You Can Stay in the Country as a Victim of Crime

If you are a victim of certain types of crimes, you may be eligible for a “U” nonimmigrant visa. U-Visas were created by Congress in 2000 for victims of certain crimes who have suffered mental or physical abuse and have cooperated with law enforcement or government officials. The U-Visa allows victims of crime to assist the government or law enforcement in prosecuting crimes without fear of negative immigration consequences such as deportation.

U-Visa Eligibility Requirements

You may be eligible for the U-Visa if the crime occurred in the United States: 

  1. You are a victim of “qualifying criminal activity.” Qualifying Crimes include:
    i. Domestic Violence
    ii. Felonious Assault
    iii. Kidnapping
    iv. Manslaughter
    v. Murder
    vi. Obstruction of Justice
    vii. Rape
    viii. Stalking
    ix. Trafficking, and others
     
  2. You suffered physical and/or mental abuse as a result of the criminal activity.
     
  3. You have information about the criminal activity.
     
  4. You were helpful, are helpful, or likely to be helpful to law enforcement or government officials in investigation or prosecution of the crime. Note that it does not matter whether the perpetrator of the crime was convicted of the crime, as long as you have assisted in the investigation.

Additionally, you should be admissible to the United States. But if you are not, there is a generous waiver available, through applying for Advance Permission to Enter as a Nonimmigrant. 

What Kind of Evidence is Needed to Apply for the U-Visa

To receive a U-Visa, it is important to document the mental and/or physical abuse you experienced as a result of being a victim of a crime. In addition to a declaration describing what occurred and what impact the crime had on you, it is important to provide documentary evidence of any physical abuse, such as pictures, a report from the physician that treated you, or a psychological assessment describing the impact of the mental abuse. Our office can assist you in obtaining these additional documents. 

It is also necessary to obtain a certification request from law enforcement or a government agency. This is done by submitting Form I–918 Supplement B to the relevant agency. However, it is important to submit that form along with any supporting documentation to ensure that you can obtain the certification. You would submit this supplement along with Form I-918.

Waiver of Most Grounds of Inadmissibility

One advantage of the U-Visa as compared to other types of visas or lawful permanent residency is that a waiver of most grounds of inadmissibility is available. This is done by filing Form I–192 with a $585 fee, or a fee waiver request if you cannot afford the fee. It is important to submit a letter or declaration describing how you meet the waiver requirements, which generally should address why it would be in the national or public interest to grant the waiver. 

Conclusion

The first step to obtaining the U-Visa is to determine if you are eligible. The next step is to prepare your application, which can involve many steps. Our office is experienced in handling U-Visas — contact us if you would like to know if you are eligible for a U-Visa. 

H-1B and L-1 Fees Increase

On December 18, 2015, President Obama signed into law an increase in fees for certain H–1B and L–1A and L–1B petitions, through a signing of the Consolidated Appropriations Act, 2016. 

These additional fees apply to petitioners who have 50 or more employees in the United States and have more than 50 percent of employees in H–1B, or L status, and who have filed petitions for either status postmarked on or after December 18, 2015. 

H–1B Petition Fee Increase

H–1B visas are nonimmigrant visas that are known for allowing high-tech workers to come to the United States. But the H–1B visa program is for any U.S.-based employer that wants to hire a worker with “highly specialized knowledge” in any field. As part of the process, the employer will petition for the worker with United States Citizenship and Immigration Services and will pay the associated fees. 

However, the fees vary based on the size of the employer and whether that employer already employs H–1B workers:

  1. Base Filing Fee: $325
  2. Fraud Prevention and Detection Fee (not applicable to H–1B1): $500
  3. Additional Fee based on Employer: a. 1 to 25 full-time equivalent employees: $750 b. 26 or more full-time equivalent employees: $1,500
  4. Optional Premium Processing Fee: $1,225

The law signed by President Obama on December 18, 2015 applies for those employers who employ 50 or more employees, with 50 percent of those employees in H–1B or L status. Those employers must pay $4,000 for filing H–1B petitions on or after December 18, 2015. 

