DOMA Update

The deadline is approaching for requesting that U.S. Citizenship and Immigration Services (USCIS) reopen a petition or application based on a marriage between a same-sex couple that was denied prior to February 23, 2011.  The deadline to request the petition or application be reopened is March 31, 2014.

See Blog post "The Death of DOMA" for more information on treatment of same-sex couples after the Supreme Court's decision in U.S. v. Windsor, No. 12-307, 570 U.S. __, 2013 WL 3196928 (June 26, 2013) finding Section 3 of the Defense of Marriage Act (“DOMA”), which defined the word “marriage” as the union between one man and one woman for purposes of any federal ruling, regulation or interpretation, to be unconstitutional. http://miimmigrationnews.com/miimmigration/2013/7/29/the-death-of-doma

 

DACA Renewal Update

In the wake of discussion on prosecutorial discretion for immigration cases, on June 15, 2012, the  Secretary of Homeland Security announced an opportunity for certain people who came to the United States at a young age and met certain guidelines to be able to apply for Deferred Action for Childhood Arrivals (DACA) and receive employment authorization and the security of being a low risk, low priority for removal from the United States for two (2) years, with the possibility of renewing their DACA at the end of the two (2) year period.

In general, DACA benefited immigrants who:

  1. Were under the age of 31 as of June 15, 2012;
  2. Came to the United States before reaching their 16th birthday;
  3. Continuously resided in the United States since June 15, 2007;
  4. Were physically present in the United States on June 15, 2012 and at the time of requesting consideration of DACA with U.S. Citizenship and Immigration Services (USCIS);
  5. Were currently in school, had graduated or obtained a certificate of completion of high school, obtained a general education development ("GED") certificate, or were honorably discharged from the Coast Guard or Armed forces of the United States; and
  6. Had not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Individuals granted DACA were granted for a two year period.  As we approach the two year anniversary of DACA, many young people will need to apply to renew their DACA.

USCIS recently posted an update on its website with information for individuals who were granted DACA prior to August 15, 2012.  Individuals granted DACA by U.S. Immigration and Customs Enforcement (ICE) prior to August 15, 2012 or who received DACA and have an Employment Authorization Document (EAD) that will expire within the next 120 days must apply for DACA renewal to avoid a lapse in employment authorization and/or the accrual of unlawful presence in the United States.  More information can be found at: http://www.uscis.gov/uscis-main-site/humanitarian/consideration-deferred-action-childhood-arrivals-process/ice-granted-daca-renewal-guidance.

Additionally, anyone who has moved since receiving DACA should complete a change of address form (AR-11).  This can be done by going to: http://www.uscis.gov/ar-11.

We anticipate more information about DACA renewals for those granted DACA by USCIS becoming available as we get closer to summer.

In the interim, if you are a DACA recipient who is approaching the two year anniversary and expiration of your employment authorization card, you may want to consider seeking legal counsel to assist you with your renewal and to help answer any questions that you may have.  Further, if you have any arrests, alcohol or drug related citations, or have had contact with the criminal justice system, it is highly recommended that you seek legal counsel before applying for an initial filing of DACA or for DACA renewal.

Am I a citizen?

 

Over the years, I have consulted with and represented several individuals who were unaware of the fact that they were United States Citizens.  Some clients believed themselves to be Lawful Permanent Residents (“Green Card” holders); others were in the United States on various visas; some had been trying to obtain visas to the United States; while others thought themselves to be undocumented immigrants.  It is not often that people find themselves questioning, “Am I a Citizen?” but perhaps it is a question that should be considered more often, especially in light of the very complex system of immigration and naturalization laws in the United States.

Under U.S. Immigration law, a person can become a citizen through naturalization, acquisition, or derivation.  This article will explore citizenship through acquisition or derivation, as with both, an individual automatically becomes a citizen through an act rather than through an application process.

An individual who becomes a citizen through acquisition effectively becomes a citizen at birth. This may occur in different ways.  One well-known example of acquired citizenship is known as “birthright citizenship,” where under the Fourteenth Amendment of the U.S. Constitution, anyone born in the United States is automatically a U.S. Citizen.

