Law Offices of Jimmy Johnson PLLC

Can Your Law Offices Represent Me and My Immigration Case in Anywhere Outside New York State And New Jersey State?

Short Answer Is Yes.  Although our law office is located in New York State and New Jersey State, but we would represent all immigration clients in all the 50 states of the United States since our U.S. Immigration practice is based on a federal immigration laws.  

Also, we will represent all those with Private or Public Criminal Law & Justice Issues; Family Law Matters (Divorce, Domestic Violence); Landlord Issues & Tenant Issues;  Contracts Disputes; Personal Injury Cases; Estate & Trust Matters (Wills, Probate, Guardianships); and Bankruptcy Matters.

Therefore, by choosing our law firm--Law Offices of Jimmy Johnson PLLC, we promise to treat your case with enthusiasm and perseverance.  In fact, your satisfaction is our greatest pleasure. Indeed, we promise that you will enjoy our comprehensive legal services in a fast and efficient manner.  Generally, our service fees are very competitive and parts of these fees are contingent upon the approval of your case.  Others are based on flat fee retainer.

What Is DACA? How Does It Affect You as a Childhood Arrival in the US?

DACA means Deferred Action for Childhood Arrivals. On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several guidelines may request consideration of deferred action for their deportation or removal from the United States for a period of two years, subject to renewal. These individuals are also eligible to apply for and receive work authorization from the United States Citizenship and Immigration Services (USCIS). While DACA is a use of prosecutorial discretion to defer removal action against an individual child arrival in the U.S. for a certain period of time, but it does not provide lawful status to them. 

What Is the Guideline for Requesting DACA in the U.S?

You May Request DACA If You:

1. Were under the age of 31 as of June 15, 2012;
2. Came to the United States  before reaching your 16th birthday;
3. Have continuously resided in the United States since June 15, 2007, up to the present time;
4. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
5. Had no lawful status on June 15, 2012;
6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
7. Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

What Is the Filing Process for DACA?

If you meet the guidelines for DACA, you will need to complete the following steps to make your request to USCIS.

(1) Collect the Following Documents As Evidence that You Meet the Guidelines: You will need to submit legible copies of your supporting documents with your request for DACA, unless you are specifically instructed to submit an original document. These legible copies of your documents include

   (a) 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

   (b) Proof You Came to the 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

 (c) Proof of Your Immigration Status in the U.S.:

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

 (d) Proof of Your Presence in the U.S. on June 15, 2012:

• 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

   (e) Proof of Your Continuous Residence in the U.S. SinceJune 15, 2007:

• Same requirements as in (d) above.

   (f) Proof of Your Student Status as of 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

   (g) Proof of Your Honorably Discharged Veteran of the U.S. Armed Forces or Coast Guard:

• 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

 (2) Complete the Required Two USCIS I-Forms & Worksheet Using the Most Recent Versions:

• I-821D, Consideration of Deferred Action for Childhood Arrivals
• I-765, Application for Employment Authorization and I-765WS, Worksheet.

 (3) Pay the Filing Fee for DACA Request I-Forms:

• Total Filing Fee of $465 ($380 Fee plus $85 Fee for Biometric Services fee for fingerprinting and photo).

 (4) File Your Completed USCIS I-Forms, I-821D, I-765 & I-765WS and the Fee of $465:

• Using the DACA guideline, organize and label your evidence accordingly.
• Mail all pages of the forms to correct USCIS Lockbox.

        Remember, You Cannot E-file your DACA Request with the USCIS.

