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CLINIC’s Advocacy Guide: How We Can Help You

 

CLINIC's Advocacy Guide

CLINIC wants to remind members of how its Advocacy Section can provide support and assistance.  This document outlines the advocacy related services CLINIC can provide as well as the channels through which CLINIC works with officials at the Department of Homeland Security (DHS) to resolve individual case and systemic problems. 

CLINIC relies on input from its affiliates to help identify problematic trends and policies of the federal government.  Please remember to share individual case stories and reports of inappropriate or problematic policies that you encounter in your work.  Bring issues to the attention of CLINIC’s Advocacy Director, Allison Posner at aposner@cliniclegal.org or (301) 565-4831, at any time. Information from you is crucial to CLINIC’s ability to advocate for improvements that benefit the individuals served by CLINIC’s network.

 

CONTENTS

INTRODUCTION: HOW CLINIC’S ADVOCACY SECTION CAN HELP                            

USCIS ISSUES AND CASES                                                                                                  

  • Systemic or General Policy Issues                                                                              
  • Inquiries on Cases Pending at USCIS Service Centers                                                

ICE AND CBP ISSUES AND CASES                                                                                     

  • Enforcement-Related Problems                                                                                              
  • Alternatives to Detention                                                                                            
  • ICE Detention Standard Violations                                                                             
  • Other DHS Enforcement Issues                                                                                              
  • Documenting Cases/Violations to Raise with ICE/CBP                                                           

MEDIA ADVOCACY                                                                                                            

SUPPORT ON STATE/LOCAL IMMIGRATION MEASURES                                                            

LITIGATION                                                                                                                          

 

 

 

Programs: 

Submitted and Model Comments on Proposed Fee Schedule Increase

CLINIC is encouraging affiliates and other stakeholders to review the proposed rule that would increase fees for certain immigration and naturalization forms and to submit comments to the Department of Homeland Security (DHS) by July 6, 2016. Read our analysis of the rule

 

CLINIC Comments on Proposed Fee Schedule Increase

CLINIC submitted the following comments on the proposed fee schedule increase to USCIS on June 21, 2016. 

 

Model Comments on Proposed Fee Schedule Increase (Affiliate and Direct Service Version)

CLINIC has drafted model comments on the proposed fee schedule increase to assist our affiliates and other direct service providers who wish to submit their own comments. We encourage you to draw from our model comments for your own organizational purposes. Accordingly, these comments may be adapted by your agency before submission.

 

Model Comments on Proposed Fee Schedule Increase (Religious Worker Petitioner Version)

CLINIC has drafted model comments on the proposed fee schedule increase to assist religious worker petioners who wish to submit their own comments. We encourage you to draw from our model comments for your own purposes. Accordingly, these comments may be adapted by you before submission.

 

CLINIC’s Tips for Submitting Comments to DHS About the Proposed Changes to the USCIS Fee Schedule

Submitting comments to DHS about the proposed USCIS Fee Schedule Changes can be easy with our model comments and tips.

  • All submissions should reference: DHS Docket No. USCIS–2016–0001
  • All comments are considered part of the public record. There are special instructions for submitting sensitive information such as personal and confidential data.
  • All comments must be received by July 6, 2016.

There are 3 ways to submit comments: 

  1. Submit via the Federal eRulemaking Portal: http://www.regulations.gov. Follow this site’s instructions for submitting comments
  2. Submit via Email: You may email comments directly to USCIS at uscisfrcomment@dhs.gov. Be sure to include DHS Docket No. USCIS–2016–0001 in the subject line of the message
  3. Submit via Mail: You may submit comments directly to USCIS by mailing them to:

Samantha Deshommes, Acting Chief, Regulatory Coordination Division, Office of Policy and Strategy
U.S. Citizenship and Immigration Services
Department of Homeland Security
20 Massachusetts Avenue NW
Washington, DC 20529–2020

Resources by type: 

USCIS proposes new fee schedule: Changes include partial fee waiver for certain naturalization applicants

Infographic about fee changes

Fees for more than three dozen immigration and naturalization applications or related services are proposed to increase by as little as $15 to as much as hundreds of dollars for some common categories.

The Department of Homeland Security released its proposed changes to the U.S. Citizenship and Immigration Services Fee Schedule on May 4, 2016, affecting its fees for services. The proposed rule has been published in the Federal Register (81 FR 26904, 5/4/16) and is open for comment. Comments are due by July 5, 2016. The proposed changes are likely to go into effect this fall.

Fees would increase, for instance, by $45 for an application for naturalization and by $195 for an application for a fiancé visa. The rules also include one new fee of $3,035 to recover the full cost of processing the Employment Based Immigrant Visa, Fifth Preference (EB-5) Annual Certification of Regional Center, Form I-924A. In addition, the DHS proposal would clarify that people who apply for a benefit may be required to appear for biometrics services or an interview and to pay the biometrics services fee, among other changes

What will change under the proposed rule:

Naturalization

USCIS has proposed a three-level fee for the Application for Naturalization (N-400). Under the proposed rule, the standard filing fee for Form N-400 would increase by 8 percent (from $595 to $640). A welcomed change is a new proposed partial fee waiver for naturalization applicants, for those with household incomes greater than 150 percent and not more than 200 percent of the Federal Poverty Guidelines. Applicants for the partial fee waiver would use a proposed new Form I-942, Request for Reduced Fee, that would be filed with the N-400 and the reduced fee of $320 (with the biometrics fee, the total fees would be $405). USCIS estimated 11 percent of average annual Form N-400 filings would be likely to quality for the lower fee.

Citizenship

Among the more substantial increases proposed is for Forms N-600 and N-600K, Application for Certificate of Citizenship. The current fee is $600 and DHS proposes raising it to $1,170 (a 95 percent increase). While the Certificate of Citizenship may be considered an optional form, it may be required when someone applies for certain other benefits, including, but not limited to: Social Security benefits; state issued ID including a driver’s license or learning permit; financial aid; employment; and passport renewal. Eligible applicants for Forms N-600 and N-600K may apply for a fee waiver.

Family–Based Residency

The proposed rule increases the fees for Forms I-130 by 27 percent and I-485 by 16 percent. Under the current fee schedule, the total of filing fees for a one-step, concurrent filing of Form I-130, Form I-485, Form I-765 and Form I-131 is $1,490. Under the proposed fee schedule, the total fees would be $1,760. USCIS also proposes an increased fee of $750 for a child under age 14 when filing Form I-485 concurrently with the application of a parent seeking classification as an immediate relative of a U.S. citizen, a family-sponsored preference immigration or a family member accompanying or following to join a spouse or parent. The current fee is $635.

Nonimmigrant Workers, including Religious Workers

USCIS proposes to increase the fee for Form I-129 from $325 to $460, a 42 percent increase. This is the first significant increase to this application since 2007.

Advance Parole

Another significant increase under the proposal is for Form I-131, Application for Advance Parole not filed concurrently or subsequent to filing Form I-485. Among CLINIC affiliates, such stand-alone applications for Advance Parole are most commonly filed by recipients of Deferred Action for Childhood Arrivals and Temporary Protected Status. The current filing fee is $360. The proposed fee is $575, a 60 percent increase. The form is not eligible for fee waiver. The fee for refugee travel documents will remain the same.

Employment Authorization Documents

USCIS proposes to increase the fee for Form I-765 from $380 to $410, an 8 percent increase. This increase affects applicants for work authorization, including foreign students approved for Optional Practical Training, spouses of certain nonimmigrant visa holders, recipients of DACA and TPS applicants.

Replacing Permanent Resident Cards

The fee for Form I-90 is proposed to increase from $365 to $455, a 25 percent increase. USCIS still can waive this fee for those who demonstrate inability to pay. Low-income applicants who qualify for naturalization and the respective fee waivers may choose to apply for naturalization rather than replace permanent resident cards.

What will stay the same under the proposed rule:

    • Biometrics services fee remains $85
    • Refugee Travel Documents fee remains $135 for adults and $105 for children under 16
    • Forms I-821 ($50) and I-821D ($0) remain the same
    • Premium processing fee remains $1,225
    • Interim filings, (concurrently filed Forms I-131 and I-765 with Form I-485) will continue to pay only the I-485 fee
Resources by type: 
Programs: 

USCIS Fee Changes

USCIS is in the process of updating its existing fee schedule. The new proposed schedule will change some of the fees for immigration and naturalization applications, as well as visa petitions and nonimmigrant applications. USCIS has indicated the proposed regulation is expected to be published in the coming months (May - June). Although the details of specific fees and amounts are unknown, CLINIC is expecting increases in government processing fees.

Upon release, the proposed fee schedule will be open to a public comment period. CLINIC will comment on increases relevant to our affiliate network during this period and will issue a model comment to encourage our network to submit comments as well. In an effort to better advocate on your behalf, we are asking you to submit information and stories related to increased fees and how they affect your client’s ability to access immigration benefits. We will use these stories in our comments and in our national advocacy efforts.

We want to hear from you! Please submit stories and other related information to us at advocacy@cliniclegal.org by May 16, 2016. Please use the subject line “USCIS Fee Changes.”

Not interested in emailing? Please take this quick survey on the forms that you use in your practice.

We look forward to hearing from you and are happy to answer any questions related to this issue going forward.

Resources by type: 

Submitted and Model Comments on I-821D

CLINIC Comments on I-821D

CLINIC submitted the following comments on the I-821D to USCIS on April 26th, 2016. The comments reflect policy and substantive suggestions to streamline the DACA application process.