Another way one can acquire citizenship is through one or both parents being U.S. Citizens at the time of the child’s birth.  This means, that a child may be born in a foreign country, but may actually be a U.S. Citizen based on the citizenship of that child’s parent(s).  Determining whether an individual acquired citizenship at birth through the citizenship of his/her parents is more complicated and requires considerable investigation into several factors.  The first factor to the analysis is determining when the child was born and looking at the immigration laws at that time.  Since immigration laws have changed over the years, different standards apply depending on when the child was born. Another important factor has to do with whether the child was born from a marriage or out of wedlock.  In some cases, out of wedlock children need to be “legitimated” in order to be eligible for this benefit.  Further, depending on the year in which the child was born, the citizenship and immigration status of one or both parents may be relevant.  Additionally, again, depending on the year that the child was born, the residency in the United States of one or both parents and the parent’s age at the time of residency may also be important to the analysis.  Therefore, due to the complexity of this analysis, if an individual was born abroad to one or more U.S. Citizen parents, there is a chance that s/he is in fact a U.S. Citizen.

Unlike acquired citizenship, derived citizenship does not ensue at the birth of the child; rather, it occurs through the naturalization of one or both parents of a Lawful Permanent Resident child.  Derivative citizenship also looks at the laws on the date the parent(s) naturalized.  Similar to acquired citizenship, derivative citizenship may have specific requirements relating to legitimization of children born out of wedlock.  Additionally, derivative citizenship requires a determination of who is a “child.”  Depending on the year the parent(s) naturalized, a child might be one who is under the age of 18, while other years one need only be under the age of 21 to be considered a “child.”  In some years, under certain circumstances, adopted children might be able to derive citizenship, while other years and under other circumstances, they might not.  Under no circumstances can stepchildren derive or acquire citizenship through their stepparents. Again, this can be a complicated legal analysis, but in instances where one or both parents of a Lawful Permanent Resident child naturalized, that child may have become a U.S. Citizen under the law.  In such a situation, it is worth obtaining legal counsel to analyze the circumstances and advise on whether the child became a citizen.

If a child acquires citizenship at birth or derives citizenship through the naturalization of that child’s parent(s), the child is then automatically a U.S. Citizen and entitled to all the rights and benefits of any other U.S. Citizen.  That individual cannot be deported and should be able to freely travel to the United States.  The individual may be able to petition for foreign relatives and, if eligible, should be entitled to various federal and state benefits.  Further, upon turning 18, the individual has the right to vote in local, state, and federal elections.   To prove a person’s citizenship under these circumstances the individual can apply for a U.S. Passport and/or a Certificate of Citizenship (Form N-600).  Obtaining these documents does not make the person a citizen; the person is a citizen under the law, the documents merely provide the documentary proof of his/her citizenship.  There is no expiration on acquired or derivative citizenship.  

While one acquires citizenship at birth or derives citizenship as a child, one may not find out that s/he is a citizen until reaching adulthood.  Discovering that one is a U.S. Citizen can change the life of that individual and his/her entire family.  It could even result in a discovery that other family members are also U.S. Citizens.  For example, a person could discover that his/her grandparent(s) were U.S. Citizens and as a result his/her parent(s) may have been U.S. Citizens, and as a result that individual might, in fact, be a U.S. Citizen.  Thus, the discovery of citizenship may equate to a discovery that generations of relatives have claim to U.S. Citizenship.

There are likely countless individuals around the world who may, in fact, be U.S. Citizens through the citizenship of their ancestors and not even know it.  These individuals may be unaware that they are entitled to enjoy all the rights and privileges of U.S. Citizenship.  If a person has reason to suspect that s/he may have acquired or derived citizenship, or know someone who may have acquired or derived citizenship, that individual should seek legal counsel from an immigration attorney to analyze the facts surrounding his/her case and advise of the possibility of U.S. Citizenship and the impact such status may have on the rest of the individual’s family.

The Death of DOMA

On June 26, 2013, the Supreme Court of the United States found Section 3 of the Defense of Marriage Act (“DOMA”), which defined the word “marriage” as the union between one man and one woman for purposes of any federal ruling, regulation or interpretation, to be unconstitutional, U.S. v. Windsor, No. 12-307, 570 U.S. __, 2013 WL 3196928 (June 26, 2013).  This monumental decision impacted many areas of law including immigration.

Although same sex marriages are not currently recognized in many states, including the state of Michigan, under current immigration law, a marriage is one in which it is a lawful and valid in the place where the marriage occurred as long as it is not contrary to public policy.  This means that immigration looks at the place where the marriage occurred, not where the couple resides.  In the past, same sex marriages that occurred in jurisdictions where they were legal were not recognized for immigration purposes because of Section 3 of DOMA.  Thus, a same sex spouse from another country could not seek a benefit from being married to a U.S. Citizen or Lawful Permanent Resident, whereas an opposite sex spouse could.  Now, with the death of DOMA, same sex married couples should be treated the same as other married couples for better and for worse when it comes to immigration laws and interpretations. 