L–1 Petition Fee Increase

The L–1A and L–1B visas are nonimmigrant visas that allow a U.S. employer to transfer an executive or manager, or a person with specialized knowledge, from one of its affiliated foreign offices to one of its offices in the U.S. 

The fee structure for L–1 applications follows the same rate as above, but President Obama’s recent change in law results in an additional $4,500 fee for employers who employ 50 or more employees, with 50 percent of those employees in H–1B or L status. 

Conclusion

If you have any questions or concerns about these new fees, or about your H–1B or L–1 petition, the Law Offices of Vivek Mittal can assist you. Contact us for a consultation.

Immigration Benefits for Same Sex LGBTQ Couples

It may be old news that same sex marriages are legal in the United States. In United States v. Windsor, the Supreme Court ruled that same sex marriage is recognized as valid by the federal government. The Obergefell decision made same sex marriage legal in all fifty states. 

But what you may not know is that Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) couples who are married can now receive immigration benefits when they were not eligible to do so prior to the Windsor decision.

USCIS Treats Same Sex Married Couples The Same as Opposite Sex Couples

Upon the issuance of the Windsor decision, United States Citizenship and Immigration Services (USCIS) was directed to “review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse,” beginning on July 1, 2013. This means that USCIS will view marriages and the visa applications filed due to those marriages, in the same way it reviews marriages between opposite sex couples. This change in policy has created a tangible change in all LGBTQ communities throughout the United States.

Qualifications for a Same Sex Spouse of a U.S. Citizen

One common immigration benefit that leads to lawful permanent resident status (LPR) results from an immigrant’s marriage to a U.S. Citizen. There are generally two ways to obtain LPR status through marriage to a U.S. Citizen, and it depends on whether the immigrant is currently residing in the United States and whether they had been inspected by immigration on their last entry to the U.S.

To qualify for LPR status due to a same sex marriage, you first need to show that your marriage is recognized as valid under the jurisdiction where you were married. If you were married in California, for instance, same sex marriages were valid for only a short window of time a few years ago. However, now, same sex marriages are valid in all fifty states. 

If you were married in a country that does not recognize same sex marriage, such as China or India, your marriage would not be considered valid under immigration laws. It is important to get an assessment of your marriage first before applying for any immigration benefits. 

How Immigration Benefits for LGBTQ Couples Affect Children and Other Potential Beneficiaries

Obtaining your green card through a same sex marriage also allows for the granting of green cards or other benefits for dependents. For instance, in the example above, if the same sex spouse has a child that is not yet twenty-one years old, that child may be able to obtain lawful permanent residency at the same time as the same sex spouse. 

Additionally, an individual who is granted asylum, but whose same sex spouse still resides in their home country, can now immigrate to the U.S. under “follow to join” benefits. There are numerous other benefits that may apply to LGBTQ couples.

Conclusion

Recent changes in law make benefits that have been available only to opposite sex spouses available to same sex spouses. Those who are part of a same-sex marriage should not be afraid of applying for immigration benefits that might be available to you now. The Law Offices of Vivek Mittal not only understands how to navigate the complexities of immigration law but has supported non-profits that work to empower LGBTQ communities, particularly in the South Asian diaspora. Contact us for a consultation. 

Letter from Immigration Raid Victims

In the early days of 2016, the federal government began immigration raids of families and children, many of whom came to the United States while fleeing persecution and violence in their home countries.  Many of these raids have been occurring in Georgia, North Carolina, and Texas.  As a result of the raids, seven families who have been detained wrote a collective letter to President Obama's administration, describing what they have experienced.  It is reproduced below.  The original, and the original letter in Spanish, can be found at https://www.raicestexas.org/blogs/50.  

January 27, 2016

Dear President Obama,

We are the mothers who are victims of the raids who were detained at the beginning of 2016. We would like to ask you for our freedom from the unjust detention you have imposed on our families. Why did you choose us to make an example of to frighten other Central American families, with no regard for the suffering it causes us and our children?