 

Model Comments on I-821D

CLINIC has drafted model comments for on the I-821D to assist our affiliates and other non-profit organizations who wish to submit their own comments.  We encourage you to draw from our model comments for your own organizational purposes. Accordingly, these comments may be adapted by your agency before submission. 

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CLINIC Final Comments to Proposed Changes to I-131

On March 7, 2016, CLINIC submitted comments in response to proposed changes to USCIS Form I-131, Application for Travel Document. The proposals were published in the Federal Register on January 7, 2016. CLINIC’s  substantive comments focused on the proposed changes to the form instructions. CLINIC also requested that USCIS review its policies and procedures for DACA applicants seeking Advance Parole. Currently, USCIS procedure requires DACA applicants to receive approval of Form I-821D before they are permitted to submit Form I-131. CLINIC encouraged USCIS to allow applicants to submit Form I-131 concurrently with initial and renewal applications for DACA. CLINIC supports immigration policies and procedures that promote and facilitate travel. We welcome changes to forms and the application process that assist individuals and families to access these important immigration benefits.

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CLINIC Comments to USCIS Guidance on AOS and 245(a)

On March 10, 2016, CLINIC submitted comments on the policy guidance in the USCIS Policy Manual addressing the general policies and procedures of adjustment of status as well as adjustment under section 245(a) of the Immigration and Nationality Act. USCIS announced the new guidance on February 25, 2016. Feedback on the  updates to Volume 7 of the Policy Manual were due March 10, 2016.  CLINIC’s comments provided several recommendations to provide clarification and to correct omissions in the policy manual.

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CLINIC Comments to Proposed Changes to I-918

CLINIC’s comments submitted February 29, 2016 in response to USCIS proposed changes to Petition for U Nonimmigrant Status, Form I-918, and Supplements A and B of Form I-918. The proposals were published in the Federal Register on January 29, 2016. CLINIC supports efforts to broaden and enhance access to the U visa program and offered comments on the proposed changes to the U petition form, supplements, and instructions. Our comments were based on the collective knowledge of our staff attorneys as well as the opinions of selected affiliate members whose practices include extensive experience counseling and assisting clients with U petitions.

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CLINIC Comments to Proposed Changes to EAD

CLINIC’s comments submitted on February 29, 2016 in response to USCIS proposed rule, “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers.” This rule was published in the Federal Register on December 31, 2015. CLINIC’s comments focused on opposition to the proposal to eliminate the longstanding requirement that USCIS adjudicate applications for employment authorization within 90 days of filing the application or provide an interim EAD for up to 240 days to certain applicants for immigration benefits. See8 CFR §274a.13(d).

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Access to Asylum for Foreign Nationals with Prior Removal Orders Sign On Letter

CLINIC and 63 other organizations have asked the secretary of Homeland Security and the attorney general to allow asylum seekers to apply for protection from removal.

In a Nov. 9 letter, the organizations asked the government to exercise prosecutorial discretion in order to cancel or decline to move forward with orders for removal. The detailed letter addresses deficiencies in the process for asylum applicants to avoid being deported and outlines specific change recommendations. It was signed by civil, immigrant and human rights organizations, labor, faith and social services organizations.

CLINIC advocates for all asylum-seekers to be able to access protection and justice in the United States.

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Comments to Draft Guidance on Extreme Hardship

On November 23, 2015 CLINIC submitted comments to the U.S. Citizenship and Immigration Services (USCIS) regarding its proposed guidance interpreting the term “extreme hardship” as it is applied to certain waiver of inadmissibility applications. CLINIC’s comprehensive comments and suggestions focused on several key areas previously discussed in our summary of the draft guidance and below.

  • CLINIC commends USCIS on the proposed change that would allow an applicant to establish extreme hardship to the qualifying relative based upon a single scenario
  • CLINIC supports efforts to emphasize the important, established principle that hardship should be considered in the aggregate
  • CLINIC supports the reclassification of the five extreme hardship factors and requests that USCIS consider keeping education a stand-alone factor
  • CLINIC strongly urges USCIS to create a presumption of extreme hardship

 Overall, CLINIC applauds the proposed guidance that, when implemented, is expected to improve consistency in adjudications and broaden the use of this critical program for families facing hardship and separation.  Comments to the draft guidance are due today, November 23, 2015.

Advocate’s Corner: Tips for Contacting USCIS

Jill Marie Bussey

Calling USCIS’s National Customer Service Center (NCSC) can be time consuming. Here are some tips on making your communications with the NCSC more productive.

Tip #1 - Check the USCIS online case status system and processing time reports before you call. Most calls to the NCSC are about delays in case processing. Before you call USCIS, use the USCIS Case Status Online tool to check that status of your case. All you need is the USCIS Receipt Number for the case. If you sign-up for an account, you may choose to receive updated case status information via email. 

Tip #2Check the USCIS processing times reports to see if your case is beyond processing time. USCIS publishes information about the processing times for its Service Centers and field offices. The processing time reports can be found on the USCIS website.

Tip #3 – Consider submitting your case inquiry online. USCIS offers an online, e-request system for submitting queries about cases that are beyond processing time. The system also permits you to report when USCIS correspondence has sent, including receipt notices and cards, but has not been received.  The online form requires several data points, including the type of case (form type), the address of the petitioner/applicant/beneficiary, date of birth, etc.  Responses to online queries are sent by email and typically received in seven to ten working days.

Tip #4 – If you decide to call USCIS, be advised of the following pointers for making a Service Request Management Tool (SRMT):

  • Make sure the caller is a representative with a G-28 on file or paralegal
  • Have key biographical data and case information ready
  • Prepare to be on hold for a long time or consider the call-back option
  • Be prepared to take notes, including the name and Agent ID of the Officer you speak with, the Service Request Confirmation Number, date/time/duration of the call, outcome and next steps

Download a sample sheet you can use.

Tip #5 – Hopefully, your first call to USCIS will lead to case resolution. If not, you may need to follow-up by contacting the NCSC. When following up, be sure to reference the Service Request Confirmation Number, USCIS receipt number, date of filing and communications, etc.

Programs: 

What would you ask the National Visa Center?

CLINIC’s team regularly meets with the DHS, USCIS, ICE, Customs and Border Protection (CBP) and other related agencies to address problems faced by low-income immigrants and their representatives by resolving policy issues. As opportunities arise, CLINIC facilitates public engagement with key agencies. 

On October 7, 2015, CLINIC, in partnership with DePaul University’s College of Law, hosted a special engagement with Phillip Slattery, the Director of the National Visa Center (NVC). The NVC is part of the Department of State’s Bureau of Consular Affairs and handles the pre-processing of immigrant visa petitions before applicants are interviewed at a U.S. Embassy overseas.  Mr. Slattery briefed attendees on the NVC’s responsibilities and processes, recent and upcoming procedural changes, and customer services. A summary of this meeting will be shared with affiliates soon. Mr. Slattery and his team remain interested in feedback on how the NVC may better communicate with your offices and clients.  If you would like to raise a questions or provide input to the NVC, please contact CLINIC’s Advocacy team with an email entitled “NVC” at: advocacy@cliniclegal.org.  CLINIC looks forward to hosting additional engagements with the NVC and will advise local affiliates of opportunities in their area in the future. 

Programs: 

Special Immigrant Non-Minister Religious Worker Program Extended Until December 11, 2015

Ashley Feasley

On September 30, 2015, Congress passed a continuing resolution (CR), a stop-gap measure which continues funding the government at current levels and keeps the government open until December 11, 2015. The continuing resolution reauthorized the Special Immigrant Non-Minister Religious Worker Program as well as three other immigration-related programs, the Conrad 30 Program, the EB-5 Program, and the E-Verify Program for the same period of time as the resolution. The continuing resolution passed easily by large majorities in the House of Representatives and the Senate.

The Special Immigrant Non-Minister Religious Worker Program, created in 1990, allows non-ministers or other lay religious workers to come to the United States as lawful permanent residents. Currently there is a bipartisan bill in the Senate that would make the program permanent with no changes. On September 28th Representative Mike Honda introduced a companion bill to the Senate bill in the House of Representatives.

Finding a more permanent extension for the Special Immigrant Non-Minister Religious Worker Program remains an ongoing issue for CLINIC Advocacy. CLINIC is working with the U.S. Conference of Catholic Bishops (USCCB) and other advocates to find a more permanent extension.

Please share individual success stories relating to the Special Immigrant Non-Minister Religious Worker Program with CLINIC so that case examples may be shared with Congressional members. We are interested in hearing from actual visa recipients as well as from parish and diocese staff who have benefitted from the program. Please see our draft letter template as a guide to your letter writing. Feel free to send letters of support and contact CLINIC’s Advocacy team via email entitled “Religious Worker Visa Impact Example” at: advocacy@cliniclegal.org.

Programs: 

New and Proposed Rules and Policy Guidance

Fee Waivers (Form I-912)

On July 9, 2015, CLINIC submitted a second round of comments concerning revisions to Form I-912 (initial comments were submitted in May). On August 6, 2015, USCIS met with advocates to discuss further. At that time, USCIS indicated that it had received sufficient feedback on the proposed revision and no further comments were to be collected. Although Form I-912 indicates that it expired May 31, 2015, the May 10, 2013 version or other previous versions may be used until a new version is issued.

Expansion of the Provisional Waiver Program

On July 22, 2015. USCIS published a proposed rule that would expand the current provisional waiver program in two significant ways: (1) allowing other immigrant visa applicants and (2) allowing Lawful Permanent Resident (LPR) parents and spouses to be “qualifying relatives”. At the present time, only U.S. citizen parents and spouses qualify. (For more information, read our article.) 