Some examples of how DOMA’s defeat may be recognized in immigration cases may include (but may not be limited to):

Spousal Petitions:  Under immigration law U.S. Citizen and Lawful Permanent Resident spouses may petition for their foreign spouse to bring them to the United States and create a path towards Permanent Residency and Citizenship. 

Fiancé/Fiancée Visas:  U.S. Citizens can petition for fiancés/fiancées abroad to come to the United States to get married.  This option will now be available for same sex couples.  It is encouraged that in applying for a fiancé/fiancée visa, the petitioner indicate where s/he is planning on getting married and that it is a jurisdiction where same sex marriage is legally recognized.

Derivative Status for different types of visas including employment based visas and student visas.  Certain visas allow for a spouse and children to obtain visas to join the primary visa holder.  This option will now also be available for eligible same sex spouses.

Stepchildren petitions: A U.S. Citizen or Lawful Permanent Resident spouse will also be able to petition for their foreign spouse’s child(ren) under certain circumstances. 

Cases of Spousal Abuse: Immigration Law provides legal relief for victims of spousal abuse and same sex spouses will also be able to be considered for these forms of relief. 

Relief from Removal: U.S. Citizen and Lawful Permanent Resident same sex spouses will be considered when looking at ties to the community and hardship factors in legal defenses against removal/deportation from the United States.

Hardship Waivers:  For those individuals requiring certain waivers to come to the United States or remain in the United States, same sex spouses of U.S. Citizens and Lawful Permanent Residents will now be eligible to apply for such waivers based on hardship factors to their U.S. Citizen and Lawful Permanent Resident Spouse.

Hence, under the law, same sex married couples should be treated the same as any other couple who is lawfully married.  This also means that marriage could pose the same potential risks as it has for married couples in the past.  For example, sometimes immigrants have had petitions filed on their behalf but because of certain quotas they need to wait in order to be eligible for a visa.  In some instances, marriage could result in the immigrant having to wait longer to be eligible for a visa, or even make it so that they are no longer eligible for a visa.

As with current practice, immigration will also continue exploring the bona fides of the marriage to ensure that the marriage was not entered into solely for immigration purposes, but rather to create a life together.  Immigration will also be scrutinizing any past marriages to determine whether they were lawfully terminated and whether there may have been fraudulent marriages in the past.

In closing, the Supreme Court’s decision in U.S. v. Windsor opened many new doors to same sex couples trying to immigrate to and remain in the United States.  While this decision is still new and guidance is still being developed, the Obama administration has stated that it will honor the Court’s decision in the implementation of immigration laws.  Attorneys and advocates have supplied the administration with questions and concerns regarding the impact this change will have on specific situations and await responses to their inquiries.  Additionally, as the Supreme Court’s decision takes effect, attorneys and advocates will track how the decision is implemented in various settings within immigration law.  In the interim, anyone who thinks they may now be eligible for benefits or relief as a result of the Supreme Court’s decision should seek legal counsel from an experienced immigration attorney who can help him or her navigate through the complex immigration legal system.

 

The Honeymoon is Over. Now What? Immigration Options for Marriage-Sponsored Residents When Divorce is Imminent.

“Conditional” permanent residence (CPR) refers to the status granted to a foreign national spouse of a U.S. citizen where the marriage occurred less than 2 years before the spouse’s lawful admission to the United States as a permanent resident.  A CPR receives a permanent resident card (“green card”) valid for 2 years. In order to remain a permanent resident, the CPR must file an I-751 Petition to Remove Conditional on Residence (“I-751 Petition”) during the 90 day period preceding the green card’s expiration date. The purpose of the petition is to establish that the foreign national spouse entered into the marriage in “good faith” and not to evade U.S. immigration laws.  

Generally, the CPR and the U.S. citizen spouse jointly file the I-751 petition during the 90 day period before the green card expires. In certain circumstances, the CPR may request a waiver of the joint filing requirement. A waiver of the joint filing requirement may be granted in one of the below circumstances:

  • CPR entered the marriage in good faith, but the marriage terminated due to divorce/annulment;
  • CPR entered the marriage in good faith, but spouse subsequently died;
  • CPR entered the marriage in good faith and has remained married, but has been battered or subjected to extreme cruelty by spouse; or 
  • Termination of status and removal would result in extreme hardship.

If the CPR submits a waiver of the joint filing requirement, the petition may be filed any time after the grant of conditional resident status (not limited to the 90-day period), but before the conditional green card expires.

Unfortunately, there is a misconception that if a CPR’s marriage ends before the 2-year mark, the CPR loses his/her status and must return home. This notion is incorrect. It is important for the CPR to understand there are waiver options available if a jointly filed I-751 petition is not a possibility.