Instead of giving us and our children the resources to have a chance at winning our cases, you have used us and made us more vulnerable. We complied with everything that was asked of us, but it was the system that failed us, just because we came to this country to seek protection, because we couldn’t go back to our countries of origin due to being exposed to so much violence and threats against us and our children. That’s why we came to this country to request asylum.

Mr. President, your ICE agents deceived us, telling us we didn’t have a right to legal counsel, and they used lies to get us to go with them to ICE offices. The Board of Immigration Appeals approved our requests for protection, and we are still jailed in this place. We have been detained for almost 30 days, and that implies you are violating our rights.

We demand a response to our cases. It is an injustice that our children are detained and are missing the school year. Being detained has affected us and our children a lot, because of the mistreatment we have received from the authorities, and the frustration it has caused us. We are not criminals who you have to keep locked up. We have not committed any crime and it is unjust that our children, at such an early age, know what it’s like to be in a jail under guard 24 hours, when at this moment they should be in school living life with dignity like every child deserves to.

This is why we ask you to protect the rights we all have.

We hope for a positive response and that we can be returned to our homes in the USA that ICE took us from without caring about the suffering it caused and in violation of our rights.

As a result of being detained, some families have lost their homes.

Please, take us out of this detention center because we and our children are sick with depression and in psychological crisis. We need to be free like human beings to be able to fight our cases outside with dignity.

Sincerely,

Ana Silvia Orellana
Dominga Rivas
Elsy Monge Lopez
Gloria Diaz Rivas
Isamar Sanchez Chicas
Marta Maria Hernandez
Susana Arevalo Hernandez

United States v. Texas Will Be Heard by the Supreme Court

On January 19, 2016, the Supreme Court agreed to hear United States v. Texas, which was a case filed by the State of Texas and twenty-five other states to try to block President Obama’s expanded DACA and DAPA

After the Fifth Circuit Court of Appeals upheld the lower court’s decision, President Obama’s administration asked the Supreme Court to review it. The Supreme Court will be addressing four questions when it hears the case, which will likely be in late April 2016, with a decision expected in June 2016. 

Does Texas have the authority to sue?

The first question that the Supreme Court will answer in the case is whether Texas and the other states have the ability to file the lawsuit at all, which is known as “standing.” In Federal Court, parties need to have suffered an actual injury - or will suffer an injury - that is caused by the opposing party, or defendant, in a way that the Courts can actually resolve for the plaintiff. The Federal District Court Judge in this case held that Texas and the other plaintiffs had enough “standing” to be able to pursue their case. The administration argues that just like any other individual, states do not have the authority to sue the President or the decisions he makes, even if Texas has to issue driver’s licenses to those individuals and has chosen to subsidize those licenses.

Texas and the other states argue that they do suffer an injury because they will have to subsidize their issuance of driver's licenses to the millions of people who are eligible for expanded DACA and DAPA.  More discussion on this issue can be found here.

Does President Obama’s administration have the authority to issue the new immigration policy?

The second question deals with whether the administration can actually create the DACA and DAPA policies, and allow millions of people to stay lawfully in the country and provide them with work permits. The administration argues that they have the discretion to allow would-be DACA and DAPA recipients to not be deported, as part of the discretion provided by Congress. 

Texas and the other states argue that Congress has created laws for the deportation and removal of immigrants to the United States. Further, the states argue that Congress has not provided so much discretion to the administration to make a blanket policy to permit millions of people to stay in the United States. The states also argue that Congress has provided the administration with the authority to decline to deport only four narrow categories of people, including family members of lawful permanent residents who were killed on September 11.

Did President Obama’s administration follow federal regulations in issuing the new rules?

The third question is whether the administration followed federal regulations in both issuing the expanded DACA and DAPA, but also whether it provided the public enough time to comment on those new policies. 

The Take Care Clause

Lastly, the Court asked whether both sides could research and discuss whether the administration abided by the “Take Care Clause” of the Constitution, which requires that the president “take care that the laws be faithfully executed.” 