 (5) Check Status of Your DACA Request After Filing:

• Request for Evidence (RFE) By USCIS: USCIS may send you a Request for Evidence (RFE) if it has questions on the evidence you submitted.
• Grants of DACA and Employment Authorization in Your Case By USCIS: If USCIS Grants DACA and employment authorization in your case, you will receive a written notice of that decision. An Employment Authorization Document will arrive separately in the mail.
• Denial of DACA in Your Case By USCIS: If USCIS Denies or Does Not Grant DACA in Your Case, you cannot appeal the decision or file a motion to reopen or reconsider. USCIS will not review its discretionary determinations. The USCIS will refer your case to the U.S. Immigration and Customs Enforcement (ICE) and you will be issued a notice to appear if your case involves a criminal offense, fraud, or a threat to national security or public safety for ICE to begin a deportation or removal proceedings unless the Department of Homeland Security (DHS) determines that there are exceptional circumstances in your situation.

Read More on the Expanded DACA Process Below Under the QUESTION: Is the 2014 President's Executive Action to Stop the Deportation of Illegal Or Undocumented Parents of U.S. Citizens and Legal Permanent Residents Lawful?

How Can Asylees/Refugees, Immigrant And Non-Immigrant Aliens--Family-Based Or Employment-Based Visa Petitions--Become Legal Permanent Residents (Green Card Holders) While Living In The United States?

Asylees are those aliens who have been granted Permanent Resident or Asylum status during proceedings before an Immigration Judge (IJ) or the Board of Immigration Appeals (BIA) and received proper documentation issued by the local USCIS office establishing such status (e.g., Form I-94, Nonimmigrant Arrival/Departure Record). But an Immigrant is a foreign national who has been granted the privilege to live and work permanently in the United States through approved USCIS immigrant visa petition based on Form I-140, Employment-Based Visa Petition filed by an U.S. employer or I-130, Petition for Alien Relative filed by a relative who is a U.S. citizen, or a lawful permanent resident alien or I-129F, K-1/K-2 admitted Fiance(e)/Dependent Child/ren and later K-3/K-4 Spouse/Dependent Child/ren of a U.S. citizen.

These admitted refugees with permanent resident status must file their Form I-485, Petition to Register Permanent Resident or Adjust of Status (AOS) with the appropriate USCIS Service Center or local field office within one year of arrival into U.S. The Asylees must file their I-485 AOS within one year of being granted asylum by the IJ or the BIA. In most employment-based categories such as EB-2, alien workers with advanced degrees or exceptional ability and EB-3, alien professionals, skilled workers, and other workers, a U.S. employer must complete a labor certification request under the Department of Labor’s Employment and Training Administration (“ETA” 9035, formerly, 750) for the alien. Also, the State Department must have an immigrant visa number available for the alien who is already in the United States. Hence, those who are already in the United States must apply to adjust to Lawful Permanent Resident (LPR) status with the USCIS Service Center when such a visa number is made available to him/her. But, those who are outside the United States when an immigrant visa number becomes available will be notified to go to the local U.S. consulate in their country to complete the processing for an immigrant visa.

The Asylees/Refugees who have been physically present in the U.S. FOR one year period after being granted immigration relief during proceedings before an IJ or the BIA; Immigrant Aliens with approved or concurrently filed Family-Based Visa Petition based on Form I-130s, Petition for Alien Relative; or Employment-Based Visa Petition based on concurrently filed, pending, or approved Form I-140, Immigrant Petition For Alien Worker(s) and have immigrant visa numbers available for them (and their spouse or children); Family-Based Visa Petition K-1 admitted Fiance(e) of U.S. Citizen based on Form I-129F who subsequently married to that citizen within 90 days of entry and/or his/her K-2 dependent child/ren and became K-3/K-4 Spouse/Dependent Child/ren; Special Immigrant Class--Active Duty Service Member(s) of U.S. Armed Forces (including Widows/Widowers) with approved or concurrently filed Form I-360, Special Immigrant Juvenile with pending or concurrently filed Form I-360, Special Immigrant Physician, Afghan and Iraqi Translators, International Organization Employees Or Eligible Family Member(s), Religious Worker(s) Or Minister(s) with approved or pending Form I-360; and Immigrant Investors with approved Form I-526, Immigrant Petition By Alien Entrepreneur must complete and file their I-485, AOS petitions with all required applicable supporting evidence.