In some instances the CPR will not meet the above waiver grounds, such as where the CPR and U.S. citizen spouse are legally separated or pending divorce proceedings during the 90-day filing period. If an I-751 petition is jointly filed by a couple who are married but legally separated or pending divorce proceedings, they will be issued a“request for evidence” with an 87-day response period. If the marriage is terminated during the response period, the CPR may submit a copy of the divorce decree along with a request that the joint filing petition be treated as a waiver petition. If the CPR cannot establish the marriage has been legally terminated, USCIS will consider whether sufficient evidence of a “good faith”was presented to merit approval of the I-751 petition.

Separation or the initiation of divorce proceedings may serve as proof that a marriage was entered into for immigration purposes; however, an I-751 petition may not be denied solely because the spouses are separated or have initiated divorce or annulment proceedings.

Michigan SOS changes course on driver's license policy

On February 1, 2013,  Michigan Secretary of State Ruth Johnson on a policy that would have denied Deferred Action for Childhood Arrivals (DACA) beneficiaries’ access to a Michigan driver’s license or state identification card.  Johnson’s new policy allowing DACA recipients to obtain a Michigan driver’s license will take effect on February 19, 2013. 

In October, Johnson stated unequivocally that the Secretary of State office would not issue drivers’ licenses or state identification cards to DACA beneficiaries because she did not believe DACA beneficiaries were legally present in the country. Her position made Michigan one of only three states that would not issue licenses to DACA beneficiaries. Further, the position failed to recognize the distinction between lawful status and lawful presence. Consequently, immigrant rights groups have been criticizing Johnson’s policy decision since she announced it.

However, on January 18, 2013, the United States Citizenship and Immigration Service released an expanded statement explaining the legal status of DACA beneficiaries. Also on January 18, 2013, the American Civil Liberties Union announced that they had filed suit against Johnson.  Initially, Johnson had indicated that she would stay the course; however, after further consideration, she reversed the policy.

It is expected that there are approximately 23,000 individuals living in Michigan who stand to benefit for DACA protection.

I do. Now What? Marriage-Based Sponsorship for the U.S. Citizen–Foreign National Couple

Marriage to a U.S. citizen is one of the most common pathways to U.S. residency and citizenship for foreign nationals. However, it is not as easy as just being married to a U.S. citizen. Many U.S. citizen–foreign national couples do not properly plan their marriage-based immigration pursuits, whether it is a U.S. citizen who wants his fiancée to enter the country with a matter of weeks, or the couple who marry abroad and realize it will take several months before the foreign national spouse obtains a visa to enter the U.S.

Devising an immigration strategy, and planning early in advance, should be a top priority for U.S. citizen–foreign national couples pursuing marriage plans. Some important considerations include the date and place of marriage, whether the couple wants to live together or apart after marriage, and potential travel restrictions.  

Generally speaking, there are several options for U.S. citizens seeking to bring their foreign national fiancées or spouses into the U.S. (or to keep them in the U.S.):

·       K-1 visa: U.S. citizen files a fiancé(e) petition with the U.S. Department of Homeland Security for the foreign national fiancé(e); the U.S. consulate abroad is notified when the petition is approved and issues the K-1 visa to the fiancé(e); foreign national fiancé(e) must enter the U.S. during the 180 day validity period of the K-1 visa; the couple must marry within 90 days of the fiancé(e)’s entry into the U.S. and then file for the fiancé(e)’s lawful permanent residence (“green card”)

·       I-130/Consular Processing: U.S. citizen files an immediate relative petition with the U.S. Department of Homeland Security for the foreign national spouse; the U.S. consulate abroad is notified when the petition is approved and the spouse completes immigrant visa processing with the consulate abroad; foreign national spouse must enter the U.S. during the 180 day validity period of the immigrant visa; the spouse enters the U.S. as an immigrant (“green card” holder)

·       I-130/I-485: If the foreign national spouse is in the U.S. (and entered the U.S. legally), the couple files an immediate relative petition together with an application to “adjust status” (“green card”application) with the U.S. Department of Homeland Security; must be cautious if the spouse enters as a visitor (e.g., B1/B2 or Visa Waiver Program) because the spouse must have “visiting intent” (not “immigrating intent”) upon entry; must also be aware that the spouse may not leave the U.S. during case processing without first applying for permission to travel 

It is important to note that for marriages less than 2-years old at the time of approval, the foreign national spouse will receive “conditional” permanent resident status, or a 2-year “green card.” The foreign national spouse must file a petition before the 2-year expiration of the conditional green card, requesting the removal of conditions by showing the marriage was entered into in “good faith” and not for immigration purposes.  

