Immigration Reform Updates: When Will It Happen?

Author: New York Immigration Lawyer Alena Shautsova

In the law office of Alena Shautsova, New York Immigration attorney, we help non-citizens to achieve their dreams to become US lawful permanent residents and citizens. Biden administration voiced their commitment to change the US Immigration System and do all in their power to deliver the Immigration reform. But the executive branch of the government is limited in its actions. Although changing USCIS policies will help thousands of people, the real relief can be brought by the legislative arm of the government or Congress only. Here, we will discuss some of the legislative proposals that were recently introduced or reintroduced by the President, Republicans and Democrats. I will share my thoughts regarding the possible success of the proposals and the latest news related to their status.

The US citizenship Act of 2021. This is the law that was proposed by President Biden. This proposal is very broad and if passed, would bring relief to pretty much every non-citizen who has been residing in the US since January 1, 2021. It has two main tracks: one is for those who do not have any status in the US and are not DACA, or TPS holders and are not agricultural workers. It proposes first a temporary residence for six years with an opportunity to file for permanent residence after five years. Once the person holds permanent residence for three years, he/she will be able to apply for naturalization. For DACA, TPS holders, and Agricultural workers it creates a direct path to green card. There are other significant proposals contained in this act, such as the elimination of the one-year asylum filing deadline, for example.  The only update we have with regard to its current status is that on April 28, 2021, it was referred to the Subcommittee on Immigration and Citizenship. In my opinion, it is unlikely that this proposal will pass in its current form, just because it is too broad, does not contain any limitations on the length of the residency required to meet the qualifications for temporary status, and I would treat it more as a conversation starter rather than the practical proposal that can be worked on.

The Dream and Promise Act of 2021, is a bipartisan bill, that would provide conditional permanent resident status for 10 years to  “dreamers”: a qualifying alien who entered the United States as a minor (18 years old or younger on the date of the entry) and (1) is deportable or inadmissible, (2) has deferred enforced departure (DED) status or temporary protected status (TPS) (resided in the US since January 1, 2017 in a TPS status), or (3) is the child of certain classes of nonimmigrants. The bill imposes various qualifying requirements, such as the alien being continuously physically present in the United States since January 1, 2021, passing a background check, and being enrolled in or having completed certain educational programs. DHS shall remove the conditions placed on permanent resident status granted under this bill if the alien applies and meets certain requirements, such as completing certain programs at an educational institution, serving in the military, or being employed. Furthermore, DHS and DOJ shall cancel the removal of certain aliens who had TPS, were eligible for TPS, or were eligible for DED status on certain dates. Such an alien shall receive permanent resident status upon meeting certain requirements and applying for such status within three years of this bill’s enactment.”

This Bill is much narrower in nature, is tailored for DACA holders, and TPS holders, rather than all non-citizens. For that reason, taking the conservative opposition, it has a real potential of being passed, perhaps with some modifications. The last action on the bill was performed on June 15, 2021 when hearings in the Senate took place.

Citizenship for Essential Workers Act 2021 is another great proposal that, if passed, will bring relief to millions, because it happened that millions of undocumented immigrants in the US are also essential workers, working in construction, health care and child care services, food preparation, delivery, trucking, restaurants, and retail businesses, etc. that served and saved the country during the COVID pandemic. The bill would grant adjustment of status or green card to anyone who can prove that they earned income during the pandemic, even if a person had a prior order of removal, as long as the person passes security background checks. An employer will have to confirm that the employee worked for them, facing severe sanctions in case of arbitrary refusal. The Bill would allow depends of the main applicants (sons, daughters, spouses, parents in certain situations, to benefit form it as well). The following sectors are covered by the bill:

“(A) Health care.

“(B) Emergency response.

“(C) Sanitation.

“(D) Restaurant ownership, food preparation, vending, catering, food packaging, food services, or delivery.

“(E) Hotel or retail.

“(F) Fish, poultry, and meat processing work.

“(G) Agricultural work, including labor that is seasonal in nature.

“(H) Commercial or residential landscaping.

