Slideshow Presentation on the Asylum Clock – how it works, when it starts and stops, and how it relates to eligibility for employment authorization:
look for related materials at Immigration Info Site
The Asylum Clock & Employment Authorization by Marshall H. Hong is licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.
Slideshow presentation on Crimes Involving Moral Turpitude (CIMTs). If you have been convicted of a crime, or are currently facing criminal charges, view this presentation to determine whether a conviction will render you inadmissible or deportable:
Look for accompanying video at Immigration Info Site
Crimes Involving Moral Turpitude (CIMTs) by Marshall H. Hong is licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.
Based on a work at www.immigrationinfosite.com.
On January 19, 2012, President Barack Obama issued an Executive Order to “improve visa and foreign visitor processing and travel promotion”, and to “enhance and expedite travel to and arrival in the United States by foreign nationals, consistent with national security requirements.”
In response to a decrease in the U.S. share of the international travel market, President Obama issued the Order, with instructions to the U.S. Departments of State and Homeland Security, to implement a coordinated policy to achieve the following stated goals:
- Increase nonimmigrant visa processing capacity in China and Brazil by 40% over the coming year (2012)
- Ensure that 80% of nonimmigrant visa applicants are interviewed within 3 weeks of receipt of application
- Increase efforts to expand the Visa Waiver Program and travel by nationals of Visa Waiver Program participants
- Expand reciprocal recognition programs for expedited travel, such as the Global Entry program
- Increase the U.S. market share of worldwide travel, including obtaining a greater share of long-haul travel from Brazil, China, and India
To read the full Executive Order, you can visit the official website of the White House.
USCIS makes available more materials for immigrants and immigrant-serving organizations to prepare for the Naturalization tests of English, History & Government:
On November 15, 2011, the U.S. Department of Justice, Executive Office for Immigration Review (“EOIR”), issued a Memorandum addressed to all Immigration Judges, Court Administrators, Attorney Advisors & Judicial Law Clerks, and Immigration Court Staff, on the subject of Operating Procedures with respect to the Asylum Clock. The purpose of the Memorandum was to clarify the policy to be followed in starting and stopping the Asylum Clock.
This Article will give a brief overview of that policy, including when the Clock starts and stops, and why it is important for Asylum Applicants. In future articles we will provide examples, explain “expedited hearings”, and discuss the recent lawsuit filed by the American Immigration Council, alleging that the EOIR’s policy regarding the Clock is arbitrary and unlawful.
The Asylum Clock counts the number of days an Asylum Application has been pending, beginning on the date on which the Application is filed either with the Asylum Office or with the Immigration Court. The Asylum Office or the Immigration Court is required to complete the adjudication of the Application within 180 days after the date on which the Application is filed.
In general, an Asylum Applicant can file an application for an Employment Authorization Document (“EAD”) after the Clock has counted 180 days from the date of filing, provided that the Application remains pending with the Asylum Office or the Immigration Court.
However, “any delay requested or caused by the Applicant shall not be counted as part of these time periods”, including any delays caused by failure to comply with fingerprint requirements. In other words, if the Applicant is responsible for any delay in the processing of the Application, the Clock will be stopped, and any days that pass while the Clock is stopped will not be counted toward the 180 days required before the Applicant is eligible for Employment Authorization. For example, if the Applicant fails to appear for a scheduled fingerprint appointment on the 45th day after the filing of the Application, the Clock may be stopped at 45 days.
When an individual applies for asylum protection in the U.S., the filing of the I-589 Application for Asylum starts an “Asylum Clock“. This Clock counts the number of days that the Application remains pending, both at the asylum office and at Immigration Court. An asylum applicant should be eligible to apply for employment authorization after the Application has been pending for 180 days.
However, if the asylum office does not approve the Application, the applicant will be referred to Immigration Court, where the Immigration Judge (“IJ”) can review, and possibly approve, the Application. If the Application is denied, the applicant (Respondent) may end up having to depart the U.S. under an Order of Deportation.