For more information on marriage-based sponsorship, please contact our office.

Provisional Unlawful Presence Waivers of Inadmissibility

On March 30, 2012, the Obama administration announced an immigration provisional waiver process that would benefit undocumented family members of U.S. citizens. The process will be implemented on March 4, 2013, and will affect thousands of individuals in the United States who seek to resolve their immigration status.

The waiver process applies to individuals who entered the United States without inspection, who are “immediate relatives” (parents, spouses, and children under the age of 21 and unmarried) of U.S. citizens. Generally, these individuals are not eligible to apply for Permanent Residence (“green cards”) while in the United States because of their undocumented entries and unlawful presence in the country.

Under the existing waiver process, immediate relatives must depart the United States to appear for an immigrant visa interview at a U.S. consulate abroad, where they face lengthy processing times and uncertainty about whether a waiver will be granted. Many immediate relatives are reluctant to depart the United States, thus triggering a 3- or 10- year bar from returning to the country, to seek an immigrant visa and waiver abroad. Unless the waiver application is granted, the individual cannot return to the United States until the 3- or 10- year bar is fulfilled.

The benefit of the new provisional waiver process is that eligible immediate relatives may apply for a waiver prior to departing the United States. The applicant must still travel abroad to obtain an immigrant visa after the waiver is granted; however, the consulate may issue the visa without further delay. This process will avoid lengthy separations from family and curtail safety concerns for those abroad. 

To qualify for the provisional waiver process, an applicant must satisfy the following criteria:

·       The applicant is an immediate relative of a U.S. citizen
·       The applicant is the beneficiary of an approved immediate relative petition
·       The applicant paid an immigrant visa processing fee
·       The applicant is physically present in the United States to file the application and attend biometrics
·       The applicant’s immigrant visa interview is not scheduled prior to January 3, 2013
·       The applicant establishes that the denial of the waiver would result in “extreme hardship” to his/her U.S. citizen spouse or parent
·       The sole ground of inadmissibility is unlawful presence (e.g., no criminal inadmissibility)
·       If in removal proceedings, proceedings must be administratively closed and/or terminated at the time of filing the waiver application

U.S. Citizenship and Immigration Services will begin accepting applications on March 4, 2013. The filing fees remain the same as the existing waiver fees, and no fee waivers will be permitted. If you have a pending immigrant visa case at the National Visa Center, the agency must be notified after processing fees are paid and before the waiver application is filed so that an immigrant visa interview appointment is not scheduled until the waiver application has been processed.

If you believe that you may be eligible for the provisional waiver process, or would like assistance with a waiver application, please contact our office.

ImmBrief: Provisional Waiver Rule Announced!


On January 2, 2013, USCIS released the final version of the so-called "provisional waiver" rule.  The final rule establishes a process that allows certain individuals to apply for a provisional unlawful presence waiver from within the United States.  The individual seeking the waiver will still need to attend an immigrant visa interview in their countries of origin to complete the immigrant visa process.  The final rule will take on March 4, 2013.

Full analysis and commentary to come.  If you are thinking of pursuing an immigrant visa abroad for yourself or a family member, contact an immigration attorney to discuss how this rule can help. 

Living in the United States as an Undocumented Person

Illegal. Undocumented. Without papers. It doesn’t matter what you call it, it is difficult when you are living in constant fear of deportation from the place you call home. The unfortunate reality seems to be that this fear is not going away any time soon, but that doesn’t mean that you are powerless to control your destiny. There are many things that you can do to ease the uncertainty of your future.

1. Know Your Rights. Several organizations have put together comprehensive presentations outlining the rights of individuals who are faced with questioning by immigration officers and many organizations host Know Your Rights seminars at churches and community organizations.

2. Talk to an Attorney. If you are undocumented, it helps to know what your options would be if you were to be taken into immigration custody. Therefore, I encourage all undocumented persons to set up an in-person meeting with a competent immigration attorney to review your situation. You may have a pay for such a consultation (typically between $0 and $250 depending on the depth of the review), but it is worth it. Not only will it give you a clear idea of your options so that you can formulate a contingency plan, but it will allow you to start building a relationship with an attorney who may be able to help you if you are ever detained. After your meeting, check back with the attorney once per year to find out if there have been any changes to the law.

3. Gather Your Documents. Even if you choose not to meet with an attorney, you should gather all of your important documents and put them in a single, secure, safe location. Typically, the following types of documents or information will be helpful to someone trying to help you:



·        Your Identity Documents. Include your birth certificate with English translation, your original passport, and copies of any photo identification (expired or otherwise) you possess.