See the Law: The Immigration and Nationality Act (INA) governs the admissions of all immigrants to the U.S. with Sections, INA § 245 dealing with most types of Permanent Resident Status. The Code of Federal Regulations (CFR) at 8 CFR § 245 deal with the specific eligibility requirements and procedures for adjusting to permanent residence status (AOS).

How Can U.S. Citizens and Legal Permanent Residents Bring Their Aliens Spouses (Husband or Wife) to Live In The United States?

Because U.S. Citizens' spouses are usually considered as immediate relatives, thus they are immediately eligible for immigrant Visas if their petitions for Alien Relative, Form I-130 are approved by the USCIS. However, as United States Citizens, once you-the petitioner filed the Form I-130, Petition for Alien Relative, you can bring your spouse to legally live and work in the U.S. by applying for a Nonimmigrant K-3 Visa while the Form I-130, Petition for Alien Relative is pending with the USCIS.

Furthermore, if a lawful permanent resident (LPR) (who did not gain his/her LPR status as an immediate relative through parent, spouse, or unmarried child under 21 years of age of a U.S. citizen, but through any of the followings: “a diversity immigrant visa, or an employment-based immigrant visa, or an immigrant visa based on his/her relationship to his/her U.S. citizen sibling, or an immigrant visa based on his/her relationship to his/her U.S. citizen parent when he/she was already married”) got married to his/her spouses before he/she became a Lawful Permanent Resident, then, his/her spouses may be eligible to receive “following-to-join” benefits provided that their “relationship still exists.” When such is the case and one of these categories applies, the petitioning LPR must then submit the following information to the U. S. Citizenship and Immigration Services (USCIS):

1. Form I-824, Application for Action on an Approved Application or Petition;
2. A copy of the original application or petition that was used to apply for your immigrant status;
3. A copy of the I-797, Notice of Action, for your original application or petition; and
4. A copy of your alien registration receipt card or I-551 at the USCIS office that took the most recent action on your case.

Once the I-824 is approved, the USCIS and/or the petitioning LPR would simply notify a U.S. consulate that he/she is indeed a lawful permanent resident so that his/her spouse can apply for “a following-to-join immigrant visa.” This means that the petitioning LPR would not have to submit a separate Form I-130, Petition for Alien Relative, for his/her spouse, and the spouse would not have to wait any extra time for an immigrant visa to become available. It must be noted that it is the responsibility of the petitioning LPR’s spouse to contact the local U.S. consulate abroad to complete the immigrant visa processing.

However, if the petitioning LPR’s spouse is inside the U.S. through a lawful admission or parole and is maintaining that status at the time of notification, he or she may “file the Form I-485 when the visa number becomes available.” But if the petitioning LPR’s spouse is inside the U.S. illegally as of the time the Form I-130, Alien Relative Petition was filed on or before 04/30/01 and approved on his/her behalf, then, he or she may be “eligible to benefit for adjustment of status under section 245(i).” Furthermore, if a Lawful Permanent Resident (LPR) has filed Form I-130 for his/her spouse and/or minor children on or before 12/21/2000, but more than three years have passed since the I-130 was filed without action on that case, then his/her spouse and/or children may be eligible for the “‘V’ visa classification under the 09/07/2001 INS Implements of ‘V’ Nonimmigrant Provision of the LIFE Act.”

See the Law: The Immigration and Nationality Act (INA) governs the admissions of all immigrants to the U.S. with INA (Sections) § 201, INA § 203, INA § 204 dealing with immigrant visas for Spouse. The Code of Federal Regulations (CFR) at 8 CFR § 204.1, 8 CFR § 204.2, 8 CFR § 204.3, and 8 CFR § 245 deal with the specific eligibility requirements and procedures for U.S. Citizens and Legal Permanent Residents’ relatives to qualify for immigrant visas.

NOTE: All Married Spouses of U.S. Citizens And Lawful Permanent Resident Aliens Who Were Granted Permanent Resident Status With Conditions Must Remove Conditions on Their Residence Card, 90 Days Before The Two-Year Anniversary of Their Marriage?