In preparing its comments to the proposed rule, CLINIC collected feedback from affiliates representing all regions of the United States. CLINIC submitted comments on September 18, 2015. CLINIC will continue to monitor the progress of this initiative and is now preparing for the release of policy memoranda that would define the extreme hardship standard.

Board of Immigration Appeals Recognition & Accreditation

On September 17, 2015 the Executive Office for Immigration Review (EOIR) announced a new proposed rule governing recognition and accreditation (R&A).  It also issued two final rules, each addressing various aspects of legal representation. The proposed rule is titled Recognition of Organizations and Accreditation of Non-Attorney Representatives. The two final rules are titled List of Pro Bono Legal Service Providers for Individuals in Immigration Proceedings and Separate Representation for Custody and Bond Proceedings.

On September 21, CLINIC staff hosted a webinar in which it presented each proposed change and explained the implications for nonprofit organizations. CLINIC is soliciting comments for each of the key areas of proposed change and is working actively with its network of affiliates and other national organizations to provide formal written comments to EOIR by the November 30th deadline.  CLINIC chairs the BIA R&A liaison group, a forum to discuss comments on the proposed rules. Please submit comments here.

USCIS Form N-400, Application for Naturalization

On Monday, September 28, USCIS announced the extension of a comment request period for proposed revisions to Form N-400. USCIS is requesting comments on its proposed updates to Form N-400, Form N-400 Instructions, Public-facing guidance, and USCIS's proposed online N-400 form.  Comments are due by November 12, 2015. (80 FR 58292, 9/28/15). 

Draft Extreme Hardship Policy Guidance for Waiver Applications

On October 7, 2015, USCIS circulated draft guidance interpreting the term “extreme hardship” and explaining how it should be applied to waiver applications. The proposed policy guidance is in draft form only and has not yet gone into effect.

The guidance would set forth, in greater detail and specificity, how adjudicators should weigh various hardship factors in a waiver application. For example, applicants would only have to establish extreme hardship to the qualifying relative if that family member were to relocate with the applicant or remain in the United States separated from the applicant, depending on which is more reasonably foreseeable.  Currently, the waiver applicant has to establish extreme hardship under both scenarios. 

In addition, the guidance lists five special circumstances that strongly suggest the existence of extreme hardship. One of the listed special circumstances is when the State Department has issued a travel warning with respect to a country or a region of a country.

Comments on the draft guidance are due on November 23, 2015. CLINIC will be preparing model comments and circulating them to affiliates. Please see the link below from USCIS to access the text of the draft guidance and contact us at advocacy@cliniclegal.org if you have any specific questions or comments.

Programs: 

Administrative Advocacy

Jill Marie Bussey

DACA 3-Year Recall

In connection with the State of Texas v. U.S. litigation, USCIS recalled over 2,600 grants of Deferred Action Childhood Arrival (DACA) and work authorization in May 2015. USCIS increased its recall efforts dramatically following a Court Order issued on July 7, 2015. CLINIC’s response to the recall was comprehensive and collaborative, utilizing resources and the expertise of six departments: Advocacy, Capacity Building, Communications, Legalization, Operations and Training and Legal Support (T&LS). CLINIC efforts included creating a special webpage with recall resource materials; conducting a comprehensive webinar; establishing a special email address for affiliate queries; developing public outreach flyers in English and Spanish; sending over 8 email blasts to affiliates with updated recall information; coordinating with affiliates in impacted communities; providing individual case support; and engaging in direct public outreach through social media and other communications outlets.

CLINIC opposed the recall and any resulting terminations. Acknowledging the inevitability of the recall due to the Court Order, CLINIC focused its advocacy efforts on providing DHS and USCIS officials with constructive feedback on the implementation of the recall, providing information and support to affiliates, and outreach to the community. Over the course of three months, CLINIC worked closely with officials at DHS and USCIS to offer tangible feedback on the implementation of the recall with solid case examples that supported requests for recall process change and refinement. CLINIC took a lead role in each of the sixteen stakeholder calls held during the recall process.

Further, as co-chair of the Committee for Immigration Reform Implementation (CIRI) Advocacy Working Group, CLINIC’s Advocacy team led coordination efforts and communications to help inform, enhance and align advocacy efforts among CIRI. CLINIC worked closely with affiliates to support, advise, and assist them and their clients to understand and take necessary actions as well as to responsibly spread the word in the community.

CLINIC and its affiliates’ efforts throughout the summer helped result in 99.2 percent compliance with the recall. Of the 22 terminations of status issued, 12 were reinstated. As of today, all 3-year DACA grants and work authorization cards that were subject to the recall have been accounted for.

Enforcement Priorities

On June 17, 2015, DHS issued a list of Frequently Asked Questions (FAQs) relating to the new immigration enforcement priorities memo issued by the Obama Administration on November 20, 2014. Since the Priority Enforcement Program (PEP) was established on January 5, 2015, CLINIC’s Advocacy team and its partners have advocated for consistent implementation of these new enforcement priorities. In April, CLINIC joined over 100 immigrant advocates in sending a letter to DHS Secretary Johnson summarizing concerns based on lessons learned from the 2011 prosecutorial discretion initiative, providing examples of inconsistent application of the priorities, and offering recommendations.

Following the release of the FAQ, CLINIC provided a detailed analysis of the guidance and held a webinar for affiliates. While the FAQs clarify several key terms in the memo, notable issues remain unclear.

Please continue to share individual cases where ICE has failed to exercise prosecutorial discretion with CLINIC’s Advocacy team. If you have a case example of inconsistent application of prosecutorial discretion, please contact CLINIC’s Advocacy team with an email entitled “Prosecutorial Discretion Example” at: advocacy@cliniclegal.org.

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Family Detention Update

Ashley Feasley

Despite efforts by immigrant advocates to end family detention, the government’s practice of detaining immigrant mothers and their children continues. CLINIC has been especially active in the national fight to eliminate large scale family detention centers built in response to the increase of Central American families seeking refuge at the U.S./Mexico border during the summer of 2014. In late March 2015, CLINIC partnered to form the CARA Family Detention Pro Bono Representation and Advocacy Project with the American Immigration Lawyers Association (AILA), American Immigration Council (AIC), and Refugee and Immigrant Center for Education and Legal Service (RAICES). As part of the CARA Project, CLINIC has two contract lawyers on the ground at the South Texas Family Residential Facility (“Dilley”) located in Dilley, Texas. CLINIC, through the CARA Project, has been providing legal services and running a pro bono project for detained families within Dilley. CLINIC and CARA also train lawyers and Board of Immigration Appeals (BIA) accredited representatives, and lead advocacy and litigation efforts to challenge unlawful asylum, detention, and deportation policies.

Such advocacy activities have included submitting complaints to the Department of Homeland Security (DHS) Office of Civil Rights and Civil Liberties (CRCL) regarding inadequate medical care for detained mothers and children and access to counsel issues, and meeting with Jeh Johnson, DHS Secretary in a private meeting to discuss family detention concerns. CLINIC continues to advocate for an end to the inhumane practice of family detention with government stakeholders, participating in monthly White House Access to Legal Counsel meetings, Immigration and Customs Enforcement (ICE) NGO Working Group meetings, U.S. Citizenship and Immigration Services (USCIS) Asylum Working Group meetings, and DHS CRCL meetings.

On the ground, CLINIC staff members have had an extremely meaningful impact, serving approximately 5,000 women in preparation for their credible and reasonable fear interviews, in partnership with our CARA Pro Bono Project partners. Various CLINIC staff members have also travelled to Dilley to work in assisting the CARA Pro Bono Project.

Coupling the work of CLINIC and the CARA Pro Bono Project have been litigation efforts to end family detention by national advocates. In February 2015 advocates filed a motion to enforce the Flores Settlement on behalf of detained mothers and children in the U.S. District Court of the Central District of California. In April 2015, the U.S. District court issued at tentative ruling that family detention policies violate Flores. In July 2015, the U.S. District Court issued a court order requiring children no longer be detained long-term within the detention facilities.

In August 2015, the government argued that family detention was still necessary and the U.S. District Court responded that children must be released from family detention facilities and that the government must comply with the order by October 23, 2015. Currently, the government continues to imprison mothers and children, and the detained population has increased in Dilley since the issuance of the order from the U.S. District Court.

The family detention landscape continues to change. Moving forward, CLINIC will continue to work for an end to family detention and see that immigrant women and children receive meaningful access to justice. Part of this work on the ground will largely be through our partnership in the CARA Project. For more information about CLINIC’s family detention project, please visit our website. Consider volunteering your time or making a donation to support vulnerable mothers and children through the CARA Project.

Programs: 

CLINIC’s Comments on USCIS’ Proposed Expansion of the Provisional Waiver Program

The Catholic Legal Immigration Network, Inc. (CLINIC) submitted these comments to the proposed rule on the expansion of the provisional unlawful presence waiver program, published in the Federal Register on 22 July 2015. Click here for a copy of the full letter.

For more information about the proposed rule, click here. The deadline to submit comments is September 21, 2015.

For a model copy of comments on the expansion, click here.

Resources by type: 

Advocating for Special Immigrant Non-Minister Religious Worker Program

 

 

Religious Organization Support for the Special Immigrant Non- Minister Religious Worker Visa Program

May 14, 2015

 

 

 

Honorable Mitch McConnell Senate Majority Leader United States Senate Washington, DC  20510

 

Honorable Harry Reid Senate Minority Leader United States Senate Washington, DC 20510

 

Dear Senators:

 

We write to express our strong support for S. 1339, legislation which would extend permanently the Special Immigrant Non-Minister portion of the Religious Worker Visa Program (RWVP). Unless Congress acts by September 30, 2015, the RWVP will expire, leaving our religious denominations and organizations with no way to bring in, where necessary, permanent religious workers to staff our religious institutions and attend the urgent needs of the communities we serve.