“(I) Commercial or residential construction or renovation.

“(J) Housing, residential, and commercial construction related activities or public works construction.

“(K) Domestic work in private households, including child care, home care, or house cleaning.

“(L) Natural disaster recovery, disaster reconstruction, and related construction.

“(M) Home and community-based work, including—

“(i) home health care;

“(ii) residential care;

“(iii) assistance with activities of daily living;

“(iv) any service provided by direct care workers (as defined in section 799B of the Public Health Service Act (42 U.S.C. 295p)), personal care aides, job coaches, or supported employment providers; and

“(v) any other provision of care to individuals in their homes by direct service providers, personal care attendants, and home health aides.

“(N) Family care, including child care services, in-home child care services such as nanny services, and care services provided by family members to other family members.

“(O) Manufacturing.

“(P) Warehousing.

“(Q) Transportation or logistics.

“(R) Janitorial.

“(S) Laundromat and dry-cleaning operators.

As one can see, it is very broad. Most importantly, it would also help a parent, spouse, son, or daughter of a member of the Armed Forces, including the National Guard. The only continuing presence requirement to meet under this bill: is that a person has to reside in the US since January 1, 2021 and until the application is approved. Ineligible individuals will include those who: “(A) departed the United States while subject to an order of exclusion, deportation, removal, or voluntary departure; and

“(B) (i) was outside the United States on January 1, 2021; or

“(ii) reentered the United States unlawfully after January 1, 2021.

The last action on this bill was undertaken on May 12, 2021 when Committee on the Judiciary Subcommittee on Immigration, Citizenship, and Border Safety held hearings.

Farm Workforce Modernization Act of 2021. This is another bill that has a lot of potential due to its limited nature. Under the bill, DHW would grant a status an applying alien who “ (1) performed at least 1,035 hours of agricultural labor during the two-year period prior to March 8, 2021; (2) on that date was inadmissible, deportable, or under a grant of deferred enforced departure or temporary protected status; and (3) has been continuously present in the United States from that date until receiving CAW (certified agricultural worker)  status. The bill imposes additional crime-related inadmissibility grounds on CAW applicants and makes some other grounds inapplicable.” The status shall be valid for 5.5 years and may be extended. DHS may grant dependent status to the spouse or children of a principal alien. An alien with a pending application may not be detained or removed by DHS and shall be authorized for employment until DHS makes a final decision on the application. A CAW alien (and dependents) may apply for lawful permanent resident status after meeting various requirements, including performing a certain amount of agricultural labor for a number of years. The last action on the bill was March 22, 2021 when it was received in the Senate and read twice and referred to the Committee on the Judiciary.

In March of 2021, House Republicans also offered something called Dignity Plan, but the only information available so far is the draft of the main points. The text of the prosal draft is available here: https://files.constantcontact.com/1849eea4801/326f035f-8025-4a33-a40a-cbb3a5c06c46.pdf

Among the main points is that this proposal created a long-term path to a green card, includes a fine as a part of the application process, and provides a temporary status first for 10 years, with an opportunity to qualify for a  green card later.

There are the main proposals with real potentials to be adopted, at least in parts. As one can see, so far the latest action on any of them was performed in mid-June.  Taking into consideration Democrats’ voiced attempts to try to pass some Immigration provisions as a part of the budget voting, it can be expected that any future meaningful actions shall be undertaken no earlier than Fall of 2021.

In the meantime, one can try to benefit from the ICE/DHS prosecutorial discretion and changed USCIS policies that may bring at least temporary relief.

f you need help with Immigration challenges in the US, book a confidential consultation by calling 917 885 2261. (Consultation fees apply).

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Author: New York Immigration Lawyer Alena Shautsova

Alena Shautsova, New York Immigration lawyer helps her clients to understand the United States Immigration laws and navigate the complex Immigration system.