Conclusion

The Supreme Court will have a decision sometime this summer. However, it is important not to wait until the decision to determine if you are eligible for DACA or DAPA. You may be eligible for the original DACA program or another immigration benefit. Contact our office to schedule a consultation here.

Almanza-Arenas v. Lynch Finds that California’s Vehicle Theft Statute is Not a Crime Involving Moral Turpitude

In the days before the new year, an en banc Ninth Circuit Court in Almanza-Arenas v. Lynch, No. 09–71415, slip op. (9th Cir. Dec. 28, 2015) held that California’s Vehicle Theft Statute, California Penal Code § 10851(a) is not a crime involving moral turpitude (“CIMT”). 

My office had previously blogged about the predecessor to this case here, which held that the Petitioner’s crime is not a CIMT. However, because of the current debates regarding the impact of crimes on one’s immigration status, the Ninth Circuit decided to rehear the case in front of a larger panel of judges. In this case, that panel constituted eleven judges. 

In this case, the Court provides a step-by-step analysis to determine if the State offense is indeed a CIMT. 

Step 1: Compare the state crime’s elements to the federal offense’s elements.

The Court looked at the text of § 10851(a) and compared it to the definition of a CIMT. CIMT can be defined as “vile, base, depraved” and “violates accepted moral standards.” The Court then looked at existing cases and found that taking someone’s property only temporarily is not a CIMT, but a permanent taking is a CIMT. Therefore, the Court then turned to the next step to determine whether § 10851(a) has multiple crimes within it (or whether it is “divisible”), or is just one crime. 

Step 2: Determine if the state crime is divisible or not.

The Court provides a definition of “divisible,” that is “whether [it] has multiple, alternative elements, and so effectively creates several different crimes.” Almanza-Arenas, No. 09–71415 at 13 (quoting Descamps v. United States, 133 S. Ct. 2276 (2013)). 

The Court reasons that the divisibility of § 10851(a) depends on whether to “permanently” or “temporarily” deprive someone of their vehicle is an element or a means to prove one crime. Id. The Court then looked to jury instructions, and other state law authority, to determine whether the jury was required to find the intent of the accused as either “permanent” or “temporary,” or was not required to make a choice. The Court found that the jury instructions clearly showed that a California jury did not have to choose between a “permanent” or “temporary” taking to convict the accused of § 10851(a). Since no choice had to be made, “permanent” and “temporary” are not individual elements of a crime, but just different means to commit the same crime. The Court did not need to proceed to Step 3 of the inquiry, and therefore found that the crime is not a CIMT, and therefore the person is not removable. 

This case illustrates the massive number of changes in the way crimes affect one’s immigration status. These changes could mean the difference between being ordered deported by an immigration judge or being allowed to stay and live your life in the United States. 

The Law Offices of Vivek Mittal is dedicated to serving immigrants with criminal issues, also known as “crimmigration,” and fighting zealously for them. As a former law clerk to a Federal judge, Attorney Vivek Mittal is an expert in determining whether recent caselaw could impact your case. Contact our office for a consultation today.

The Fifth Circuit Prevents Immigration Relief for Millions

The Fifth Circuit Court of Appeals held today that the Deferred Action program as announced by President Obama on November 20, 2014 would continue to be on hold until the resolution of the trial.  This includes a hold on the Deferred Action for Parents of Americans (DAPA) and the update to the Deferred Action for Childhood Arrivals (DACA).  

What this means is that there will be a trial on this issue in Texas, or the government may ask the Supreme Court to review the issue.

For more information, click here to read the decision.

How to Apply for an Immigrant Visa (Green Card)

The first step to becoming a lawful permanent resident of the United States is to apply for an immigrant visa, also known as a “Green Card.”  A green card allows an individual to stay in the United States and work on a permanent basis so long as they maintain their lawful status.  Generally, once a lawful permanent resident maintains their status for five years they are eligible to naturalize to a United States Citizen.