The  Special  Immigrant  Non-Minister  portion  of  the  RWVP  became   law   in 1990. Originally enacted with a sunset provision, it has enjoyed broad, bipartisan support in Congress and has been reauthorized seven times since then. Under this important program, a maximum of 5,000 visas each year are available for religious workers employed by a broad range of religious denominations and organizations.

Religious communities throughout the United States that participate in the program have found these visas vital to carrying out their work. Some religious workers provide critical services in areas including religious education and care for vulnerable populations such as the elderly, immigrants, refugees, the homeless and hungry, abused and neglected children, and families at risk. Others work in areas as diverse as performing missionary work, designing and building temples, producing religious publications, sustaining prison ministries, and training health care professionals to provide religiously appropriate health care

We request that you support immediate passage of this vital legislation. Thank you for your leadership in ensuring the RWVP is extended so our institutions and communities can carry out our missions with the religious workers we need.

 

Sincerely,

 

Agudath Israel of America American Jewish Committee

Catholic Legal Immigration Network, Inc. Church of Scientology National Affairs Office Church World Service

Conference of Major Superiors of Men First Church of Christ, Scientist

HIAS

Hindu American Foundation Jewish Council for Public Affairs Jubilee Campaign

Lutheran Immigration and Refugee Service National Association of Evangelicals Rabbinical Assembly

The Church of Jesus Christ of Latter-day Saints The Jewish Federations of North America

UJA-New York Federation Union for Reform Judaism

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cc: Senator Charles Grassley, Chairman, Senate Committee on the Judiciary

Senator Patrick Leahy, Ranking Minority Member, Senate Committee on the Judiciary Senator Orrin G. Hatch

Senator Benjamin L. Cardin

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Application to Register Permanent Residence or Adjust Status

May 11, 2015

 

Laura Dawkins,

Chief, Regulatory Coordination Division

USCIS Office of Policy and Strategy

20 Massachusetts Avenue N.W.

Washington, DC 20529-2140

 

Submitted via email to: USCISFRComment@uscis.dhs.gov

 

RE: Revisions to Form I-485, OMB Control # 1615-0023, Docket ID USCIS-2009-0020

 

Dear Ms. Dawkins,

The Catholic Legal Immigration Network Inc. (CLINIC) respectfully submits the following comments related to proposed revisions to Form I-485, Application to Register Permanent Residence or Adjust Status. 

CLINIC supports a national network of community-based legal immigration services programs. This network includes over 260 programs operating out of 397 offices in 47 states, as well as Puerto Rico and the District of Columbia. CLINIC’s network employs roughly 1,400 staff, including attorneys and accredited representatives who, in turn, serve over 300,000 low income immigrants each year.

As an organization that works closely with both legal service providers and the United States Citizenship and Immigration Services (USCIS), CLINIC appreciates the changes USCIS is considering for the I-485 form. However, CLINIC urges USCIS to reconsider some of the proposed changes.  Our recommendations are explained below. 

 

Part 1. Information About You

Part 1 #24C.  The question asks for the date of final decision on an immigrant visa application.  In almost all cases, the consulate will either approve or “refuse” the application, and give the applicant the opportunity to submit a waiver or other documentation. If the immigrant visa application is approved, the applicant will not subsequently seek adjustment of status.  In those cases where the application is refused, the consular decision is still considered pending, or is not “final.”  In other situations, the consulate may question the USCIS’s approval of the underlying petition, and return the petition to the agency for a subsequent adjudication. Only if the applicant is denied for a ground of inadmissibility that is unwaivable would the consulate’s decision be considered final.  Therefore, assuming the USCIS wants to know the outcome of the immigrant visa application, we suggest that it delete the word “final.”

 

Part 4. Information About Your Marital History

Part 4 #4G. It is unclear why the agecy needs to know where the applicant’s spouse is employed.  This information is not relevant to the applicant’s eligibility to adjust status.  We suggest that this question be deleted.

Part 4 #7.  This should start with the words “If yes,” since it assumes the current spouse is a U.S. citizen.

 

Part 7. General Eligibility and Inadmissibility Grounds

Part 7 #11. After 11A, consider adding: “If you answered yes, please answer the following:”

Part 7 #12.  Health-related grounds of inadmissibility are determined by the designated civil surgeon, who is empowered to issue a Class A or Class B certification.  These decisions are based on questions asked during the medical exam, and include questions regarding past illegal drug use.  We recommend that you delete this question, given that all health-related questions are covered in the medical exam.  This question is no more appropriate on the I-485 than other health-related questions concerning infectious diseases, mental disabilities with associated harmful behavior, or vaccinations.

Part 7 #13.  There is no end parenthesis after the word “Forces.”

Part 7 #53.  Only current or past receipt of public cash assistance programs can be considered by the agency in determining whether the applicant is likely to be considered a public charge.  See “Inadmissibility and Deportability on Public Charge Grounds,” 64 Fed. Reg. 28676-88 (May 26, 1999). We suggest that you add the word “cash” between “public” and “assistance.”

Part 7 #57. Only willful and material misrepresentations would trigger potential inadmissibility. We recommend that you add those two words to the question so that it would read as follows: Have you EVER willfullylied about, concealed, or misrepresented any material information on an application or petition to obtain a visa, other documentation required for entry into the United States, admission to the United States, or any other kind of immigration benefit?

Part 7 #58.  Only false claims of citizenship made to gain a benefit under state or federal law would trigger potential inadmissibility.  We recommend that you add that limiting phrase to the question so it would read as follows: Have you EVER falsely claimed to be a U.S. citizen (in writing or any other way) to gain a benefit under state or federal law?

Part 7 #63 and #65.  These two questions ask for the same information.  Only one should be included on the form.

Part 7 #64. This question asks if the applicant has ever entered the United States without being admitted or paroled.  Part 1 #20 asks “In what immigration status did you last enter the United States? (visitor; student; exchange visitor; temporary worker; parole, without inspection, etc). The term “admitted or paroled” is a legal term that is unlikely to be understood by the applicant.  Since you have used the word “inspection” earlier to describe a way of entering the United States, we suggest that you continue to use this term.  The question would then read as follows: Have you ever entered the United States without being inspected?

Part 7 #66.  The word “respectively” does not add anything to the meaning of the question and we suggest you delete it.  We suggest that you substitute the word “inspected” in place of “admitted or paroled” as explained above.

Part 7 #67.  We suggest that you substitute the word “inspected” in place of “admitted or paroled” as explained above.

 

Finally, we urge you to reconsider the length of the Instruction Booklet.  At 117 pages, the document is overly long and intimidating to potential applicants. 

 

Thank you for your consideration of these comments.  Please do not hesitate to contact me at 301-565-4829 or jatkinson@cliniclegal.org, with any questions or concerns about our recommendations.

 

Sincerely,

 

Jeanne M. Atkinson

Executive Director

 

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Joint USCCB-CLINIC Letter on Executive Action

On September 9, 2014, Most Reverend Eusebio Elizondo, Chairman of the Committee on Migration of the U.S. Conference of Catholic Bishops (USCCB), and Most Reverend Kevin W. Vann, Chairman of board of directors of the Catholic Legal Immigration Network, Inc. (CLINIC) implored Homeland Security Secretary Jeh Johnson to work with the President to authorize deferred action for deserving groups. The bishops state, “With immigration reform legislation stalled in Congress, our nation can no longer wait to send the suffering of family separation caused by our broken immigration system.”

 

The bishops, on behalf of USCCB and CLINIC, recommend steps to address the unacceptable family separation caused by our broken immigration system. 

 

Read a copy of the joint USCCB-CLINIC letter (PDF)

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CLINIC and Other Advocates Comment on Interim Guidance Related to U Nonimmigrant Status and Adjustment of Status Provisions

The interim guidance recently issued by USCIS provides much needed security for immigrant crime victims and their families.  However, as the advocates note in comments to USCIS Director Leon Rodriguez, issues still remain related to the agency’s interpretation of the two new U visa qualifying crimes -- stalking and fraud in foreign labor contracting.  Additionally, the advocates request that USCIS provide more detail on implementation of age-out provisions and grant parole to conditionally granted U visa derivatives after the U visa cap has been reached each year. 

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CLINIC Submits Second Round of Comments to DACA Application Form

Taking the opportunity to submit further comments to USCIS about the DACA application and renewal process, CLINIC commended the agency for the changes it did make, including extending the DACA renewal application window to 150 days, simplifying the education-related questions, and streamlining the application requirement for renewal applicants.  CLINIC also encouraged USCIS to make additional changes to the form and instructions to help both initial and renewal applicants better navigate the application process.  Among the chief concerns for CLINIC and its affiliates is ensuring that DACA recipients who timely file their renewal applications do not lose work authorization and accumulate unlawful presence. 

 

For more of CLINIC’s recommendations:

CLINIC's DACA Renewal Comments (5-5-14) (PDF)

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N-400 Filing Tips and other Information from Meeting at USCIS Headquarters

Dear affiliates,

 

USCIS recently revised its form N-400, Application for Naturalization.  The agency will now only accept the newest version of Form N-400, dated 09/13/13.

On February 20, 2014, USCIS hosted a national stakeholder call with the public to provide an overview of and answer questions about changes made to the Application for Naturalization, Form N-400.  Following the call, several nonprofit organizations and advocates met with USCIS to seek answers to the questions and concerns the new N-400 generated.