There are thousands, or perhaps millions of asylum applications that have been filed in the United States in the past decade. Many of those applications are so-called “affirmative” asylum applications: applications filed before USCIS Asylum office. In the affirmative asylum process, a person may wait for their Asylum interview for years, and in very rare instances decades. At times, during the wait time, a person’s personal situation may change: a person may divorce and remarry, a person may marry, etc. The question many ask is if it is possible to receive a marriage-based green card if a person has “asylum pending status”.

The answer depends on several factors, related to a person’s admissibility because different qualifications are used by USCIS to determine if a person qualifies for asylum and if a person qualifies for adjustment of status based on marriage. When a person files for asylum, it does not matter if he/she crossed the border or entered the United States legally: the manner of entry is not an issue for the asylum qualifications. But it matters a lot for adjustment of the status case: only a person who can demonstrate that he/she was inspected and admitted or inspected and paroled may adjust status in the United States (with some very few exceptions).

Another important consideration to keep in mind is if a person will need waivers for adjustment: for example, a person who files for asylum may qualify for it even if he/she entered the country with fraudulent documents, or has certain criminal convictions. But an applicant for adjustment of status, in a similar situation, may require a waiver, which may be hard to qualify for.

Finally, the marriage must be of course bona fide and with a US citizen due to the fact that the adjustment is possible only if a person maintains non-immigrant lawful status throughout his/her time in the United States. There is only one exception from this rule: it is the adjustment of status for immediate relatives (spouses of US citizens, children of US citizens under 21, and parents of US citizens).

There may be some other important factors to keep in mind while trying to adjust status in the United States, and for that reason, a person should at least consult with an attorney before submitting their Immigration petitions and applications to USCIS.

What if you can adjust and you are married? In this case, if you are still under the jurisdiction of the USCIS (most cases whose interview has not been scheduled yet), you will need to prepare and submit to USCIS the adjustment package (usually, includes forms I 130, I 130A, I 485, I 765, I 864). USCIS will issue the receipts and with time, will call the couple for the interview.

Many are asking: is it possible to withdraw the asylum application in such a situation. Of course, you always have a right to withdraw your asylum application. But you cannot erase it from your history. Normally, a person would wait for the green card to be approved and then would ask USCIS to withdraw or dismiss their asylum case. But each person’s situation is different, and he/she should consult with an attorney prior to submitting the request for withdrawal.

Now, even if you were transferred to court, and you marry a US citizen, you still may have a chance to adjust your status, but the way you submit your applications with USCIS and EOIR (Immigration Court) now will be different. Also, your burden of proof for the real marriage will be higher.

If you need a consultation on how to change your asylum pending status, give us a call at 917 885 2261 to reserve your confidential appointment. (Note, all appointments are subject to a fee).

Block on Asylum Ban Puts Trump on Ice

Author: NYC Immigration Lawyer Alena Shautsova

Throughout his time in office, President Trump has been waging war with anyone who dares attempt to claim refugee status in the United States. Whether it has been his policy of detaining and separating children from their families, in what can only be described as concentration camps; or his administration’s attempt to strip asylum seekers of their humanity by detaining them almost indefinitely, after they had passed their ‘credible fear’ interview. Trump’s administration has presided over the purposeful disregard for international law and its moral responsibility to protect those who arrive at its door seeking safety.

If we were to list every legal and regulatory wall erected by this administration we might be here all day. So, let’s skip to Trump’s cherry on top – his almost wholescale ban on asylum claims in July 2020 via changes to the regulations around the so-called ‘credible fear’ screening that new self-referrals are subjected to upon entry to the country.  

Upon entry to the US, an asylum officer from the USCIS conducts an interview designed to identify whether there is a “significant possibility” that the person in question has a “well-founded fear of persecution or harm on account of his or her race, religion, nationality, membership in a particular social group, or political opinion if returned to his or her home country.” Since July, the interpretation of what kind of applicant might meet this set of criteria has been severely narrowed.

Changes made by the Department of Homeland Security’s Chief Executive, Chad Wolf to the regulatory framework governing the interpretation of US law and, consequently,  the operation of ‘credible fear’ interviews, have lead to the denial of almost all asylum cases since July. In a letter to the DHS, Human Rights Watch state that Chad Wolf’s intervention has changed the way that “a particular social group” is defined, putting it at odds with the pre-established legal definition.