·        Identity Documents for Immediate Relatives. Include your marriage certificate, birth certificates for your spouse, children and parents, and proof of citizenship for any US citizen relatives.

·        Names and Telephone Numbers of Friends, Family, and Co-workers. Many people keep this information in their cell phone these days. In a custody situation, your phone will often be stored with your personal property, making the information in it difficult to access for people trying to help you. Therefore, I highly suggest that you keep a written list of people who may be able to help you with money, character letters, or anything else you may need if you are arrested.

·        Evidence of Your Current Address. I encourage everyone to keep copies of their current bills and statements.

·        Evidence of Your Time in the United States. Gather things like old pay stubs, old mail, or anything that has your name and a date so that you can prove you were in the US on a given date.

·        Evidence of Property or Assets in the United States. Include items such as the title to your car, the deed for your house, and bank statements.

·        Income Tax Filings.  Gather proof that you have properly paid and filed your income taxes. 

·        Information Relating to Prior Arrests or Criminal Charges.  If you have ever been arrested, obtain copies of the police report (or ticket) from the police department and the register of actions from the court that handled your case.

·        Any Other Information You Believe is Important.  Do you or your family members have a medical condition?  Do you contribute or volunteer in the community in any way?  Are you enrolled in school or taking ESL classes?  Think of things that you would like an immigration judge to know about you if you were asking for a bond and include documentation about these things.

·        Names of Attorneys.  Put together a list of two or three attorneys that you trust so that whoever is helping you can contact an attorney that you know can represent your interests.

4. Tell Someone About Your Plan. Tell a trusted friend or family member where to find your important documents and who they should contact in case you are arrested.

5. Set Aside Money. You will need money to pay attorney fees, filing fees, and possibly a bind if placed into removal proceedings. Set aside a rainy day fund in case the need arises.

Confronting the possibility of immigration detention can ease your present fears and make any future problems easier to deal with.

If you would like to schedule a consult with an experienced immigration attorney about your options if you are detained, contact our office. 



The Elusive “Commuter Green Card”

U.S. Permanent Residents (“green card” holders) must generally maintain a permanent residence in the United States, and consider the United States their “home” country. Permanent Residents may freely travel abroad for short-term purposes, but must maintain home country ties to the United States, or risk abandoning their resident status.
“Commuter green card holder” (“commuters”) are the exception to the general rule. These individuals are Permanent Residents who commute regularly to work in the United States who reside in Canada or Mexico. “Commuter” status allows these individuals to live in Canada or Mexico, while working in the United States, without risking abandoning their resident status. The Code of Federal Regulations at 8 CFR §211.5 delineates the criteria for alien commuters.
 
Commuter status is only available for immigrants living in Canada or Mexico, and does not apply to immigrants living or commuting from a third country. An individual may request commuter status while pursuing the immigrant visa process through a U.S. consulate.
 
Those individuals who have already been granted permanent resident status may change their permanent resident status to commuter status by filing an Application to Replace Permanent Resident Card (form I-90).
 
Once granted commuter status, the individual will receive a commuter card, which is similar in appearance to the permanent resident card, but contains the code “C2” for commuter. Every six months, the commuter must appear at a port-of-entry to complete a form I-178, and provide proof of both continuous employment in the United States, and residence in Canada or Mexico. In order to maintain status, the commuter must prove employment in the United States for at least 90 days per year. Extended unemployment may lead to a loss of commuter status.
 
The “commuter green card” is an elusive concept, and it may be overlooked as a viable option for Canadians and Mexicans who seek to pursue employment or business in the United States, while residing in Canada or Mexico.   

For more information regarding commuter status, please contact our office.    

The Immigrants' Guide to the Polls in Michigan: Prohibitions Against Voting for Non-citizens

For all non-citizens including green card holders, non-immigrant visa holders, and undocumented individuals, voting is strictly off limits. The overwhelming majority of non-citizens understand this fact and stay away from the polls on election day.   

But, it is important to note that non-citizens are also prohibited from registering to vote in federal and Michigan elections. The Michigan Secretary of State estimates that approximately 4,000 non-citizens are currently registered in Michigan, although very few (if any) non-citizens actually voted in any election. 

In Michigan, most individuals register to vote at a Secretary of State Branch Office while renewing their driver’s license or license plate.  Usually the clerk will ask if you would like to register to vote.  If asked this question, simply say “no, thank you.”  You do not have to give the clerk any explanation, just say, “no, thanks” and they shouldn’t give you the application to register.

