Immigration Concepts

1. Immigration Concepts What Cobb County ESOL Educators Should Know Prepared by Tracie L. Klinke, Esquire Klinke Immigration, LLC

2. Overview • Key Definitions • Government Agencies • Status • Deferred Action for Childhood Arrivals • Family-Based Immigration

3. Key Definitions

4. Key Definitions • Adjustment of Status • Obtaining a “green card” aka Lawful Permanent Resident Status in the United States. Unavailable to most immigrants who entered the U.S. without an admission. • Admission • When an alien is physically and legally allowed to enter the United States. Done by a Customs and Border Protection. • Asylum • Allowed for aliens who fear persecution in their home country based on race, religion, nationality, membership in a particular social group, or political opinion. Generally must be filed for within one year of entry to the United States. A Refugee is someone who has been granted this status outside of the United States. Asylum is for someone seeking status once in the United States.

5. Key Definitions, Cont. • Consular Processing • Applying for an immigrant visa (“green card” or lawful permanent resident status) outside of the United States. Generally must be done by those who entered the United States without an admission. • Deportation • Generally now called “Removal.” It is the removal, or ejectment of a person from the United States. Deportation Proceedings or Removal Proceedings are the terms commonly used to describe the court process of determining whether a person can remain in the U.S. or not. In Atlanta, proceedings can take several years. A person can have a deportation order, but still be in the United States – it depends on how much of a priority it is to arrest, detain, and put someone on a plane. • Employment Authorization Document (EAD) • “Work card.” A document that demonstrates a person is authorized to work in the United States for a specific amount of time. May be renewed depending on situation. Having one makes it possible to get a Social Security Number and Georgia Driver’s License.

6. Key Definitions, Cont. • I-94 Card • Entry document that shows person was inspected at the border. Has notes on it to show the type of status and the date of expiration. This dictates the rules a person must follow while in the United States. Once expired, unlawful presence starts to accumulate. • Immigrant • A person who is a lawful permanent resident of the United States. Has intent to remain in the U.S. for an indefinite period of time. • Immigration Judge • Person responsible for presiding over removal hearing. He/She is and administrative judge, much like a judge in traffic court. • Lawful Permanent Resident (LPR) • A person granted the benefit of remaining in the United States on a permanent basis. May be employed without special authorization, but cannot vote in the U.S. May be taken away if convicted of certain crimes.

7. Key Definitions, Cont. • Naturalization • The conferring of nationality of a state/country upon a person after birth. Can only get this after being a LPR for a certain amount of time. • Nonimmigrant • A person who is in the U.S. for a temporary period, has a residence established abroad, Examples of classification are: students, tourists, and foreign government officials. • Unlawful Presence • Time spent in the U.S. beyond authorization. Began counting on April 30, 1997. Does not count against those under 18 or those granted “Duration of Status” on their visa. More than 180 days of unlawful presence is a three-year bar and more than 360 days is a ten-year bar to returning to the U.S. • Visa • An official endorsement by the Department of State stating that the applicant may be allowed into the U.S. for a specific purpose. Does not guarantee entry to the United States. Visas can expire in the United States without hurting the foreign national.

8. Government Agencies

9. Government Agencies • Immigration and Nationality Services (INS) – Gone • Department of Homeland Security (DHS) • United States Citizenship and Immigration Services (USCIS) • Adjudicate applications, determines benefits • Customs and Border Protection (CBP) • Determines if a person will be allowed into the United States at the Port of Entry • Immigration and Customs Enforcement (ICE) • The arresting and enforcement component of DHS. Also conducts investigations on human trafficking. ICE attorneys are the government attorneys in Immigration Court proceedings. • Department of Justice • Under direction of U.S. Attorney General. Designed to enforce the law, ensure public safety, seek punishment against those guilty of unlawful behavior. • Executive Office for Immigration Review (EOIR) • Includes Immigration Court and Immigration Judges • Department of State (DOS) • Oversees U.S. Consulates and Embassies abroad. Consular officers make determinations on whether or not a foreign national may be granted a visa to come to the United States.

10. Types of Status

11. Status • Many different types of status • Undocumented • Entered the U.S. without proper inspection and admission. No visa, no status. Unlawful presence generally starts from day one in the United States. • Overstay • Entered the U.S. with a proper visa, but stayed longer than the authorized time shown on the I-94 card. Will generally start to accumulate unlawful presence after authorization ends. • Temporary Protected Status • For certain countries designated by the U.S. government. Allows residence and work authorization in the U.S. because it is too dangerous to return home. • Deferred Action Status • General term of act of discretion exercised by the government. Granted for a specific period of time, the grantee does not need to fear deportation or removal from the U.S. May be revoked at anytime, though. • Nonimmigrant • Immigrant • U.S. Citizen

12. Deferred Action for Childhood Arrivals (DACA)

13. DACAOverview • What it Does • Specific type of Deferred Action that sets forth a formal procedure for applying. • On June 15, 2012 President Barack Obama and the Secretary of Homeland Security announced a program designed to help certain young people who had been brought to the United States as kids. • What it Doesn’t Do • Allow a recipient to stay in the United States permanently • Grant legal status, create a pathway towards lawful permanent resident status, or United States citizenship • Create an authorized “admission” to the United States that would allow a recipient to adjust status in the United States • Automatically grant travel authorization

14. DACA: Qualifications • Age • Brought to the United States before 16th birthday • AND • Was not over age 31 on June 15, 2012 • AND • Must be at least age 15 to file • Unless in removal proceedings or have an order of removal or voluntary departure order – then can file if younger than 15 (but still not older than 31 on June 15, 2012). • Residence in the United States • Lived in the United States since at least June 15, 2007 up through the time of filing. • Short trips outside of the United States after June 15, 2007 are okay, depending on the trip’s nature.