For those who have been married less than two years when their spouses are granted lawful permanent resident status, their spouse will receive permanent resident status on a conditional basis. It must be noted that both spouses (husband and wife or vise versa) must apply together to remove the conditions on residence. Such applications must be made at the appropriate government agency to remove conditional status within 90 days before the 2-year anniversary of the award date of the spouse’s conditional legal permanent resident status. Failure to file such petition during this time would result in beneficiary spouse being considered out of status as of the 2-year anniversary, and may be subject to removal from the U.S. Nevertheless, if you are a U.S. Citizen, once you file Form I-130, your spouse is eligible to apply for a nonimmigrant K-3 Visa. This will entitle him or her to come to the U.S. to live and work while the visa petition is pending. The Form to file for this benefit is Form I-129F. Using a K-3 visa method is the quickest way for your spouse (him or her) to come to the U.S.

See the Law: The part of the Immigration and Nationality Act (INA) which deals with conditional resident status based on marriage is INA § 216 and the specific eligibility requirements and procedures for removing conditions on permanent resident status are coded in Code of Federal Regulations [CFR] at 8 CFR § 216.

How Can U.S. Citizens and Legal Permanent Residents Bring Their Aliens Child/ren, Or Sons, Or Daughters to Live In The United States?

The U.S. Citizens and Lawful Permanent Residents who wish to bring their minor child/ren, or Sons, or Daughters to live permanently in the U.S. should file a form I-130, Petition for Alien Relative on their behalf with the United States Citizenship and Immigration Services (USCIS). Before doing so, it is imperative for the U.S. Citizens and/or Lawful Permanent Residents to understand the USCIS legal definition of “Child/ren,” Son(s), or Daughter(s)” for immigration purposes only. The Immigration and Nationality Act (INA), the law that governs the admissions of all immigrants to the U.S. defines minor “child/ren” as unmarried persons under the age of 21 regardless of whether he is born in wedlock or out of wedlock by both parents, adopted, or orphaned. An “unmarried sons or daughters” are persons of 21 years of age or over, but “married sons or daughters” are persons of any age who are married.

The U.S. Citizen’s “minor child/ren” who are “unmarried” and “under 21 years old” are considered immediate relatives, and do not need to wait for visa numbers to become available before coming to the U.S., thus, they are eligible to receive immigrant visa immediately. Also, the “unmarried, minor child/ren” of U.S. Citizens, who were admitted or paroled into the U.S., may file Form I-485, Application to Register for Permanent Residence or Adjust Status (AOS) at the time they file Form I-130, Petition for Alien Relative. However, the fact that U.S. Citizen’s “sons and daughters” are “unmarried and 21 years old or over,” or “married at any age,” they are not immediate relative and would have to file for and obtain USCIS approval of immigrant visa petitions on I-130s and wait for visa numbers to become available and their priority date being listed on the Department of State’s Visa Bulletin before coming to the U.S.

On the other hand, Legal Permanent Residents can only bring their unmarried child/ren, sons or daughters (but not married sons and daughter). To do so, they must first file Form I-130, Petition for Alien Relative and obtain USCIS approval of such immigrant visa petitions for their child/ren, sons or daughters; and secondly, have immigrant visa numbers available from the U.S. State Department for their child/ren, sons or daughters irrespective of whether they are already here in the U.S. or abroad. If the child/ren or sons or daughters are legally in the U.S. when immigrant visa numbers become available, they may apply to adjust status to that of a lawful permanent resident using the Form I-485. But if these child/ren, sons or daughters are outside the United States, they will be notified to go to the local U.S. consulate to complete the processing for immigrant visa numbers when they become available.

When a U.S. Citizen’s parent, brother or sister petitions for his/her alien relative on Form I-130, Petition for Alien Relative, and it happens that the alien relative is married with children, the alien relative’s spouse and/or children do not require a separate visa petition; they should be included in the same visa petition the relative is filing for him/her. The same rule applies to those relatives who are unmarried, 21 years of age or older and have children born out of wedlock; those children do not require a separate visa petition.