Now, when a ‘credible fear’ interview takes place, interrogators no longer understand “a particular social group” in the broader sense in which it was prior understood. Self-referring refugees must be seeking sanctuary from persecution as a consequence of just their race, religion, nationality or political opinion – without consideration of the fact that being part of other types of ‘social groups’ might cause a ‘credible fear’. According to Human Rights Watch, this will weigh heavily against applications from Central America, where, for some, gang culture is a necessary means of existence. It will hamper applicants seeking refuge due to their gender or sexuality. In some parts of Uganda, to be openly gay is to sign a death warrant. After being publicly shamed, a gay man, or woman, can be maimed or murdered. The changes in interpretation as to what should constitute a “particular social group” by law, will mean almost certain deportation for these people back to the snake pit from which they have fled.

Now the U.S. District Court Judge, James Donato has placed a block on the further operation of this rule.

He explained that the regulatory change sought to seriously alter the grounds on which people were able to qualify for asylum. And, if rejected asylum applications did find themselves before a court, the government’s measures had greatly broadened immigration adjudicators’ scope for dismissing their case. Thanks to this administration, winning the possibility of staying in the US has become incredibly unlikely.

Donato’s block was sought on procedural grounds, on the basis that Homeland Security Chief, Chad Wolf wasn’t properly appointed and, therefore, had no legal prerogative to issue the rule. Judge James Donato highlighted the arguments made on the government’s side in prior cases in defense of Wolf’s legitimacy: “In effect, the government keeps crashing the same car into a gate, hoping that someday it might break through.”

With only days until the next President’s inauguration, this rule is likely to be replaced by a more friendly culture at the DHS and USCIS. Joe Biden and his incoming clan have already pledged to raise the ceiling on how many refugees are allowed in from 18,000 per year to 125,000. Biden’s camp has made platitudinal noise about ‘righting wrongs’ and eliminating Trump policy with the finest ‘stroke of a pen.’ This might not be as easy as the Biden Administration thinks. Without swift legislative intervention, change may take some time. The legal and regulatory frameworks have been severely altered. If this administration does all the heavy lifting on immigration policy from the Oval Office, change might be slow and even suffer legal dispute.

Author: NYC Immigration Lawyer Alena Shautsova

Department of Homeland Security and Department of Justice published final rules regarding barring asylum to those who on their way to the United States transited through a different country. The new rule goes into effect on January 19, 2021.

To qualify for asylum, an applicant will have to demonstrate that either he/she filed for asylum or similar protection in one of the countries she transited through on the way to the USA, and received a final judgment of denial; or that the alien is the victim of severe human trafficking; or that all the countries the person transited through are not part to the International treaties protecting refugees: 1951 United Nations Convention Relating to the Status of Refugees or the 1967 Protocol relating to the Status of Refugees.

The rule will be applied to those asylum seekers who enter or attempt to enter the United States across the southern land border. It will be applied to all asylum seekers who do not meet exceptions, including unaccompanied minors. The rule will be used in connection with credible fear screening as well, necessary limiting the number of persons who may qualify to see the judge.

A usual route for someone from Central America would include crossing Guatemala and Mexico. These countries traditionally are not considered safe for asylum seekers, and as a rule, persons who are fleeing violence would not seek protection in Guatemala, where there is a high crime rate and violence of its own.

Note that this rule will not be applied to those entering the US via airports, or by the sea, entering the United States at other borders.

This new rule adds on to the incoming restrictions and modifications for asylum eligibility that will go into effect on January 11, 2021.

If you need help with an asylum case, call us at  917 885 2261 to reserve a confidential consultation.

Author: US Asylum attorney Alena Shautsova

Alena Shautsova, NYC based, US Asylum attorney helps clients to identify potential evidence in support of their asylum claims and helps to argue that the evidence shall be admissible in cases where the evidence is challenged on the grounds of relevancy, authenticity, or weight.