Below is a series of questions submitted by advocates to USCIS Headquarters regarding the new Application for Naturalization, Form N-400, as well as answers provided by USCIS during a meeting with advocates on April 24, 2014. Please note that this is not an official USCIS document.  The questions to USCIS are in bold type, the answers by USCIS are in red type, an explanation of the question is in regular type, and CLINIC's comments are in italics. 

USCIS has also issued a list of Filing Tips for the new Form N-400.  Many of the issues raised in the tips are also explained below.

 

Contributors:  Catholic Legal Immigration Network, Inc. (CLINIC); Immigrant Legal Resource Center (ILRC); Asian Americans Advancing Justice, Los Angeles; American Immigration Lawyers Association (AILA); Immigration Advocacy Network (IAN); National Association of Latino Elected and Appointed Officials (NALEO).


 

Stakeholder Meeting with USCIS Regarding New N-400

Date: April 24, 2014

 

 

General Questions

(1)  Will USCIS accept forms that have both electronically input information and handwritten answers?

It is often the case that applicants and representatives filling out the N-400 form electronically, may need to include handwritten answers in the form, both because the electronic version does not permit answers in certain formats and for purposes of accuracy. For example, applicants do not often recall exact dates. Many times applicants only recall the month and year, or prefer indicating that the date is an approximation or “Present.”

Some local USCIS offices have informed practitioners that if they are filling out the form electronically, they should not include any handwritten answers, because doing so will delay processing or not upload information properly into USCIS’s database.  Our concern is that not allowing applicants to include handwritten answers where they believe it is necessary for accuracy purposes will prevent applicants from providing accurate information.  Also, in workshop settings, it is often the case that Forms G-28 and N-400 are partially completed(electronically) ahead of time and the remainder of the form by hand.  Requiring applicants to submit forms that are either entirely completed by hand or electronically will present an additional challenge for applicants and practitioners, and may potentially cause applicants to submit less than accurate information.

Yes, USCIS will accept forms that have both electronically-input and handwritten information, and processing will not be delayed.  The agency recommends applicants to use one method or the other.However, if the dropdown menu does not include the appropriate option, you may handwrite it in.  If you have typed your information into a form with a barcode, do not make changes by crossing out and entering new information by hand.  Instead, make the correction on the computer and re-print that page of the form. 

(a)   When filling out the form electronically, how should month/day/year be entered, if the exact date is unknown?

If the exact date is unknown, leave that section blank.  If some, but not all of the information is known, write that by hand on the form or explain on an additional sheet of paper.  The agency is working to add an option to indicate that the response is unknown.

 

Advocates recommended that USCIS add an option "approximate" to the form to permit applicants to complete the date section even if the exact day is unknown.

 

(2) Will USCIS accept electronically filled out applications that do not have a barcode?

Some applicants and providers have had difficulty downloading the revised form that shows the 2-dimensional (“2D”) barcode.  For some, this is due to technology issues. However, for other providers, their form programs do not have barcode capability. This means they can fillout the form electronically, but the barcode will not show up and, therefore, will not capture electronically input information. 

Yes, such applications will be processed using Optical Character Recognition software, 

Make sure that you download the pdf form and use the most recent version of Adobe Acrobat to properly completeand save the barcoded forms.  Some internet browsers work better than others. 

Note from advocates: people have had success using Internet Explorer to be sure the barcode is showing and test print it. 

How will “additional pages” be processed when the N-400 is completed electronically? 

The revised N-400 instructions state that “If extra space is needed to answer any question, attach an additional sheet(s) of paper. You must provide the following information on the top of each additional page…” (see page 2 of instructions).This is likely to be done in a Microsoft Word document or blank sheet of paper, which will not include the 2D Barcode. How will this affect processing? What steps do applicants and providers need to take to ensure that additional information/addendums are taken into consideration?

Additional pages will be scanned and processed with no delay.  Also see the filing tips prepared by the Office of Intake and Document Production.

 
(3)   If someone applies using the previous version of the N-400, before May 5, 2014, will USCIS interview the applicant based on the questions in the new version or the version the applicant submitted?

Questions asked at naturalization interviews are based on eligibility requirements, not on the application form.  USCIS adjudicators may ask questions from the new form, even if the pre-May 2, 2014 form was submitted. 

 

(4)   What should be entered if the applicant does not know, for example, a child’s A-number?

Leave the section blank, and include a written explanation on a separate page.

 

(5)   If information is unavailable (e.g., home address of current spouse who left his family 10 years ago), how should the applicant answer this question?

Write “unknown” in the address field, and explain on a separate sheet of paper.

 

(6)   Suppose an applicant files the old N-400 well before 5/5/14 along with a fee waiver request (I-912), but USCIS erroneously rejects the fee waiver and returns the application to the applicant at such time that the applicant is unable to file the old N-400 again before 5/5/14, will USCIS accept the old (originally submitted) N-400 in that circumstance?

Note: we are waiting for guidance in response to this question.

 

(7)   How do applicants from American Samoa or Swains Island (US Nationals) indicate they do not have an A-number?  

Many of the fields in the revised N-400, including the A-number field, do not accept “N/A”. The A-number field only accepts a 9-digit response. Will there be any delays or problems if this space is left blank? Similarly, US Nationals are not permanent residents and therefore do not have permanent resident cards. However, the N-400 instructions instruct applicants to enter “N/A” if an item is not applicable or if the answer is “none” (see page 2 of instructions). Since this question is not applicable to US Nationals, how should they respond to this item?

Leave this section blank.

Part 4: Information About Your Residence

(1)   According to the instructions, applicants who received benefits under VAWA may provide a safe address. What address (if any) do applicants enter if they did not receive VAWA benefits, but spent some time at a shelter with a confidential address?

Provide a safe address, or provide only the city and state, and clarify the response at the interview.

 

(2)   Is the +4 of the ZIP code required?

No.


Part 5: Information About Your Parents

(1)   The instruction to Part 5 advise applicants with US citizen parents to visit the USCIS website for further information (presumably on derivation and acquisition of citizenship).  The link provided (www.uscis.gov), directs applicants to the USCIS website homepage, which does not immediately provide information about derivation or acquisition of citizenship. Would USCIS consider providing a different link that directs applicants to a specific part of the website with relevant information?

 Yes, USCIS will include the proper link in the filing tips, and will include it on the form the next time it is revised.

 

(2)   How should an applicant respond to Part 5. Item 1, if her parents were married, but not to each other, at the time of her birth?

 Answer no.

 

Part 7: Information About Your Employment and School You Attended

(1)   If the applicant is or was unemployed, where does she write “unemployed” – at “employer/school name” or “your occupation” and how does she answer the rest of the questions in that section?

 Indicate “unemployed” in the section that asks for the name of your employer.  Enter the dates of unemployment. 

 

 

Part 8: Time Outside of the United States

(1)   What is USCIS’s reasoning behind limiting the information requested in Part 11. Item 9.B. to trips taken outside the United States during the last five years?

While this is a welcomed change to the previous version of the N-400, which required applicants to list all absences since becoming a lawful permanent resident, it is unclear whether this change on the form also indicates a shift in investigating trips prior to the statutory period, and issues such as abandonment of permanent resident status. For example, advocates in Los Angeles have received mixed information from local offices. Some have been told that USCIS will no longer investigate abandonment issues, only physical presence and continuous residence. Others have been told that USCIS will continue to investigate abandonment on a case by case basis. 

While the form has been simplified to require less information, USCIS will continue to investigate abandonment of residence from the time the applicant became a lawful permanent resident.  Other agencies, such as Customs and Border Protection, may have information related to the issue of abandonment.

 

The November 7, 2011 USCIS Memo, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens, established a list circumstances when the agency would consider the issuance of a Notice to Appear and the institution of removal proceedings to be a priority.  Those circumstances included where an NTA was required by statute or regulation and where there were cases that involved public safety threats, criminal offenses, and fraud. Cases involving abandonment of residency were not cases identified as NTA "priorities" in the November 11, 2011 memo.

 

(a)  What would trigger an investigation of abandonment and what guidance will USCIS be issuing to applicants?

 The statutory requirements for naturalization have not changed.  No additional information will be issued to applicants. 

 

Part 9: Information About Your Marital History

(1)   Does “separated”in Part 9. Item 1. mean legally separated?

 The revised form provides the new category of “separated” to allow the applicant to indicate how his/her marriage ended.  Many clients have been estranged from spouses for many years - does this constitute separated?

Yes, “separated” means legally separated.

 

(2)   What if current spouse’s previous spouse information (Part 9. Item. 8) is unknown? How will the absence of that information (in whole or in part) affect the applicant’s application/eligibility for naturalization?

Provide a written explanation on a separate page.  Eligibility will be determined on a case-by-case basis.

 

Part 10: Information About Children

(1)   How should children’s addresses be listed if they reside in an area without a formal postal address?

 Provide information to the best of your ability, attaching a written explanation if necessary.

 

Part 11: Additional Information

(1)   Can Part 11. Item 7, be read to mean “required” tax return?

Many applicants do not earn enough (or any) income to file a tax return.  In those cases, should applicants be checking the 'yes' or 'no' box?

No, the question cannot be read to mean a “required” tax return.  Check the “yes” box and provide an explanation on a separate page.

There are many instances when filing a tax return is not required.  There may be a perfectly legitimate reason that the applicant is answering this question with a "yes" answer.

 

(2)   Can USCIS clarify what “badly hurting”(Part 11.Item 14.d.)someone means?