But if aliens who are unmarried and under 21 years of age and had children who did not physically accompany them to the United States before they became lawful permanent residents want these children to join them in the United States after obtaining Lawful Permanent Resident (LPR) status, then, they will have to file a “following-to-Join Benefits” petition for their children. This means that these new LPR aliens do not have to submit a separate Form I-130, Petition for Alien Relative, for their children, and their children will not have to wait any extra time for a visa number to become available to them before coming to the U.S. The LPR would have to simply notify a U.S. consulate abroad that they are lawful permanent resident so that their children can apply for immigrant visas there.

NOTE: For the LPR’s child/ren to be eligible for following-to-join benefits, they must be unmarried and under 21 years of age and have been child/ren, or a stepchild from a marriage of theirs which must have existed at the time the LPR was admitted into the U.S. or legally adopted and otherwise qualify as adopted child/ren under the immigration law prior to the LPR’s admission to the U.S. In any of these cases, the LPR must submit the following documents to the USCIS that took the most recent action on his/her case:

(i). Form I-824, Application for Action on an Approved Application or Petition;

(ii). A copy of the original application or petition that you used to apply for your immigrant status;

(iii). A copy of the I-797 Notice of Action for your original application or petition;

(iv). A copy of your alien registration receipt card or I-551; and

(v). Any other relevant proof that the child meets the appropriate criteria for Following-to-Join Benefits.

The petitioning U.S. Citizens, or Legal Permanent Residents and their beneficiaries (Child/ren, or Sons, or Daughters) must complete and file their I-130s, Petition for Alien Relative with all required applicable supporting evidence.

See the Law: The Immigration and Nationality Act (INA) governs the admissions of all immigrants to the U.S. with INA (Sections) INA § 202, INA § 203 and INA § 204 dealing with the immigrant status for children, sons, and daughters. The Code of Federal Regulations (CFR) at 8 CFR § 204.1, 8 CFR § 204.2, 8 CFR § 204.3, and 8 CFR § 245 deal with the specific eligibility requirements and procedures for U.S. Citizens and Legal Permanent Residents’ relatives to qualify for immigrant visas.

How Can U.S. Citizens Bring Their Alien Parents (Fathers and Mothers) to Live Permanently In The United State

The United States Citizens who are at least 21 years old are eligible to bring their alien parents to live and work permanently in the U.S. But the Lawful Permanent Residents may not petition to bring their alien parents to live permanently in the U.S. In order for a U.S. Citizen to bring their alien parents to live and work permanently in the U.S., he/she must complete an immigrant visa petition on Form I-130, Petition for Alien Relative, on behalf of his/her alien parent(s) and file it with the United States Citizenship and Immigration Services (USCIS). If such immigrant visa petition is approved by the USCIS and the alien parent(s) is outside the United States, then, he/she will be notified to go to the local U.S. consulate to complete the processing for the immigrant visa. But if the alien parent(s) is legally inside the U.S., then, she/he may apply to adjust his/her status to that of a lawful permanent resident using the Form I-485, application to register permanent residence and/or adjust status. NOTE: U.S. Citizens who were legally adopted may not petition for their birth parents.

The petitioning U.S. Citizens and their Alien Parents must complete and file their I-130s, Petition for Alien Relative with all required applicable supporting evidence.

See the Law: The Immigration and Nationality Act (INA) governs the admissions of all immigrants to the U.S. with INA (Sections) INA§ 201, INA § 204 dealing with immigrant visas for Parents. The Code of Federal Regulations (CFR) at 8 CFR § 204.1, 8 CFR § 204.2, and 8 CFR § 245 deal with the specific eligibility requirements and procedures for U.S. Citizens and Legal Permanent Residents’ relatives to qualify for immigrant visas.