Even though the case may remain in Immigration Court for years before the IJ makes a final decision on the Application, in some cases the IJ will “stop” the Asylum Clock. When the Clock is stopped before it has counted 180 days, the applicant (Respondent) will not become eligible for employment authorization. This leaves the applicant without the ability to work legally in the U.S. while his case remains pending, even though he is permitted to remain in the U.S. during that time.
In December, 2011, the American Immigration Council joined forces with other interested groups in the filing of a lawsuit against the U.S. Citizenship and Immigration Service (“USCIS“) and the Executive Office for Immigration Review (“EOIR” – which is the federal agency of which the Immigration Court system is a part), challenging the constitutionality of the Immigration Court’s policies regarding the starting and stopping of the Asylum Clock.
Over the next several weeks, we will post a series of articles at Immigration Info Site discussing the Asylum Clock, the Immigration Court’s current policies regarding starting and stopping the Clock, and the pending lawsuit challenging those policies.
Please check back for more articles and other materials on this and other immigration law topics.
What is the Asylum Clock? by Marshall H. Hong is licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.
Based on a work at www.immigrationinfosite.com.
Recently a number of states have enacted so-called immigration laws. These laws are intended to restrict immigration, to give state and local law enforcement agencies the power to enforce federal immigration laws, or to punish undocumented aliens for the offense of being in the U.S. illegally. Some of these laws have come under challenge in federal courts – most notably, the U.S. Supreme Court has recently agreed to hear a challenge to the State of Arizona’s controversial immigration law. The issue is whether the states have the authority to enact and enforce these laws.
The U.S. Constitution, among other things, distributes power or authority among the various branches of government (executive, judicial, legislative), as well as among the different levels of government (federal, state, county, municipal). In some cases, there may be overlap among the different branches and/or levels of government. In other cases, however, where certain powers are given exclusively to one branch or level of government, the other branches or levels of government may be prohibited from exercising power in these areas.
For example, the power to create statutory laws lies with the legislative branch of the government. The judiciary is not allowed to create statutory laws (although, in some cases judicial decisions will effectively “create” law by establishing “precedents”). Similarly, the power to enter into treaties with foreign governments, or to declare war, lies exclusively with the federal government. The state of Michigan, for example, could not enter into a treaty with the government of Canada. Nor could the state of Alaska declare war against Russia.
However, if the power regarding a certain area of law is not granted exclusively to one branch or level of government under the Constitution, then more than one branch or level of government may exercise authority in that area of law. For example, the federal government, the individual states, and even municipalities may enact criminal laws. In some cases these laws may overlap. A crime (such as murder) may be punishable under federal or state law.
The U.S. Constitution has several provisions that give express or implied authority to the federal government to enact and enforce immigration laws. However, in some cases it is unclear whether that authority is meant to be exclusive. So it is possible that the states may have the authority to enact immigration laws, although they may be limited. In fact several state laws dealing with immigrants or immigration have been upheld in the past. But even where the power is not held exclusively by the federal government, if a state law is in conflict with a federal law, it may be stricken as unconstitutional.
Even when a state legislature believes it may be enacting a law that overreaches its authority, there may still be practical reasons for enacting the law – for example, to obtain a court determination as to whether the law is constitutional (to set a precedent), or to prompt the federal government into taking more action with respect to the issue in question.
In subsequent articles at Immigration Info Site, we will be looking at these issues in more detail, including a review of the immigration laws recently enacted by several states. Please check back for more.
State Immigration Laws – Introduction by Marshall H. Hong is licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.
Based on a work at www.immigrationinfosite.com.
Anatomy of a Removal Proceeding – Part Two:
Part Two covers the various forms of Relief from Removal, and gives an overview of the Individual Calendar Hearing.
For more on these topics, please view the following:
Anatomy of a Removal Proceeding (Part I)
Criminal Convictions & Deportation Slideshow
Anatomy of a Deportation Case Slideshow
Introduction to Refugee & Asylum Slideshow
In light of USCIS’s recent (January 6, 2012) announcement to change the procedure for applying for a waiver of the Unlawful Presence Bar, this Article will give a brief overview of the Bar, the current waiver application procedure, and the proposed changes.