Neither the Form N-400 nor its accompanying instructions provide a definition for this term. “Badly hurting” is a vague/ambiguous term that can be subject to one’s own interpretation of hurting. For example, would slapping a neighbor in the face constitute trying to hurt or badly hurting someone?

The language of the form was changed to offer simplified language.  No further clarification can be given.  USCIS will look at the circumstances of each case. 

Note from advocates: this can likely be read to mean intentionally and severely injuring another person as specified on Form I-485, question 14c.  See that form for an understanding of the intent behind this question.

 

(3)   Can USCIS clarify the following terms:“self-defense unit,”“police unit,” and“rebel group”?

No further clarification can be given. 

 

(4)   We have the position that victims of genocide and torture should not be required to answer “yes” to Part 11. Items 14A. and 14.B., is that also USCIS’s position?

A literal reading of the question, “were you ever involved in any way with…” suggests the applicant must answer in the affirmative, even if she or he was the victim.  This seems inconsistent with trying to identify perpetrators of these acts.

If the applicant was solely the victim of genocide or torture, answer no. 

 

(5)   Regarding paramilitary membership(Part 11. Item. 15.B.),what if applicants belong(ed) to a paramilitary branch organization registered in the United States?

Respond “no.”  USCIS is not looking for organizations that are associated with the United States military, such as ROTC. 

 

(6)   If the applicant was a prisoner in a labor camp, should the applicant answer in the affirmative to Part 11. Item. 16.?

 Note: we are waiting for guidance in response to this question.

 
(7)   How does USCIS define “weapons training” (Part 11.Item. 19)? Would this include recreational martial arts classes, target practice at a shooting range?

 USCIS requires applicants to respond “yes” even if weapons training was recreational.  Explain the circumstances on a separate sheet of paper. 

(a)   For someone who has received weapons training, how would that affect his/her eligibility for naturalization?

Applications are adjudicated on a case-by-case basis.

It is very important to discuss all the facts concerning  military service, police service, self-defense participation, weapons training, etc. with the applicant.  These activities may be perfectly innocent and not involve activities that would bar naturalization – or they may involve conduct that would make the applicant ineligible for naturalization.  A “yes” response to these questions alone does not indicate ineligibility, but does require detailed discussion with the applicant.

 

(8)   Would Part 11. Item. 22.include speeding, never arrested?

 No

 Note: advocates recommend that applicants continue to list traffic violations on the appropriate place on the application. 

 

(9)  Regarding Part 11. Item 28.B., if the applicant was only in jail for a few hours, does she need to include that information given that the question only provides space for “days,” “months,” and “years”?

Yes. Indicate one day.

 

(10) We assume that Part 11. Item.30, regarding misrepresentation to obtain any public benefit in the U.S., means willful and knowing, is that correct? How would a “yes” answer impact an applicant’s eligibility for naturalizations?

No, the question is not limited to willful and knowing misrepresentation.  Answer yes regardless of intent.  Applications are adjudicated on a case-by-case basis.

 

(11) USCIS clarify who is required to submit a Status Information Letter from the Selective Service (Part 11.Item. 46.C.2.)?

The revised N-400 states that a male applicant who lived in the U.S. between the ages of 18 and 26, but did not register with the Selective Service and is now 26 years or older, must attach a statement explaining why he did not register and a status information letter from the Selective Services.  On the N-400 Stakeholder call, when asked, a USCIS representative said a 50 year-old applicant would not have to submit a status information letter because he would be outside the statutory period. Please clarify.

Applicants between the ages of 26 and 31 should provide a status information letter.  Applicants over the age of 31 need not. 

 

(12) Are applicants required to submit a status information letter with their Naturalization application?

The new form explicitly states that the applicant must submit a status information letter from the  Selective Service along with an explanation. It has taken up to 30 days to obtain the status information letter and we are concerned that some potential applicants may not apply/delay applying due to this additional burden. Would USCIS allowapplicants to bring their status letter to their interview instead or mailing it with their application? 

Applicants may bring the letter to their interview.

 

(13) There are a few nations where serving in the army is a mandatory requirement (e.g.  Korea). These people get stationed randomly, and if they were stationed as prison guard, how would that affect their eligibility?

 Answer yes, and explain on a separate sheet of paper.  Applications are adjudicated on a case-by-case basis.

 

(14) If the applicant was a child soldier (impressed against his will), is an explanation necessary and/or will this be held against him regarding good moral character?

Yes, explain on a separate sheet of paper.  Applications are adjudicated on a case-by-case basis.

 

Part 14: Statement of Applicants Who Used an Interpreter

(1)   Can USCIS provide additional guidance on who is expected to complete the interpreters section, especially for those assisting family members or those volunteering in group processing events?

Currently, the instructions to Part 14, seem to suggest that only those whoanswered “yes” to Part 2., Item Numbers 11 or 12., and during the completion of the form used an interpreter to interpret the questions on the form, are required to complete this section (as well as the interpreter), is this correct?

(2)   If a provider used a written translation of questions in Part 11 to interview the applicant, must the provider then complete the interpreter statement?

Anyone who interpreted or who shared written translations must complete this section, even if the applicant is not requesting an exemption based on age and language ability.

Note: advocates are continuing to discuss this issue.

 


 

CLINIC continues to advocate with USCIS on many of the issues related to the new N-400 raised in the notes above.  Please continue to share your experiences and problems with us by emailing Rommel Calderwood at rcalderwood@cliniclegal.org.

 

 

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CLINIC's Comments in Response to Changes in Form I-821D

On February 14, 2014, CLINIC submitted comments to U.S. Citizenship and Immigration Services about the agency’s proposed changes to Form I-821D, the form used to request Deferred Action for Childhood Arrivals (DACA).  The proposed changes to the form establish procedures for individuals to demonstrate continued eligibility for deferred action – extending the two years of deferral originally granted to them. 

 

CLINIC is pleased that renewal applicants will not, for the most part, have to submit copious amounts of additional supporting evidence in support of their requests.  Nevertheless, we encourage USCIS to make several changes to the proposed form and instructions to help both initial and renewal applicants better understand the application process.  Among our chief concerns is that the proposed 120 day window for submitting renewal requests is unreasonably short and could result in renewal applicants losing work authorization and accumulating unlawful presence. 

 

Please see CLINIC’s other recommendations, below.

 

 


 

 February 14, 2014

 

Laura Dawkins

Chief, Regulatory Coordination Division, Office of Policy and Strategy

U.S. Citizenship and Immigration Services, Department of Homeland Security

USCISFRComment@uscis.dhs.gov

 

Re: Agency Information Collection Activities: Consideration of Deferred Action for Childhood Arrivals, Form I-821D; Revision of a Currently Approved Collection

 

Dear Ms. Dawkins,

 

The Catholic Legal Immigration Network, Inc. (CLINIC) submits the following comments in response to USCIS’s December 18, 2013 notice regarding proposed changes to Form I-821D (Consideration of Deferred Action for Childhood Arrivals) and the accompanying instructions. 

CLINIC supports a national network of community-based legal immigration service programs. The network includes over 240 immigration programs operating out of 397 offices in 46 states, Puerto Rico, and the District of Columbia. CLINIC’s network employs roughly 1,400 staff, including attorneys and accredited representatives who, in turn, serve over 300,000 low income immigrants each year. CLINIC and its member agencies provide free and low-cost representation to thousands of applicants for Deferred Action for Childhood Arrivals (DACA).

 

Introduction

CLINIC commends USCIS for developing a renewal process that allows initial DACA recipients who meet the guidelines to continue to benefit from deferred action.  We are especially pleased with USCIS’s decision to limit the circumstances in which renewal applicants need to submit additional supporting evidence.  Nevertheless, we encourage USCIS to make several changes to the proposed form and instructions to help both initial and renewal applicants better understand the application process.  Among our chief concerns is that the proposed 120 day window for submitting renewal requests is unreasonably short and could result in renewal applicants losing work authorization and accumulating unlawful presence.  We urge USCIS to extend the renewal period to 180 days before expiration of status and to automatically extend deferred action and work authorization for renewal requestors whose applications are pending adjudication.    

 

Form I-821D

Overall Structure of Proposed Form I-821D

 

Form I-821D contains questions for both initial and renewal applicants that are intermingled with each other throughout the form.  Applicants are likely to have difficulty determining which questions are for initial applicants, renewal applicants, or both.  Certain questions are labeled as “For Initial Requests” or “For Renewal Requests,” but many questions do not have any kind of label.  For example, the “Removal Proceedings Information,” “Processing Information,” and “Criminal, National Security, and Public Safety Information” sections do not have any labels.   

Recommendation:  To make it easier for initial and renewal applicants to successfully complete the form, sets of questions for initial applicants only and renewal applicants only should be clustered together.  Specifically, the form should start with Part 1, Questions 1-4, which ask for the type of applicant (initial or renewal), the full name of the applicant, and U.S. mailing address.  The next set of questions should be for initial applicants only, followed by another set of questions for renewal applicants only.   The last set of questions would include those for both initial and renewal applicants.  This format would resemble USCIS Forms I-360 (Petition for Amerasian, Widow(er), or Special Immigrant) and I-131 (Application for Travel Document), which cluster questions for different types of applicants or immigration benefits together.  We also suggest that USCIS employ the one column format utilized in these forms, with shaded and captioned bands separating each section of the form, making it easier for the applicant to read and determine which sections to complete.

In the alternative, if USCIS adopts the current form structure, it should clearly and consistently identify which sections or questions are meant for initial applicants, renewal applicants, or both.  