The most common ways of getting an immigrant visa is through a family member who is already a citizen or an employer.  The U.S. Citizen or Employer who serves as the petitioner for the person who receives the immigration benefit, or beneficiary.  The petitioner starts the visa process by filing a petition with the U.S. Citizenship and Immigration Services (USCIS). For the most part, petitions may only be filed in the United States, and special rules apply for those applying from outside the United States.

Submitting the Initial Petition

Family Immigration through a U.S. Citizen and Lawful Permanent Resident

A U.S. citizen can file a family-based immigrant visa petition on behalf of an immediate relative: spouse, child who is less than 21 years of age, an orphan adopted abroad by a U.S. citizen, an orphan to be adopted in the U.S. by a U.S. citizen, or a parent of a U.S. citizen who is at least 21 year old.  

On the other hand, a lawful permanent resident, or someone who already has a green card, can file a family-based petition only on behalf of their spouse, a child who is under 21 years of age, or a son or daughter who is over 21 years of age.  

The first step in the immigrant visa process is for the sponsoring family member to file an I-130 Petition for Alien Relative with USCIS.  Once that step is complete, the beneficiary may have to wait until the immigrant visa number is available - unless the petitioner is a U.S. Citizen immediate relative.  Scroll to the end of the article to get more information on whether a beneficiary has to wait to apply for their green card.  

Employment-based Immigration through a U.S. Employer

A U.S. Employer can also sponsor an immigrant who will be hired for permanent employment. In some situations, the law allows immigrants to sponsor themselves. The petition process begins by filing an I-140 Petition for Alien Worker with USCIS.  Employers may also file an I-907 to request Premium Processing for faster approval.

Other Ways to Obtain the Immigrant Visa

There are other ways to obtain the green card, including through one’s status as an asylee or through visas including the U-Visa.  To see if you are eligible for one of these other immigration benefits, contact our office for a free phone consultation.  

Adjustment of Status or Consular Processing?

Once the Petition is approved and the priority date is current, the beneficiary can either apply for adjustment of status or through a U.S. Consulate in their home country in order to obtain their immigrant visa.  

Adjustment of status is generally available to beneficiaries of approved I-130 petitions whose number is current, who entered the United States with a visa, did not work in the United States without permission from the U.S. Government, and is currently residing in the United States.  If the beneficiary is an immediate relative of a U.S. citizen, then the adjustment of status application can be filed even if the beneficiary has been present in the U.S. past a visa expiration date or if they worked without permission.  The form to file to adjust status is the I-485 form, and should be filed with extensive documentation.  Once that form is processed, USCIS will schedule an interview at a local USCIS office.

Consular Processing is available to those who are either outside the United States at the time the priority date is current or not eligible for adjustment of status.  It involves applying abroad at the U.S. Consulate at the beneficiary’s home country, filling out the DS-260 form, providing supporting documentation, and attending an interview at the Consulate.  For more information on Consular Processing, click here.  

Once the beneficiary attends the interview and everything goes well, the beneficiary will receive a green card!

Important Information About When a Beneficiary Can Obtain a Green Card

The United States limits the number of visas given out each year in certain categories. In cases when there are more applicants than visas, a waiting list is created. Visas are handed out on a chronological basis. However, applicants in the following categories are NOT subject to limits, and therefore do not have to wait to apply for adjustment of status or consular processing: 

  •     IR-1: The spouse of a U.S. Citizen
  •     IR-2: An unmarried child (under 21 years of age) of a U.S. Citizen
  •     IR-3/H-3: An orphan adopted abroad by a U.S. Citizen
  •     IR-4/H-4: An orphan to be adopted in the U.S. by a U.S. Citizen
  •     IR-5: Parent of a U.S. Citizen who is at least 21 years old

There are alternative categories in applying for an immigrant visa. Other common classifications include: petitions submitted on behalf of a foreign fiancé or a child adopted from another country.  