Saying “no” won’t guarantee that you won’t end up with an application to vote in front of you. A clerk can easily make a mistake and give someone an application to register to vote that they didn’t ask for.  Therefore, it is important to pay attention to everything you are asked to sign.  Do not sign anything if you don’t know what the document says or what it will be used for. 

Registering to vote or voting before you are a citizen can have serious immigration consequences, even if you did not intend to register or were misinformed about your voting rights.  If you believe you have accidentally registered to vote or voted, contact an immigration attorney immediately so that they can properly advise you on how to best address the issue.
 
Posted By:  Heather L. Garvock, Immigration Attorney
 

The Immigrants' Guide to the Polls in Michigan, Part 1: What to Expect as a New Voter

As the presidential election draws closer, voting is on the minds of many people living in the United States.  For many foreign-born individuals, voting can be confusing and sometimes intimidating.  As with anything, knowing your rights when it comes to voting can make the process a little less so.

It is important to understand that if you are a citizen of the United States, you have the right to vote if you want to.  It does not matter if you are a citizen by birth, acquisition, or naturalization, you are permitted to vote in federal and Michigan elections.  If this is your first time voting in an election, this guide will outline the voting process to ensure that your first Election Day goes smoothly:

1.  Register to vote.  You may register online, through the mail, or at any Michigan Secretary of State branch office.  In Michigan, you had to register by October 6, 2012 in order to be eligible to vote in the November 6, 2012 election.  If you missed the deadline, register to vote now anyway so that you can be sure you are registered to vote in time for future elections.

2.  Allocate adequate time to vote. The polls are open from 7:00 AM to 8:00 PM.    Polls tend to be the busiest in the mornings as people vote before going to work.  Michigan voters can expect a lengthy ballot this year, so plan accordingly. You can review your sample ballot on the Michigan Secretary of State's online Voter Information Center, which may make things a little quicker in the voting booth.

3.  Go to the right polling place. You must vote at the polling location you are assigned to.  This is determined by where you are registered. Shortly after registering to vote, you should have received a Voter Registration Card in the mail, which lists the name and address of the polling place you are assigned to. If you did not receive a Voter Registration Card or you have lost it, don't worry; you can still vote without it. You can locate your polling place by visiting the Michigan Secreary of State Voter Information Center.

4.  Check-in at the polling location and get your ballot. When you arrive, a poll worker will ask for you identification.  They will check your identification and find your name on the list of registered voters.  If you do have photo identification, you may still vote if you sign an affidavit stating that you do not have photo identification with you.  You cannot be denied a ballot because you do not have identification with you.

If the poll worker says that you are not on the registered voter list, don't worry, you are still entitled to cast a ballot.  Iyou have your Voter Registration Card, show it to the poll worker and make sure you are in the right polling place.  You may also politely ask the poll worker to check the spelling of your name and look again.  If you there is commonly confusion about your name, such as you have a hyphenated last name, two last names, or your last name is frequently confused with your first name, you may explain this to the poll worker and make sure they are looking in the right place for your name.  If you are sure that you are in the right polling location but the poll worker still can't find your name on the list, you may request be allowed to swear and oath about your belief that you are registered so that you can receive a provisional ballow.  If you are confused or need help, as a poll worker to direct you to a poll watcher, who may be able to help you.

This election season, there has been a great deal of controversy  about asking Michigan voters to affirm their United State citizenship prior to receiving a ballot. During the August primaries, some voters were asked to affirm their citizenship while others were not. Recently, a judge ruled that voters should not be required to affirm their citizenship prior to receiving a ballot, so you should not be asked this question.

However, the judge's ruling does not guarantee that you will not encounter a poll worker who is misinformed. If you are asked to affirm your citizenship verbally or show proof of your citizenship, do not be intimidated. You may answer the questions necessary to establish your eligibility under oath, and once you have answered the questions truthfully, you are entitled to a regular ballot to cast your vote. In Michigan, you may be asked for photo identification; however, you should never be asked for proof of citizenship or denied a ballot because you do not have identification.  If asked, do not be intimidated.  Insist that you be allowed to vote on a regular ballot.

5.  Vote.  Once the poll worker has found your name on the list of registered voters, the poll worker will assign you a ballot by writing your ballot number next to your name.   The poll worker will then give you a ballot inside a folder with only a numbered tab sticking out so that it is visible.  The poll worker will direct you to a voting booth.  Once in the booth, follow the posted instructions to complete your ballot.  If you make a mistake, you may ask for a new ballot.  As previously noted, the Michigan ballot is expected to be lengthy for 2012, so it may be wise to review a sample ballot before going to the polls.

