts, as due process and other rights before deportation and removal could be overlooked or ignored.
There are roughly 400,000 people living in the United States under Temporary Protected Status (TPS). These individuals come from El Salvador, Honduras, Nepal, Sudan, Yemen, Haiti, and elsewhere. Some people afforded TPS have been in the United States for more than 20 years, but for many of these immigrants, their legal status in the United States is going to change.
In 2018, the Trump Administration announced the end of TPS status for six of the 10 countries currently provided special rights to live in the United States after a natural disaster or violent circumstances. Individuals from Sudan, Haiti, Nicaragua, El Salvador, Nepal, and Honduras will lose TPS between now and 2020.
As the name would suggest, TPS was created and managed as a temporary program for individuals fleeing unlivable circumstances, but to rip away the legal status of nearly 390,000 individuals, some of whom hardly remember lives elsewhere, was met with substantial criticism. In October 2018, blocked the Department of Homeland Security’s cancellation the TPS program, calling it unconstitutional.
The right to work in the United States, even for a limited amount of time, can change the life of an immigrant from India, Argentina, or Hungry. There are 85,000 H-1B visas awarded each year to individuals wanting to work in the United States, which includes 20,000 visas awarded to individuals with masters degrees that are exempt from the cap of 65,000. Most of these visas are awarded to foreign nationals already studying in the United States under the F-1 visa.
Adjustments to the H-1B application and approval process marked a new approach to foreigners employed in the United States and immigration policy around employment visas. First, parts of the executive order to “Buy America, Hire America” has led to a higher standard for scrutinizing and approving H-1B visas. The number of H-1B visa applications denied has increased since this immigration policy change.
Following this adjustment, the Trump Administration announced the end of premium processing for H-1B visas and announced a new preference for H-1B applicants with a master’s degrees or higher that would change the lottery system typically utilized for deciding the H-1B applications that are approved. It should increase the education level and talent pool of individuals approved for an H-1B visa but also cost the government more money to effectuate.
Lastly, a final change to the H-1B visa was proposed, but not finalized, in the fall of 2018. The proposal would once again prevent spouses of H-1B visa holders from working. In 2015, roughly 50,000 spouses gained the right to work under their H-4 visa, provided certain criteria were met, but the Trump Administration is considering removal of this allowance.
While these changes to immigration policy exemplify many of the goals and proposals of the Trump Administration, it is hardly a comprehensive list. The year 2018 was also marked by ICE arrests in courtrooms and hospitals, another increase in the overall number of ICE arrests, and changes to asylum rules and requirements. All in all, the Trump Administration hasn’t successfully erected a physical wall, but the Administration has succeeded in making many aspects of immigration to the United States more difficult.
It should be expected that the complications and uncertainty around U.S. immigration policy will continue into 2019 – making the need for a skilled immigration lawyer necessary.
If you have questions regarding immigration policy, an immigration case, deportation, or U.S. visas, contact our team at Hykel Law. We can schedule a consultation with an experienced, Philadephia lawyer in our office when you call (215) 246-9400.
Today, the US Supreme Court reached a split, 4-4 decision on whether President Obama has the authority to institute DAPA and Extended DACA to foreign nationals currently present in the United States. Due to the vacancy in the Supreme Court left by the death of Justice Scalia, the Court reached a tie of 4-4. In the event a tie, the decision of the lower court stands. Therefore, the injunction upheld by the Fifth Circuit stands. On this sad day, 4 million hard working people in our country will not be able to come out of the shadows. The Court’s inability to reach a decision is also caused by many Republican Congressman who refuse to meet President Obama’s nominee for the US Supreme Court. If we had a full court of nine Justices, we would at least have a SCOTUS decision in this matter. This is a sad day for our country on many fronts. To learn more about Extended DACA and DAPA, see this article
Check out this recent article from The Atlantic, which details how a large immigrant population has strengthened the city of Nashville, Tennessee.