Under current U.S. immigration law, when an individual has been unlawfully present in the U.S. for a period of between 6 months and 1 year, his departure from the U.S. will trigger a three-year bar from readmission back into the U.S. When an individual has been unlawfully present in the U.S. for a period of more than 1 year, his departure from the U.S. will trigger a ten-year bar from readmission back into the U.S.
“Unlawful Presence” includes remaining in the U.S. after the expiration of a period of authorized stay, as well as being present in the U.S. after an unlawful entry. Therefore, a person who enters the U.S. pursuant to a valid nonimmigrant visa, but remains present in the U.S. after the I-94 has expired, will begin to accrue unlawful presence upon the expiration of the I-94 (including any authorized changes of status or extensions of status). Also, an individual who has entered the U.S. without inspection (Entry Without Inspection or “EWI”) will accrue unlawful presence from the time of unlawful entry.
The Unlawful Presence Bar (also known as the “3/10-year bar”, so-called because of the 3-year and 10-year bars triggered by the unlawful presence) causes particular problems in cases of family-sponsored immigration, in which the Beneficiary is not eligible for Adjustment of Status and has accrued more than 6 months of unlawful presence (for more on these issues, please read “Overview of Adjustment of Status & Consular Processing“; and “What is 245i?“). In these cases, the U.S. Citizen (or Permanent Resident) Petitioner files an I-130 Petition with USCIS. Once USCIS approves the I-130 Petition, the Beneficiary will be required to leave the U.S. to apply for an Immigrant Visa at a U.S. Consulate overseas. The Beneficiary’s departure from the U.S. triggers a 3- or 10-year bar from readmission. The Beneficiary can then apply for a waiver of the Bar, if he can show that he has a U.S. Citizen or Permanent Resident family member who would suffer an extreme hardship if the Beneficiary were not permitted back into the U.S.
However, under the current law, the Beneficiary cannot apply for the waiver until he has first appeared at the U.S. Consulate for an Immigrant Visa interview. If the consular officer believes that the Beneficiary is eligible for the visa, but for the Unlawful Presence Bar, the Beneficiary will be invited to file an application for the waiver. The Beneficiary will then have to remain outside the U.S. while the application is processed, and until the application has been approved – a wait time of several months or in some cases even years.
Under the changes proposed by USCIS, certain individuals wishing to apply for status as a Lawful Permanent Resident through U.S. Citizen Petitioners would be allowed to apply for the waiver of the Unlawful Presence Bar before departing the United States. This would result in much less time spent outside the U.S. for these individuals, and less time spent apart from their families.
If you are the Beneficiary of an approved or pending I-130 Petition, filed by a U.S. Citizen family member, you should consult a qualified immigration attorney to determine whether this proposed change will apply in your situation.
For more information on this and other immigration law topics, please visit www.ImmigrationInfoSite.com.
You may also contact Attorney Marshall H. Hong (marshall@hong-immigration.com) with any questions you may have.
The Unlawful Presence Bar and Proposed USCIS Rule Change by Marshall H. Hong is licensed under a Creative Commons Attribution 3.0 Unported License.
Based on a work at www.immigrationinfosite.com.
On Friday, January 6, 2012, the U.S. Citizenship and Immigration Service (“USCIS”) announced its plan to change the current process for filing applications for a waiver of the 3- and 10-year “Unlawful Presence” Bar. The new rule would allow applicants to apply for the waiver in the U.S., and remain in the U.S. until the waiver is approved, before departing the U.S. to appear for visa interview at the U.S. Consulate abroad.
Click here to read the announcement.
For more information, including a discussion of the 3/10 year unlawful presence bar, please look for articles and other materials on this subject at www.ImmigrationInfoSite.com.
Related blog posts: Overview of Adjustment of Status & Consular Processing; What is 245i?