 

Page 1, Part 1, Questions 1 and 2.a., Initial or Renewal Applicant

In questions 1 and 2.a., the form asks whether the applicant is an initial or renewal applicant.  Individuals who applied for DACA, received a denial, and seek to re-apply are likely to be confused about how best to answer this question.  

Recommendation:  Question 1 should be amended as follows (new language in bold italics):

Consideration of Deferred Action for Childhood Arrivals – Initial Request (includes applicants who are re-applying after an earlier application was denied)

 

Page 1, Instructions

Given the complexity of the DACA request process for both initial applicants and renewal applicants, we appreciate USCIS making a clear reference to read the accompanying instructions for information on completing the form.  Many current DACA recipients are anticipating the renewal request process and plan to submit requests as soon as possible.  While the instructions include a note specifying that USCIS may reject a renewal request filed more than 120 days prior to the expiration of a current period of deferred action, this information is absent from the form itself.  While we urge USCIS to extend this period to 180 days, the application form itself should reference the renewal application period ultimately determined by the agency.  Renewal applicants, especially those who are pro se, would benefit from a more prominent instruction. 

Recommendation:  The preliminary instruction on page 1 of Form I-821D should be amended as follows:

START HERE.  Type or print in black ink.  Read the instructions for information on how to complete this form.  Renewal requests may be submitted up to 180 days prior to the expiration of your current period of deferred action.

 

Page 2, Part 1, Question 20.c., Current Status and Pending Requests

Renewal applicants must explain whether they have any pending immigration-related requests or have received any immigration status.  Renewal applicants should not be asked to provide this information because it is unnecessary and confusing.  Many applicants, especially those proceeding pro se, are likely to lack an understanding of the terms “immigration status” or “immigration-related requests.”  Requiring this information may delay the timely completion of the application, particularly in group processing workshops, where individuals rarely have complete information on their entire immigration history.  Information regarding pending requests is irrelevant to determining a requestor’s eligibility for DACA, as the guidelines require only that an applicant was without lawful status as of June 15, 2012 and at the time of the DACA request.

Recommendation: USCIS should remove question 20.c. from the application form.  If this section is retained, USCIS should provide examples of immigration benefits commonly obtained by DACA recipients in parenthesis or in a drop down menu on the electronic version of the form.  

     

Page 3, Part 1, Education and Military Service Information (For Renewal Requests Only)

The complicated structure of this section is likely to cause confusion, particularly for pro-se applicants.  Applicants who indicate that they were “currently enrolled in school” at the time their initial DACA request was approved (Item 25.d.) are directed to read through Items 26 – 28, a series of multi-part statements and repetitive answer options regarding educational history and current educational status.  The answer options provided are highly specific, yet some terms within this section are not defined.  For example, Question 25.d. refers to being enrolled in “school,” broadly.  Since it does not clarify the term, applicants may be confused as to whether it refers to any school that is considered qualified education for DACA (elementary, middle school, high school; but also GED, literacy, and career training programs).  The instructions do not state where to proceed if the applicant does not mark 25.d.    

An applicant reviewing Items 26 – 28 must select one item that describes her specific educational status at the time she was initially approved for DACA and her current educational status.  We appreciate that USCIS has expanded the qualifying education options for renewals beyond those described in the Frequently Asked Questions (dated January 18. 2013), however, the limited options provided unfairly impose different standards on renewal requestors based on how they initially met the education requirement.  Renewal requestors who were previously enrolled in 1) elementary, middle school, or high school or 2) an education, literacy, or career training program must demonstrate that they have since graduated or made substantial, measurable progress toward graduating or completing that program.  In contrast, those who were enrolled in a program assisting students in obtaining a high school diploma or passing the GED exam (or other state equivalent) must pass the exam or receive a high school diploma.  No rationale has been provided for these distinctions.

Further, these different standards are likely to be confusing to applicants who may have difficulty interpreting the form and identifying which standard applies to them.  Item 29 instructs an applicant who does not find his circumstance described in the options available to indicate that he has not met the educational guideline, even if he is presently enrolled in a school or program that would otherwise meet the educational requirement.

Requestors who have completed an education, literacy, or career-training program must be employed in the field of their training, or be enrolled in post-secondary education, job training, or an employment program in order to renew deferred action.  This requirement presents a difficult challenge to DACA recipients who have made substantial progress in their qualifying education, literacy, or career training program, but who, like many individuals in this job market, struggle to find work or are forced to accept employment outside their field of training and cannot afford further education.  Applicants who make good faith attempts to find employment should not be penalized after completing qualifying education, literacy, or career training programs.

Recommendation:  Below is one suggested format for simplifying the structure and content of the current Education and Military Service Information section.  DACA recipients who, at the time of their renewal request, are enrolled in any school or program that would satisfy the initial educational requirement should be able to demonstrate continuing eligibility, regardless of the type of program they were enrolled in previously.    Proposed format:

If you selected Item Number 25 – 25.c., move on to Part 2. Processing Information.

If you selected Item Number 25.d., respond to Items 26 – 27.

26. At the time I was last approved for Deferred Action for Childhood Arrivals, I was enrolled in:

1) U.S. elementary school, middle school, high school, or secondary school.

2) An education program assisting students in obtaining a high school diploma or passing a GED exam.

3) An education, literacy, or career training program designed to lead to placement in postsecondary education, job training, or employment.

 
27. Indicate how you currently meet the educational guideline:

1) I have graduated from high school/obtained a high school diploma.

2) I have passed the GED or equivalent state exam.

3) I am currently enrolled in a U.S. elementary school, middle school, high school, or secondary school and have made substantial progress toward graduating.

4) I am currently enrolled in a new/different education program that assists students in either obtaining a high school diploma or its equivalent under state law or in passing a GED exam or equivalent state exam.

5) I am currently enrolled in a new/different education, literacy, or career training program designed to lead to placement in postsecondary education, job training, or employment.

6) I have completed an education, literacy, or career-training program. 

Item 29 should be revised to indicate that an applicant whose circumstance is not reflected in Items 26 or 27 should explain his continuing eligibility in Part 9. Additional Information.  Language suggesting that the applicant does not meet the educational guideline should be removed.  USCIS should consider the completion of an education, literacy, or career-training program as equivalent to a high school diploma or a General Education Development (GED) certificate and sufficient for renewal. 

 

Page 3, Part 1,“At the time I filed my Form I-821D that USCIS approved for my initial period of Deferred Action as a Childhood Arrival:”

Some applicants may have met the education requirement in multiple ways; for example, they may have graduated from high school in the U.S., but marked “currently enrolled in college” on their initial request.  In other cases, applicants were approved after responding to a Request for Evidence (RFE).  During the period they responded to the RFE, their educational status changed.  For example, an applicant may have been enrolled in high school at the time she submitted her initial application and later issued an RFE for information unrelated to the education guideline.  In the meantime, she graduated from high school and so she included a copy of her diploma in her response to the RFE.  Both of these scenarios may cause confusion for renewal applicants and raise the concern that renewal requests may be denied due to inadvertent inconsistencies.

Recommendation:  Provide guidance to USCIS adjudicators clarifying that renewal requests should not be denied solely because of an inconsistent response to this question, where the initial DACA application, including any supplemental evidence submitted, indicates that the applicant satisfied the educational requirements for approval.  Additionally, rather than ask applicants how they satisfied the education guideline in their initial request, Question 26 could be amended to ask how applicants demonstrated their eligibility on their last approved application.

 

Page 4, Part 2, Questions 1-6, Processing Information

Form I-821D requests processing information, including ethnicity, race, height, weight, etc.  These questions may deter potential requestors who fear revealing their identity to the government and are worried about how their personal information might be used.  Similarly, Form N-400 (Application for Naturalization) requests this type of information.  On page 5 of the N-400, USCIS clearly indicates that this information is required for background checks and the section is entitled “Information for Criminal Records Check.”  While the instructions to Form I-821D inform applicants that providing this information will reduce the time they spend at ASC appointments, Form I-821D itself does not clearly indicate why this information is being requested or how it is being used. 

Recommendation:  Form I-821D and/or instructions should contain an explanation of how information about applicants’ race, ethnicity, and physical characteristics will be used and the rationale for requesting such information.  The I-821D form and/or instructions should also indicate that USCIS will not make DACA determinations based on applicants’ gender, race, or physical characteristics.  Greater transparency will help applicants better understand the process.  

           

Page 5, Part 4, Questions 4 – 5, Travel Information

Questions related to whether a renewal requestor has a passport and/or a border crossing card are not relevant to determining whether the requestor is eligible for DACA renewal.  DACA recipients are not required to obtain a passport, and in some cases, it may be complicated and/or time consuming to obtain a passport.  Including questions about applicants’ passport numbers and expiration dates would be unnecessarily burdensome for certain applicants.

Recommendation:   Questions 4 – 5 of the Travel Information section should be removed.

 

Page 5, Part 5, Criminal, National Security, and Public Safety Information

In the Criminal, National Security, and Public Safety section, the form asks whether applicants have EVER engaged in various criminal activities.  Renewal applicants are not given instructions as to whether they must report on incidents occurring before or after receiving DACA.   It is burdensome for renewal applicants to provide information and records that they already provided at the time of the initial application.  It is also unnecessary for USCIS adjudicators to assess information that was already reviewed and evaluated during the initial application process.  

Recommendation:  The form should indicate that renewal applicants need only provide information and records related to charges or convictions that occurred since they were granted DACA.   Specifically, the form should include the following sentence:

For Renewal Applicants:  With regard to criminal/national security and public safety questions, you need only report on incidents and provide records related to incidents that occurred since your initial DACA application was approved.  You do not need to report on or re-submit records that you already reported on or provided to USCIS. 