On November 20, 2014, President Obama announced a series of immigration reform plans to be implemented in 2015. This plan came after Congress failed to pass a comprehensive immigration reform bill, despite its passage through the Senate. The President’s new plan has three objectives:
1) Crack down on illegal immigration at the border;
2) Deport felons – not families; and
3) Accountability for persons residing in the United States with US citizen or lawful permanent resident children through payment of taxes and background checks.
The President’s plan has two components – 1) deporting criminals and – 2) reforming existing programs to provide accountability, tax revenues and efficiency for persons who have long awaited lawful status and citizenship.
Immigration reform is needed to strengthen our society and our financial well -being. Something all Americans need to understand is that we cannot afford to deport 11 million people currently living in the United States without lawful status. AnImmigration reform update is needed for financial reasons as well as humanitarian reasons. Implementation of the President’s plan is predicted by a conservative think tank to reduce the deficit by 2.5 trillion dollars, strengthen the GDP and stimulate the economy.
Many people who do not have lawful immigration status come to our country to flee unstable, dangerous places and pursue a better life for their families. They have U.S. citizen children, they enrich our communities with an exceptional work ethic and strong family values. These people have no criminal infractions and often have been victims of crimes themselves.
Deporting Criminals, Not Families
Immigration and Customs Enforcement (“ICE”) has long exercised discretion as to who it should focus time and resources on deporting. This means that if ICE is aware of a convicted felon who lacks status and a mother of three US Citizen children who has no arrests, it will use resources to deport the convicted felon before it may ever contact the mother.
This is referred to as the exercise of prosecutorial discretion (“PD”). PD has been going on for decades as ICE has long recognized that resources are limited.
Contrary to what many think, President Obama has deported more people than any President in American history as can be seen by Pew Research here.
President Obama’s immigration reform detailed three types of people that are enforcement priorities, recorded here.
Here is a brief summary of the immigration plan:
strong>Priority 1 High Level Criminals
Priority 2 Lower Level Criminals and Illegal Entrants
Priority 3 Foreign Nationals with Final Orders for Deportation
The President has prioritized criminals for deportation from the United States by directing ICE to remove such persons. Hard-working, law abiding families are not prioritized by Obama on immigration reform plans.
Reforming Existing Programs
President Obama has made provisions for other existing programs and published detailed guidelines outlining the new program available here:
1) Deferred Action for Childhood Arrivals (DACA) will now include people who have been living in the United States as of January 1, 2010, before reaching the age of 16, and will no longer have an upper age restriction of 31 years of age. Additionally, DACA recipients will get work authorization for a period of three (3) years, not two (2) years. This program is currently subject to a temporary restraining order issued by a Texas District Court Judge. The Obama Administration appealed the order to the Fifth Circuit. Until a decision is made, the program is on hold.
2) Deferred Action for Parental Accountability (DAPA) is a new program that will allow persons who were parents of U.S. citizens or Lawful Permanent Residents (green card holders) as of 11/20/2014 who have resided continuously in the United States since January 1, 2010 and have not committed certain criminal offenses to obtain employment authorization. This too is on hold pending the Fifth Circuit’s decision.
3) Provisional Waivers of Unlawful Presence will now be available for undocumented persons who have lived in the United States for at least 180 days who are the sons and daughters of U.S. citizens or the spouses, sons or daughters of Lawful Permanent Residents (green card holders). This means that persons can ask for a waiver of unlawful presence from the United States without going abroad and waiting for a consular post to adjudicate the waiver request for several months outside the country.
4) Pre-registration for foreign nationals who have approved I-140 Petitions and are waiting for a visa number to file for adjustment of status (green card). This will be a huge benefit for persons who have an approved visa petition but cannot file for Employment Authorization (“EAD”) due to the waiting line for visas. The persons will be able to apply for a travel document and EAD.
5) H-4 Employment Authorization will become available for certain spouses of H1-B employees who have an approved visa petition but cannot file for adjustment of status because they are waiting for a visa to become available.
6) U.S. Citizenship Application Fees may be able to be paid with a credit card to encourage individuals to apply for U.S. citizenship.