How Can Asylees Help Their Alien Spouses (Husband or Wife) And Child/ren (Daughters and Sons) Get Derivative Asylum Status In The United States?

According to the immigration law, Asylum seekers may include their spouse or any unmarried child/ren under the age of 21 who are in the United States in their own asylum. But Asylum seekers whose asylum application have been granted asylum (and are now Asylees) and whose spouse and/or child/ren are outside the United States may apply for derivative asylum benefits for their spouse or minor child/ren based on the Asylee’s own asylum status within two years of granting such status. As for the Asylees whose spouse and child/ren are already in the United States may be eligible for derivative asylum benefits regardless of whether they are in the country legally or illegally provided that the relationship between the Asylees and their spouse and child/ren must have existed when they were granted asylum and continue to exist when they file Form I-730, Refugee/Asylee Relative Petition and when their spouse and children are admitted to the United States as derivative Asylees. Meaning that the Asylee’s children must be under 21 years of age and unmarried, and the spouse must remain married to the Asylee. Also, child/ren who were already conceived by an Asylum seeker’s spouse who is outside the country, but were not yet born on the day an Asylum seeker was granted asylum status are qualified for derivative asylum status.

Again, derivative asylum benefit may be applied for a step-child as long as the marriage between Asylee and the child/ren’s parent took place before the child/ren’s 18th birthday. Moreover, derivative asylum status may be applied for adopted child/ren as far as the adoption took place before the child/ren’s 16th birthday and the child/ren have been in Asylee’s legal custody for at least two years. The United States Citizenship and Immigration Services (USCIS) may require parentage testing or blood testing or DNA testing after initial and secondary forms of evidence have failed to establish parentage link. Such test which must be conducted by an accredited laboratory, the American Association of Blood Banks (“AABB”) must be at the expense of the petitioning Asylee(s). The admitted spouse and child/ren, 14 years and older may be permitted to work after proper documents are issued to them following filing of Form I-765, Application for Employment Authorization Document. NOTE: After Asylee’s spouse or child/ren are admitted to the United States as derivative Asylees, they must be granted special permission to travel abroad until they adjust to lawful permanent resident status, otherwise they will not be readmitted into U.S. upon a return from a trip abroad.

See the Law: The part of Immigration and Nationality Act (INA) which deals with Asylum is INA Section 208. The Code of Federal Regulations (CFR) at 8CFR Section 208 deals with the specific eligibility requirements and procedures for Asylees applying to bring their spouse or child/ren to the U.S.

Whether It Is OK for Legal Permanent Residents to Travel Abroad And How Long Should They Stay Away?

Yes, it is OK for the Legal Permanent Resident (LPR) to travel abroad, anywhere, and any place as far as she/he doesn’t have criminal conviction(s) hanging around her/his neck that would prevent her/him from being admitted into the U.S upon re-entering the country from oversea visit. Again, if an LPR plans to travel abroad for a visit that would entail a stay more than one year abroad, then he/she is required to file and obtain a “Re-entry Permit” that would allow him/her as an LPR to travel and reenter the U.S. Indeed, with a Re-entry Permit document, an LPR may stay outside the United States for up to two (2) years. But to avoid breaking the continuity of the required continuous residence in the United States which counts toward his/her naturalization for citizenship, she/he must file “Form N-470, Application to Preserve Residence” for Naturalization purposes. However, if she/he plans to stay abroad for a visit less than one (1) year, he/she is not required to apply for Re-entry Permit. She/he may reenter the U.S. on her/his own Permanent Resident Card, Form I-551 and valid passport.

Is the 2014 President'sExecutive Action to Temporarily Stop the Deportation of the Undocumented Parents of U.S. Citizens and (LPRs) Legal Permanent Residents Lawful?