15. DACA: Qualifications, Cont. • Physically present in the United States on June 15, 2012 AND • Without legal status on June 15, 2012 • Education / Military Service • Have high school diploma or GED certificate or be enrolled in school or a GED program OR • Honorably discharged veteran of the Coast Guard or United States Armed Forces

16. DACA: Qualifications, Cont. • No or Limited Criminal History • No felony conviction • Punishable by imprisonment for a term exceeding one year • No significant misdemeanor conviction • Domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, or driving under the influence OR • Sentenced to 90 days or more of incarceration • Three or more other misdemeanors • Sentenced to less than 90 days of incarceration • Other national security risks • Traffic violations • Minor traffic violations are not considered misdemeanors for DACA purposes

17. DACA: FAQs • Amount of Evidence • Transcripts are generally the best because they how continuous enrollment • One or two items from each year should be enough • Pictures • Yes, submit two passport-style photographs • Social Security Numbers • If applicant has used a number that was is not genuine, list “no valid SSN” on the forms • Addresses • Yes, must list them all. If you can only remember a street name, put that down. • Originals • Do not need to submit any originals, but make sure there are translations of anything not in English.

18. DACA: Misc. • One chance to apply • If denied, no appeal • Lets USCIS know where applicant is • USCIS could refer to ICE is there are criminal or national security issues • USCIS has stated that if program were to be discontinued, would not share recipient’s information with ICE • USCIS has user-friendly information on their website: www.uscis.gov

19. DACA is not the DREAM Act • DACA is a temporary solution • DREAM Act has had many different revisions, but generally creates a way to gain lawful permanent residency and then eventual citizenship.

20. Family-Based Immigration

21. How to Immigrate Through Family • Two step process • Petitioner – the U.S. citizen or LPR • Beneficiary – the foreign national • I-130 • Filed by Petitioner, asking USCIS to recognize the validity of the relationship. • I-485 or Consular Processing • Filed by Beneficiary, asking USCIS or DOS to grant a green card.

22. Who Can Petition? • U.S. Citizen, over age 21 • Can petition for: • Immediate Relatives – allows I-130 and I-485 to be filed together, saving months or years • Spouse • Minor children • Adopted children, if adoption was finalized before 16th birthday • Parents • Preference Categories • Married or adult children • Adult brother and sister • Lawful Permanent Resident, over age 21 • All under Preference Category • Spouse • Minor children • Unmarried adult children • NO married adult children • NO brothers and sisters

23. What is Preference Category? • Answer: • A system designed to allow a certain number of visas or green cards to be issued to certain types of family members from certain countries in a given year. • Preference category applications can take years for a “visa number” to become available. For family from China, Mexico, Philippines, and India, wait can be upwards of ten years. • Immediate relatives always have a “visa number” available, meaning that there is no additional wait.

24. Special Situations

25. Special Immigrant Juvenile Status (SIJS) • Allows an abandoned or neglected child to self-petition for a green card • Gets rid of the I-130 requirement. • Must get an order from State Court that declares the child deprived and that it is in the best interest of the child to remain in the United States under the guardianship of a lawful permanent resident or U.S. citizen • In Georgia, order must come before applicant’s 18th birthday

26. SIJS: Advantages and Disadvantages • Advantages • Can use, even if in removal proceedings • If not in removal proceedings, can apply for green card at the same time • Process could potentially be done within six months • Forgives illegal entry • Disadvantages • Can never file for immigration benefit for biological parents • Getting deprived declaration is difficult

27. Victims of Crime - T or U Status • Non-immigrant status for immigrant victims of crime who suffered substantial physical or mental harm and were helpful in the investigation or prosecution of certain crimes • Valid for four years • Includes work authorization • At end of third year, can apply for lawful permanent resident status

28. T or U Status: Qualifications • Crime • T Status: Human Trafficking • Forced labor or prostitution • U Status: Violent Crime • rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, being held hostage, peonage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury, or attempt, conspiracy, or solicitation to commit any of these crimes or any similar activity in violation of federal, state, or local criminal law • Victim • Can be someone in the U.S. under any status OR • U.S. citizen child • Undocumented parent may apply • Substantial physical or mental harm • Must cooperate with law enforcement

29. Violence Against Women Act (VAWA) • Self-petitioning status for victims of “extreme cruelty” • Removes the need for an I-130 • If granted, will receive lawful permanent resident status • Can be used by people who came to the U.S. illegally • Does not just apply to women

30. VAWA: Qualifications • Extreme Cruelty by U.S. Citizen or Lawful Permanent Resident • Immigration threats • Physical violence • Financial control • Emotional or mental abuse • No need for police report • Applicant can be child, step-child, or spouse of abusive lawful permanent resident or U.S. citizen • Child is anyone 21 or under • If spouse – must have been married within the past two years

31. Resources • American Immigration Lawyers Association (Private Attorneys) • www.aila.org for Lawyer Referral Service • Members belong to at least one State Bar Association • Klinke Immigration, LLC • Tracie L. Klinke • 320 Cherokee Street, Suite C, Marietta, GA 30060 • 678-713-4255 • www.klinkeimmigration.com • Latin American Association • 2750 Buford Highway NE, Atlanta, GA 30324 • 404-638-1800 • www.thelaa.org • Legal Aid of Cobb County • 30 South Park Square, Marietta, GA 30060 • 770-528-2565 • www.atlantalegalaid.org • Catholic Charities • 2305 Parklake Drive, Bldg. 9. Ste. 150, Atlanta, GA 30345 • 678-222-3920 • http://www.catholiccharitiesatlanta.org/services/immigration-legal-services/