Once the petition is approved, a priority date is issued.  The priority date is the date that USCIS received and processed the petition.  The priority date is necessary in order to proceed with the visa application process.  You can check your priority date against the dates in the visa bulletin, which you can find here, or check your priority date directly on the Department of State website here.  

Where to File

Petitioners should file their I-130 petitions based on the instructions listed here.  Note, there are separate addresses for sending applications via the United States Postal Service versus private couriers such as FedEx.  Additionally, it is important to note that I-130 petitions filed at the same time as the I-485 petitions are usually filed in a unique address.  

Employers should file their I-140 petitions based on the instructions listed here.  Note that the address it should be sent depends on whether Premium Processing is desired rather than Regular Processing.  Certain I-140 petitions can be filed online; check this link to see if e-filing is available for your I-140 petition.  

I-485 forms should be filed based on the instructions listed here.  

Instructions for where and how to file for Consular Processing can be found here.  

Have more questions?  Contact our office for a free phone consultation.

For More Information

USCIS’ information on how to obtain a Green Card 

Department of State Travel website 

Fifth Circuit Court Denies Justice for DACA and DAPA-eligible individuals

On May 26, 2015, two of the three Fifth Circuit Court of Appeals' judges prevented the expanded DACA and DAPA program from going forward, and allow millions of people who are working without authorization and without any legal status some relief to contribute to our economy. 

In its decision, the Court of Appeals reasoned that the State of Texas would lose millions of dollars for granting drivers' licenses to DAPA and DACA recipients.  That is because the State subsidizes each driver's license they issue, approximately $130.89 per license.  Though the U.S. Government, which is defending the DACA and DAPA program, argued that Texas could raise the fee and stop subsidizing licenses, the Court of Appeals held that Texas having to choose between subsidizing licenses and raising their fees injures the State.  

Part of the problem with the case is that the Fifth Circuit does not understand how immigration law works.  In the memo that established the DAPA program and expanded DACA, the Secretary of the Department of Homeland Security states that "Deferred action does not confer any form of legal status in this country, much less citizenship; it simply means that, for a specified period of time, an individual is permitted to be lawfully present in the United States."  Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents, Secretary Jeh Johnson, at 2, Nov. 20, 2014.  However, the Fifth Circuit states that the memo is an "affirmative act ... conferring "lawful presence" on a class of unlawfully present aliens."  Texas v. United States, No. 15-40238, 2015 WL 3386436, at *9 (5th Cir. May 26, 2015).  DHS cannot confer "lawful presence" to any individual, only "lawful status," which is outlined in the memo.  The Fifth Circuit continues to refer to the granting of "lawful presence" - but there is no such term in immigration statutes or regulations.  

This is one of the many issues with the case.  Ultimately, it is important to be ready in the future if you want to take advantage of these programs.  Additionally, be sure to renew your DACA status if you already have received DACA.  

H4 Visa Holders Can Work in the United States

As we come upon a new H-1B season (H-1B applications are accepted beginning today), there are some important changes for H-4 dependent spouses.  The Department of Homeland Security recently announced that beginning on May 26, 2015, certain H-4 visa holders can obtain work permits while in valid H-4 status!  

This change in policy was part of President Obama's Immigration Actions on November 20, 2014.  However, this reform could not have been possible without the tireless advocacy of numerous groups, including Facebook groups such as H4 Visa, a curse.  

But only certain H-4 visa holders are eligible to work.  Take a look below to find out who can apply for a work permit (also known as an Employment Authorization Document):

  • H-4 dependent spouses of H-1B visa holders who are the principal beneficiaries of approved I-140 petitions, OR
  • H-4 dependent spouses of H-1B visa holders who obtained their H-1B visas under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. Basically, H-1B nonimmigrants seeking lawful permanent residence who are able to work and remain in the United States beyond the six-year limit on their H-1B status can have their H-4 dependent spouses obtain work permits.

here are a lot of questions regarding this.  Feel free to call my office to have your questions answered, or schedule a consultation here.

Texas Court BLOCKS Deferred Action!