6.  Make sure your vote counts.  Once you are done, place your ballot inside the privacy folder and take it to the ballot counter.  A poll worker will remove the number from the top of your ballot (this will make your ballot anonymous but allow them to track who voted in the election).  The poll worker will instruct you to feed your ballot into an electronic vote counter.  Watch the counter on the tabulator to ensure your ballot is accepted by the vote counter.  If it is rejected, ask for a new ballot.

7.  Report any problems.  If you feel intimidated or harassed at the polls,  tell a poll worker.  If a poll worker is the cause of your concern, report the issue to your local clerk, or the Michigan Bureau of Elections. 

For more information on your rights on Election Day, visit the Michigan American Civil Liberties Union website and review their "Know Your Voting Rights Card," which can be printed out to take with you on Election Day.

DREAMers Update: USCIS Approves Nearly 4,600 Requests for Deferred Action

On August 15, 2012, U.S. Citizenship and Immigration Services (USCIS) initiated a program for individuals commonly known as “DREAMers” to request Deferred Action for Childhood Arrivals (“DACA”). This program temporarily halts deportation for qualifying DREAMers and allows them to apply for work authorization. To qualify for DACA, an applicant must have arrived to the United States before the age of 16, be under the age of 31, have lived in the United States for the past five years, be enrolled in school or have a high school diploma, and pose no safety threat to the United States.
 
According to USCIS, nearly 4,600 DACA requests have been approved. The statistics represents a period from August 15, 2012 until October 10, 2012. Since the application start date, approximately 180,000 applicants have submitted requests for this program.

 The latest statistics show a sharp increase in the number of applications accepted since the first month of the program when only 29 requests were approved, and a just over 82,000 applications accepted for processing. According to the Migration Policy Institute, an estimated 1.7 million undocumented immigrants nationwide could be eligible for this program.

 Although USCIS started notifying applicants of decisions on their requests, the anticipated processing time is expected to average between four and six months.

The question remains whether DREAMers will still benefit from DACA if there is a change in administration following the November 6th presidential elections. While Governor Mitt Romney indicated he would keep some DACA initiatives in place if he becomes president, including allowing those already approved for DACA to benefit from the program’s protection, it is unclear whether pending or new applicants will benefits from the program.   
 
If you believe you qualify for DACA, or would like assistance with a DACA request, please contact our office.
 

 

MI SOS says no driver's licenses for DACA beneficiaries

On October 11, 2012, the Michigan Immigrant Rights Coalition (MIRC) sent a Policy Update stating the Michigan Secretary of State will not issue driver's licenses or state identification cards to those who receive authorization under the Deferred Action for Childhood Arrivals (DACA) program. According to the Policy Update, the Michigan Secretary of State pointed to language in the Michigan driver’s license statute referencing the alien’s “legal presence in the United States.” The Michigan Secretary of State’s announcement dealt a difficult blow to Michiganders seeking the protection under the DACA program, many of whom had hoped that DACA protection would allow them to lead a normal life. It is especially painful in light of the decisions of other states to issue driver's licenses to DACA beneficiaries.
The decision also presents a number of legal issues. The most notable of which is that the concept “legal presence” as appears in the Michigan statute does not have a direct counterpart in the federal immigration statute. Instead, the federal immigration statute refers to the two distinct concepts of having “status” in the United States and being “unlawfully present” in the United States.

A PhD student could write an entire dissertation on these two concepts, but I am going to cut straight to the heart of my personal issue with how the law is being interpreted here. The most logical argument is that “legal” presence is the opposite of “unlawful” presence. In other words, one should be considered to be legally present under Michigan law as long as they are
not considered unlawfully present under the federal law. The USCIS written statements regarding DACA clearly indicate that DACA beneficiaries are not considered unlawfully present for the period of deferred action.

Now, one can argue that the Michigan statute refers to the narrower concept of having “status” in the United States. The federally issued statements regarding DACA do state that DACA beneficiaries are not considered “in status” for the purposes of immigration law. Historically, Michigan has not taken the status approach when deciding who is entitled to a driver’s license. For example, there are many aliens who are in removal proceedings, who do not have status, but who can receive work authorization based on the applications for relief that they have submitted to the government. It has been my experience such individuals are routinely given a driver’s license upon presentation of their valid, unexpired Employment Authorization Document and a valid Social Security number.

Thus, it seems that the Michigan Secretary of State has embarked on its own adventure in legal reasoning when it comes to interpreting the law. Given this has led an interpretation that simultaneously relies and shirks federal immigration law, I am hopeful that this interpretation will not last. With any luck, as more DACA beneficiaries come forward, the Michigan Secretary of State will be forced to alter its position, either voluntarily or as the result of litigation.