Yes, the 2014 President's Executive Action to Temporarily Stop the Deportation of the Undocumented Parents of U.S. Citizens and (LPRs) Legal Permanent Residents Is Legal.  These 2014 Executive Actions are exercises of the President’s Prosecutorial Discretion (PD), which are consistent with the governing U.S. laws and the policies that the U.S. Congress has expressed in the statutes, which it has enacted.  In the past, U.S. Presidents had used its prosecutorial discretion through its Executive Order to grant a form of deferred actions to countless number of undocumented immigrants, thus, temporarily stopped the deportation of those certain number of undocumented immigrants.  In fact, several Presidents — both Republican and Democrat — have used Prosecutorial Discretion to temporarily delay deportation in the face of wars (Nicaragua, Kuwait, Liberia), hurricanes or earthquakes (El Salvador, Haiti, Nicaragua, Honduras, Philippines) and other discrete natural and political catastrophes. 

In fact, the federal courts have recognized that the Presidents inherently have the power to choose not to enforce immigration laws by not initiating deportation proceedings even when a person was not lawfully in the country. In the famous case, INS v. Lennon, the United States Court of Appeals for the District of Columbia Circuit held that the president could issue an “an informal administrative stay of deportation” to allow John Lennon to remain in the country. The court, in effect, expressly recognized the President’s constitutional power to exercise Prosecutorial Discretion (PD) in that very immigration context, thus, enabling the executive branch stopped the deportation of Mr. Lennon.  The Lennon case in many instances shows that just because someone is deportable under the law doesn’t mean you have to deport him.  The letter of the law (and Executive Actions), which made a difference in John Lennon’s life, will make a difference in the lives of these undocumented immigrant Parents of U.S. citizens, legal Permanent residents, and servicemen and also in the lives of people who were brought to the U.S. as children.

What Is Prosecutorial Discretion (PD)?

Under the U.S. Constitution, the U.S. Congress has sole responsibility to make laws. And the Executive Branch of the U.S. Government has the responsibility to faithfully enforce those laws passed by Congress.  Under the existing U.S.  Immigration law, those who arrive in the U.S. illegally or without proper documentation, or who overstay their visas, are subject to deportation.  Currently, there is an estimate of about 11 million people who are in the country illegally and thus, could be subject to deportation.  In fact, all those undocumented or illegal people in the U.S. could not be subject to deportation due to scarce economic and judicial resources.  Thus, we have the basic idea of prosecutorial discretion. 

Prosecutorial Discretion (PD) states that the police or other law enforcement officers cannot be expected to enforce every law written in the Blue book against every law breaker. Since there are not enough police or other law enforcement officers, so, the district attorney office or the prosecutors must exercise prosecutorial discretion in setting enforcement priorities.

How Does Prosecutorial Discretion (PD) Relate to the Enforcement of U.S. Immigration Laws?

The Executive Branch Authority of the U.S. President gives him the inherent power to allow nearly five million illegal immigrants to remain in the U.S. without facing the threat of immediate deportation. The U.S. President is well within his inherent authority to exert “Prosecutorial Discretion (PD)” in a way that would shield large numbers of illegal immigrants from deportation.  Under the enforcement of U.S. Immigration laws, the offices of the U.S. Department of Homeland Security (DHS) and the Department of Justice (DOJ) can exercise Prosecutorial Discretion (PD) in order to set priority on how to enforce the U.S. Immigration Laws passed by the U.S. Congress or the Order of the Executive Branch of the U.S. Government. 

The current U.S. immigration law, as written, grants this Prosecutorial Discretion to the Executive Brach and the Officials of the U.S. President to take such “Deferred Actions” on behalf of the undocumented persons.  Thus, under the Executive Brach Order of November 2014, which is aimed at temporarily stopping the deportation of Undocumented Parents of U.S. Citizens and Legal Permanent Residents, who have been in the country illegally for Five years or more and have child or children who are U.S. citizens or Green Card Holders, the U.S. President is merely exercising his inherent Discretionary Power to Defer the  Enforcement Action on certain number of illegal or undocumented immigrants who are currently subject to deportation.  The November 2014 Executive Order signed by the U.S. President does not grant the Undocumented or illegal immigrants legal resident status. In fact, the President is merely using the Executive Order to move them to the back of a very long line as potential deportees.