On February 16, 2015, a Federal District Court Judge blocked the immigration initiatives announced by President Obama, namely the revised Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). 

Though the revised DACA applications were due to be accepted today, the Court's decision does not allow USCIS to accept the applications.  In a statement from the Department of Homeland Security, Secretary Jeh Johnson said he "strongly disagreed" with the decision but recognizes that the agency must comply with it.  However, DHS will appeal the decision to the Fifth Circuit Court of Appeals in New Orleans.

Note:  This does not affect DACA recipients who originally applied for DACA in 2002 or after.  Many DACA recipients should have renewed or be in the process of renewing their work permits -- this decision does not affect your rights to renew your work permit.  If you have questions, contact us for a free consultation on this issue.

Even though DHS is not currently accepting applications for either program, there is no reason to wait until the Court battle is over to see if you are eligible!  Click here to see if you meet the eligibility requirements for DACA and DAPA.

USCIS to Accept Expanded DACA Applications on February 18, 2015

USCIS recently posted the guidelines for the Expanded DACA.  You can go here to see if you are eligible for Expanded DACA and DAPA.  Since USCIS will begin accepting Expanded DACA applications on February 18, 2015 - in a little more than 2 weeks, it is important to prepare your documents now so you can be fully prepared.  You must show:

Proof of identity

  • Passport or national identity document from your country of origin
  • Birth certificate with photo identification
  • School or military ID with photo
  • Any U.S. government immigration or other document bearing your name and photo

Proof you came to U.S. before your 16th birthday

  • Passport with admission stamp
  • Form I-94/I-95/I-94W
  • School records from the U.S. schools you have attended
  • Any Immigration and Naturalization Service or DHS document stating your date of entry (Form I-862, Notice to Appear)
  • Travel records
  • Hospital or medical records
  • Employment records (pay stubs, W-2 Forms, etc.)
  • Official records from a religious entity confirming participation in a religious ceremony
  • Copies of money order receipts for money sent in or out of the country
  • Birth certificates of children born in the U.S.
  • Dated bank transactions
  • Automobile license receipts or registration
  • Deeds, mortgages, rental agreement contracts
  • Tax receipts, insurance policies

Proof of immigration status

  • Form I-94/I-95/I-94W with authorized stay expiration date
  • Final order of exclusion, deportation, or removal issued as of June 15, 2012
  • A charging document placing you into removal proceedings

Proof of presence in U.S. on June 15, 2012 & that you continuously resided in U.S. since June 15, 2007 

  • Rent receipts or utility bills
  • Employment records (pay stubs, W-2 Forms, etc)
  • School records (letters, report cards, etc)
  • Military records (Form DD-214 or NGB Form 22)
  • Official records from a religious entity confirming participation in a religious ceremony
  • Copies of money order receipts for money sent in or out of the country
  • Passport entries
  • Birth certificates of children born in the U.S.
  • Dated bank transactions
  • Automobile license receipts or registration
  • Deeds, mortgages, rental agreement contracts
  • Tax receipts, insurance policies

Proof of your student status at the time of requesting DACA

  • Official records (transcripts, report cards, etc) from the school that you are currently attending in the United States.
  • U.S. high school diploma or certificate of completion 
  • U.S. GED certificate

Proof you are an honorably discharged veteran of the Coast Guard or Armed Forces of the U.S.

  • Form DD-214, Certificate of Release or Discharge from Active Duty
  • NGB Form 22, National Guard Report of Separation and Record of Service
  • Military personnel records
  • Military health records

President Obama's Immigration Announcement: Are you Eligible?

Since President Obama’s Immigration announcement on November 20, 2014, there have been many questions about the eligibility requirements.  Though the White House is still finalizing the details of the program, below are the eligibility requirements for both the revised Deferred Action for Childhood Arrivals (DACA) and newly-established Deferred Action for Parental Accountability (DAPA) programs.  