The President’s Executive Action is estimated to provide relief to 5 million people.
The latest immigration reform news available from USCIS can be viewed here.
Criminal Background Checks and Taxes
In order to qualify for DACA, or DAPA persons must first pass a background check. If it is discovered that the applicant committed certain crimes, he/she will not be granted DAPA and will likely be referred to deportation proceedings before an Immigration Judge. Additionally, DACA and DAPA recipients will be required to pay taxes. In reality, these individuals are likely already working, but Uncle Sam receives no revenue from them. We will all benefit from the latest on immigration reform.
As part of President Obama’s Executive Action on Immigration Reform, H-4 spouses will be eligible for work authorization in the United States beginning on May 26, 2015.
Here is who will be eligible for work permits:
Spouses in H-4 Status, whose H1-B husband or wife has an approved I-140 Petition (visa petition for an employment based green card) but cannot file for a green card because of the waiting line for a visa. An immigration law known as “AC21” authorizes the extension of H1-B status indefinitely for H1-B workers who have an approved I-140 but cannot file for permanent residence due the limited number of visas available each year. President Obama’s executive action will now allow the spouses of such persons to obtain work authorization while the family waits for permanent residence status. The immigration reform of President Obama will provide significant relief to what is often many years of waiting for high level workers.
Therefore, if you are in H-4 status and your spouse has an approved I-140, you will be eligible for a work permit.
Call Hykel Law today to file your H-4 work authorization, or if need be your spouse’s I-140 petition (employment based green card).
President Obama’s Childhood Arrivals Program (DACA) will include more people as of February 18, 2015. The program was originally announced in June of 2012 and allowed persons who came to the United States as children (under the age of 16), who were still here and who did not have a lawful immigration status to obtain work authorization and social security numbers.
No More Upper Age Restriction (Persons over the age of 31 years-old Can Now Apply)
On November 18, 2014 President Obama announced that this program would be expanded to include more childhood arrivals. The biggest change to the program is that there is no longer an upper age restriction. When DACA first came out, persons who were over the age of 31 could not apply. Now, persons of any age can apply as long as they came to the USA before their 16th Birthday.
Additional Changes to DACA
The new instructions for Expanded DACA, which were published yesterday, Feb. 11, 2015 set forth other notable changes to the program:
-Applicants can now file for a travel permit (advance parole) at the same time they file for a DACA request (before the DACA request had to be approved first before one could file for a travel permit);
-Applicants can not have left the United States at all (even for one day) on or after January 1, 2014 without an advance parole (travel permit); Departures before January 1, 2014 that were “Brief, casual and innocent” are permitted for DACA;
-Applicants cannot have had a lawful immigration status as of June 12, 2012;
-Applicants who are under the age of 15 and who have a final order of removal can apply for DACA; (persons under the age of 15 without an order of final removal must wait until their 15th birthday to apply).
Proof of Physical Presence on or before your 16th Birthday
Although it is not a new requirement, now that the upper age restriction has been lifted from the DACA program, applicants may have more difficulty proving that they were physically present in the United States on or before their 16th birthday because it may have been several decades ago. Ideally, the applicant would obtain a high school transcript, but if that is not available because the school is no longer in existence, Hykel Law can help you find acceptable documents to win your case.
People may file for the expanded DACA next week on February 18, 2015. Call today to have Hykel Law handle your DACA matter.
Are you interested in becoming a U.S. citizen? If you are currently a lawful permanent resident (green card holder) of the United States, you may be eligible to apply for U.S. citizenship. Green card holders who wish to apply for citizenship must submit an application for citizenship to U.S. Citizenship and Immigration Services (“U.S.C.I.S.”) (Form N-400, Application for Naturalization) and must meet certain requirements.
To read about the requirements, check out a recent article by Attorney Renee Hykel Cuddy published by LegalZoom which explains how you may qualify for U.S. citizenship.
We look forward to helping you with your immigration case. We have the experience, knowledge and staff to handle your matter swiftly. Reach out today to discuss your needs for representation.