Who Is Not Covered By the Nov 2014 Executive Order?

• (1) Anyone Who Has Entered the U.S. Recently or Who Enters Now Without Authorization is Deportable.
• (2) Anyone Who Has Come to the U.S. Illegally or Without Documentation Within the Last Five Years Cannot Apply Under the Executive Order.
• (3) Undocumented Immigrants Parents of Children of U.S. Citizens and Lawful Permanent Residents who are here illegally for less than five years.
• (4) Undocumented Immigrants of Parents of U.S. Citizens and Lawful Permanent Residents who are here illegally for More than five years and Do Not Pass Criminal Background Check.
• (5) Parents of Illegal immigrants Children Who Gained Temporary Protected Status (TPS) Under the June 2012 Deferred Action for Childhood Arrivals (DACA) Program Will Not Be Covered By This Executive Order.

Who Is Covered By the Nov 2014 Executive Order:

1. Undocumented or Illegal Immigrants Parents:
• (a) Whose Children are U.S. Citizens or Legal Permanent Residents (LPR or GreenCard Holders), regardless of whether those children are minors.
• (b) Who Have Lived in the U.S. for more Than Five Years since January 01, 2010.
• (c) Who Undergo and Pass a Criminal Background Check.

2. Children Under the Original Deferred Action for Childhood Arrivals (DACA) of June 2012 Executive Order, which prevents deportation of those people who were brought to the U.S. as children before June 2007 at age 16 and were not more than 31 years old by Expanding those originally covered.The New Executive Order will Extend Protections to About 290,000 Qualifying DACA Children Plus Other 700,000 By Eliminating the Cutoff Age Limit of 31 Years to Those:
• Who came to the U.S. with Their Parents as Young Children before January 2010 and Have Lived / Remained Here Since that Time.
• Who Are Under 16 Years Old When They Arrived in the U.S. with Their Parents by January 2010, Without Requiring Them to Be Under 31 Years to Be Eligible.
• Future Relief Under DACA Will Be Extended to Three Years at a Time, up from Two Years as It Was Before Nov Executive Order.

Note: Until the Obama Administration Issue Its Prosecutorial Discretion Guidelines, Those Undocumented Parents of U.S. Citizens or LPRs (Legal Permanent Residents) Who Are Already in Removal or Deportation QUEQUE May Not Qualify for the Immigration Relief.

When Does This President’s Executive Order Begins?

The President’s Executive Order Would Begin Early Spring, 2015 (Possibly By Mid-February, 2015 for Immigrants who are eligible for the expanded version of DACA (without the 31-years age limit) and Mid-May 2015, for Parents of U.S. Citizens and LPRs) when the Obama Administration Will Issue Its Prosecutorial Discretion Guidelines, and the Undocumented Immigrants Parents of Children of U.S. Citizens and Legal Permanent Residents Would Be Able to:

1. Register with the Government Agency-United States Citizenship and Immigration Services (USCIS);
2. Gain Temporary Protected Status (TPS) from deportation for up to Three Years and receive only a temporary Employment Authorization Document (EAD), but not a clear path to Citizenship or Permanent Legal Status; and
3. Start to Pay Taxes.
4. The Application Fee is about $465.

The New Executive Order Also Will:

1. Lower the Deportation Priority for parents of U.S. citizens or legal permanent residents who have been in the U.S. for less than five years, and for other immigrants who have been here illegally for more than 10 years. But the New Policy will Emphasize Deportation for recent Arrivals, Criminals and National Security Threats.
2. Make Other Immigration Changes, including business programs sought by businesses, such as a Parole-in-Place Program that could affect another several hundred thousand people.
3. Loosen Eligibility Requirements for a Waiver Program for People seeking Green Cards, who entered the U.S. illegally and must leave the country for as much as 10 years before getting in line for a green card unless they get a waiver.