DAPA:  Preventing the deportation of Parents

  • Have a son or daughter that is a U.S. citizen or lawful permanent resident (also known as someone with a green card)
  • Have lived continuously in the United States since January 1, 2010
  • Have been present in the United States on November 20, 2014, and probably every day until you apply for DAPA
  • Be without any current immigration status.  This means that: 
    • You must have either entered the United States without papers, or your lawful immigration status should have expired, and
    • At the time you apply for DAPA, you cannot have any current immigration status
  • Have not been convicted of certain crimes, including felonies and some types of misdemeanors
  • Pass a background check.

DACA:  Preventing the deportation of Students and Children

  • Came to the United States before your 16th birthday
  • Have lived continuously in the United States since January 1, 2010
  • Have been present in the United States on November 20, 2014, and probably every day until you apply for DACA
  • Be without any current immigration status.  This means that: 
    • You must have either entered the United States without papers, or your lawful immigration status should have expired, and
    • At the time you apply for DACA, you cannot have any current immigration status
  • Have met one of the following educational requirements:
    • Graduated from high school or obtained a certificate of completion from high school, OR
    • Obtained your general education development (GED) certificate, OR
    • Be in school at the time you submit your DACA application
  • Have not been convicted of certain crimes, including felonies and certain types of misdemeanors
  • Pass a background check.

Our office is an immigration law firm that provides phone and Skype consultations.  Schedule a consultation if you have questions about whether you are eligible for President Obama’s immigration announcement.

In the Ninth Circuit, an Inconclusive Record of Conviction May Allow You to Apply for Immigration Relief

In a recent Ninth Circuit case, Almanza-Arenas v. Holder, the Panel held that where an individual who was convicted of a divisible statute and whose record of conviction - which could include a plea agreement, colloquy transcript, statutory elements, charging documents, and any explicit factual findings to which the defendant agreed - is inconclusive as to whether a convicted crime was one involving moral turpitude, the individual does not have to show that he is affirmatively eligible for relief and that instead, that individual is not ineligible for such relief, such as cancellation of removal.  In so doing, the Ninth Circuit overruled Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc).

How to know if Almanza-Arenas can help your case:

  1. Were you convicted of a crime?  If not, stop here, Almanza-Arenas probably does not apply to your case.
  2. Do the elements of the crime constitute an aggravated felony, a crime involving moral turpitude, or another category that makes you ineligible for immigration relief under the “categorical approach”?  If not, stop here, Almanza-Arenas probably does not apply to your case.
  3. Is the statute that you were convicted of divisible, or does it contain “multiple, alternative elements of functionally separate crimes,” rather than “multiple, alternative means of committing” the same crime?  If not, stop here, the modified categorical approach does not apply to you per Rendon v. Holder, 764 F.3d 1077, 1084-85 (9th Cir. 2014). 
  4. Does the divisible statute include a crime that is not one involving moral turpitude, or an aggravated felony, or some other category that would disqualify you from obtaining immigration relief?  If not, stop here, Almanza-Arenas probably does not help you.
  5. If the divisible statute includes a crime that, if convicted, would allow you to be eligible for immigration relief, then look to whether the record of conviction to determine one of the following:
    • That it conclusively establishes that you were convicted of the elements for the lesser crime; or
    • That, as in Almanza-Arenas, it does not conclusively establish which crime you were convicted of within the divisible statute.
  6. If you can establish either of the above conditions in (5), then you are likely not ineligible for some form of immigration relief.  Of course, it is important to consult with an immigration attorney to help you in your specific case.

This ruling provides consistency and predictability for immigrants. Though there are other lessons to be learned from Almanza-Arenas, the main import of the case is that for the first time the Ninth Circuit’s applied Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) and thereby changes the way that IJs and the BIA assess whether someone is eligible for immigration relief within the Ninth Circuit’s jurisdiction, which includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, the Northern Mariana Islands, and Guam.  

The full citation to the case is Almanza-Arenas v. Holder, No. 09-71415, 2014 WL 5801416, --- F.3d ----  (9th Cir. Nov. 10, 2014).  To read it, click here