What evidence can be used in support of one’s asylum claim in the US? This is one of the most popular questions I receive every day from US asylum seekers. The evidence may range from the types: letters, photos, copies of forms, applications, medical records, but also may range in the likelihood of acceptance and weight.

First, one should know that in the US Federal court system there are rules of evidence: that is written rules which all participants of the court process (people, judges, and the prosecutors) should follow. In the “regular” , non-Immigration court, such rules have strict guidelines, for example, hearsay would not be allowed to be used by any of the parties (hearsay is a statement made out of court offered for the truth of the matter asserted. ) But in Immigration court, the same rules are more relaxed, and hearsay are often used by both the respondents (person who is placed in removal proceedings), and prosecutors.

One of the types of evidence we use in asylum cases is documents or documentary evidence. When we work with documents, we need to follow the rules of evidence and be mindful that any documents that can be produced in support of one’s asylum case can be questioned by the prosecutor or the judge on the grounds of authenticity (if it is a real, unaltered document), relevancy (if it relates to the claim), weight (if it contributes to the person’s burden of proof or shall be disregarded as biased),

In support of one’s asylum claim, a person may present a variety of documents: police and medical records, declarations and affidavits by witnesses, family, and friends, country conditions reports, etc. Often, an asylum applicant is afraid that the documents will be leaked to his/her government. But how then the US government can verify the documents without showing them to the authorities of one’s country?

The US government has established criteria for determining when its own investigative documents and reports are reliable, and they have to identify: 1). the investigator and his/her qualifications; 2). the objective and extent of investigation; 3). the methods used to verify the information discovered. Memo. Cooper, G.C. “Confidentiality of Asylum Applications and Overseas Verification of Documents and Application Information.” As such, the U.S. government can and often will investigate the documentary evidence presented by the asylum applicants to verify their authenticity. Often it is done via consular reports.

The standard for documents’ credibility is the same as for the testimony: and any adverse decision must be based on specific, cogent reasons that bear a legitimate nexus to the finding.” Zahedi v. INS, 222 F3d 1157, 1165 (9th Cir. 2000). However, if an applicant present forged documents, that affects his/her credibility in the absence of explanation or rebuttal. The use of fraudulent documents to escape the country of persecution has been recognized as not fatal to one’s asylum claim. Matter of Pula, 19 I&N Dec. 467, 474 (BIA 1987).

Moreover, hearsay documents cannot be the basis for adverse credibility findings. (Consular report that the Russian’s birth certificate did not conform to the Russian records failed DOS’ own standards and lacked the name and title of the investigator, Balachova v. Mukasey, 547 F3d 374, 382-383 (2d Cir. 2008).

Now, the judge may not exclude the documents and then rule that the lack of the documents is a basis for adverse credibility findings. Notably, in the US, a document may be authenticated via various means:

Certification procedure stated in 8 CFR 287.6;

Fed R. Evid. 902(3)

Fed R. Civ. P. 44

An expert may authenticate a document; and

The inherent reliability of the document (business record exception to the hearsay rule, for example).

A common question herein would be: must affidavits be notarized? Notably, no. Affidavits may not be notarized. First, a person may use an exception to the notarization requirements: under the US Federal law, a sworn declaration may have the same weight as a sworn affidavit. But Immigration courts also may accept unsworn letters as authentic statements: an author may be in grave danger and would not risk his/her life going to the notary public to authenticate his/her signature. Note, however, that the judge would be the ultimate ruler regarding the admissibility of the evidence: at least one judge refused to accept letters by friends and family members stating that such letters were not objective. Djadjou v. Holder, 662 F3rd 265, 276 (4th Cir. 2011).

Finally, statements and reports, by both the applicant and the government, may be challenged for factual inaccuracies or because they represent highly unreliable hearsay. Grigoryan v. Barr, 959 F 3d 1233, 1240-43 (9th Cir. 2020).

That is where the skill and knowledge of your attorney may be particularly helpful and may bring that victory which every applicant for asylum is hopeful for.

If you need help with an asylum claim, please call our New York office to reserve a confidential consultation at 917-885-2261.