 

Page 5, Part 5, Question 1, Juvenile Convictions      

An applicant is required to indicate whether he or she has EVER been arrested for, charged with, or convicted of a felony or misdemeanor in the United States, even if the incident was disposed of in juvenile court. The form further requires that a requester provide documents, including all arrest records, charging documents, dispositions, and sentencing records.  The form only allows a person to withhold the records if the disclosure is prohibited under state law.

Though juvenile records are public in some states, many states do not permit the disclosure of juvenile records to parties outside the juvenile justice system without first obtaining a court order.  To ensure uniform treatment of all DACA requests, USCIS should not require applicants to reveal whether they were charged with or convicted of a felony or misdemeanor if that incident was handled in juvenile court. Removing this requirement will prevent the unavoidably inconsistent and unfair treatment of applicants who are subject to divergent state laws.   

Recommendation:  The form should be amended to read (new language in bold italics): 

Have you EVER been arrested for, charged with, or convicted of a felony or misdemeanor in the United States?  Do not include minor traffic violations unless they were alcohol- or-drug-related. Do not include incidents handled in juvenile court.

 

Page 5, Part 5, Questions 1 and 2, Arrest Record

Applicants must provide an arrest record for any felonies or misdemeanors in the U.S. or any crimes elsewhere.  It is unclear whether documents such as police reports are covered by “arrest records.”  This uncertainty may deter some individuals from requesting DACA.  The form and instructions should limit evidence of criminal convictions required for DACA cases to the record of conviction.   This would afford more predictability and accuracy in determining DACA eligibility and assure that the adjudicator is only considering relevant evidence.

Recommendation:  The form should be amended to read (new language in bold italics):

If you answered “Yes,” you must include a certified court disposition, charging document, verdict or judgment of conviction, or sentencing record for each incident, unless the records involved incidents handled in juvenile court or disclosure is prohibited under state law.

 

Form I-821D Instructions

   

Page 1, When Should I Use Form I-821D?

Renewal applicants are instructed to file the Form I-765 Worksheet (I-765WS) along with their I-821D renewal applications.   In other words, renewal applicants are being asked to re-establish economic necessity.

Recommendation:  Given that these applicants have previously demonstrated economic necessity, they should not be required to demonstrate economic necessity at the time of renewal.  Any references to completing Form I-765WS in the instructions should be removed. 

 

Page 1, When Should I Use Form I-821D? 

Applicants who initially received DACA from ICE are instructed to complete the entire form and provide documentation showing that they satisfied the guidelines at the time of their initial filing.  This policy is objectionable because individuals who were approved for DACA by ICE were granted DACA under the same policies and guidelines as those approved by USCIS.   For this reason, it is neither reasonable nor justified to establish separate evidentiary requirements for a subset of DACA grantees.  All DACA renewal applicants should be evaluated using consistent standards. 

Moreover, imposing this requirement is particularly burdensome for ICE grantees, because they were detained during the application process and are less likely to have copies of their initial applications.  Such a policy places an undue burden on applicants to retrieve documents from ICE – a process that may be complicated and time consuming and may delay applicants’ ability to apply for renewal. 

Recommendation:  The renewal process should not distinguish between those granted DACA by ICE and those granted by USCIS. 

 

Page 2, Who May File Form I-821D?

The text in this section indicates that USCIS intends to limit the renewal application period to the 120 days preceding the expiration of the current period of deferred action. As detailed below, we are concerned that a 120 day time frame to adjudicate renewal applications is insufficient without providing additional protections for applicants.  The current average processing time for I-821Ds is 6 months, and many DACA requests have been pending for much longer than that.    

Employed DACA recipients whose work authorization expires while their renewal request is being adjudicated will face termination or suspension.  This will harm DACA recipients, their families, and employers and undermine the very objective of DACA to provide protection and stability to these young deferred action grantees. For these reasons, the proposed renewal adjudication procedure is inadequate to protect DACA grantees from the risk of accumulating unlawful presence and lacking a valid EAD. 

Recommendation:  The renewal application period should be extended to 180 days to provide a more realistic timeframe for USCIS to adjudicate submissions in a timely fashion.  Further, to protect DACA applicants who may experience renewal adjudication delays, or may not be able to file renewal applications several months in advance of their current status expiration, USCIS should automatically extend deferred action and employment authorization upon receipt of a renewal application. 

The Form I-797C Notice of Action receipt should serve as notice of a 6 month temporary extension.  This policy would be consistent with USCIS policies relating to Temporary Protected Status (TPS) holders and Conditional Residents.  Specifically, when TPS re-registrants will not receive new EADs until after the expiration of their current EADs, USCIS has granted automatic 6 month extensions to prevent gaps in employment authorization.  In addition, conditional residents with Forms I-751 to remove conditions on residence pending have their status automatically extended for a year and may present their expired Form I-551 and Form I-707 as evidence of their status in the United States.     

Current USCIS guidelines provide that requestors who turn eighteen while their applications are pending will not accrue unlawful presence.  This policy should be extended to protect all renewal applicants from accruing unlawful presence while their requests are pending, regardless of the requestor’s age.  Further, DACA applicants face many challenges to completing requests within the filing window.  We urge USCIS to allow those unable to file within the 180 day period to also apply as renewal requestors.    

 

Page 9, What evidence should I submit to demonstrate my criminal history?  

Applicants are required to submit original official statements from arresting agencies or courts confirming that no charges were filed for any felony or misdemeanor arrests in the U.S. or a crime in any other country.   Applicants are also required to submit an original statement from the court indicating that no record exists of arrests or convictions that have been vacated, set aside, sealed, expunged, or otherwise removed from their criminal record.   These requirements are overly burdensome for applicants.  Many are likely to have difficulty obtaining statements of no record or no charges from courts or arresting agencies. 

Recommendation:  Applicants should not be required to submit statements from arresting agencies or courts confirming that no charges were filed or that no records exist.  However, if USCIS adopts this requirement, applicants should be given the opportunity to explain why the documents cannot be provided and their efforts to obtain the documents.  Most importantly, applicants’ inability to obtain these documents should not negatively impact the adjudication of their cases.  The instructions should be amended to read (new language in bold italics): 

12.c.  If you have ever had any arrest or conviction vacated, set aside, sealed, expunged, or otherwise removed from your record, submit: 

(1)   An original or court certified copy of the court order vacating, setting aside, sealing, expunging, or otherwise removing the arrest or conviction; or

(2)   An original statement from the court that no record exists of your arrest or conviction.

 If you are unable to provide such documentation or it is not available, you may provide an explanation, including a description of your efforts to obtain such evidence, in Part 9.  Additional Information.   

           

Page 10, Evidence for Renewal Requests  

Renewal applicants are given limited instructions on evidence needed for renewal requests.  USCIS should offer greater clarification on the evidence needed for renewal purposes. 

Recommendation:  The instructions should be amended as follows (new language in bold italics):

Evidence for Renewal Requests

1. If I have never been in removal proceedings and have not been arrested for, charged with, or convicted of a crime since receiving DACA, what evidence do I need to submit with my renewal application?

If you have not been arrested for, charged with, or convicted of a felony or misdemeanor in the U.S. or any crime outside the U.S. since you received DACA and have never been in removal proceedings, then you are not required to provide any supporting evidence. 

2. If you were arrested for, charged with, or convicted of a felony or misdemeanor in the U.S. or arrested for, charged with, or convicted of a crime in another country AFTER being granted DACA, what evidence should you provide?

 You must include a certified court disposition, charging document, verdict or judgment of conviction, sentencing record, etc., for each incident, unless the records involved incidents handled in juvenile court.  You do not need to re-submit evidence of any arrests, charges, or convictions for felonies or misdemeanors in the U.S. or crimes in other countries that you already submitted to USCIS prior to your DACA grant.  

3. What documents should you submit if you have been in exclusion, deportation, or removal proceedings since receiving DACA?

You must submit a copy of any document issued by the immigration judge or final decision of the Board of Immigration Appeals (BIA), if available.  If you have not been in exclusion, deportation, or removal proceedings, this question does not apply to you.  You do not need to re-submit evidence related to exclusion, deportation, or removal proceedings that you already submitted to USCIS prior to your DACA grant.   

 

Page 11, What is the filing fee?

A request for renewal of deferred action has the same filing fee as the initial request -- $465 for the Employment Authorization Document and the biometrics fee.  Since the renewal application requires much less documentation than an initial application, and adjudicators will spend less time reviewing each renewal application, the fee for the renewal request should be less than for the initial.

Recommendation:  We recommend only charging renewal applicants the $85 biometric services fee.  In other contexts, such as permanent residence, USCIS charges a lower fee for renewal than for an initial application.  The total cost of adjusting to lawful permanent resident status is $1070, while the total cost of renewing a green card is only $450.  In the alternative, we recommend that USCIS expand the criteria for fee exemption eligibility to include low-income individuals.  Applicants whose household income is below 150% of the federal poverty line should be eligible for a fee exemption.  Currently, approximately one third of DACA-eligible youth live in families with incomes below 100% of the federal poverty level (FPL), and two-thirds live in families with incomes below 200% of the federal poverty level.[1]

 

Page 13, Checklist

The checklists in the instructions include lists of questions for initial and renewal requests and for initial requests only.  These checklists are likely to be confusing for applicants.   It is difficult to decipher which checklist questions apply to initial or renewal applicants. 

Recommendation:  The instructions should include one checklist for initial applicants only and one checklist for renewal applicants only.  Specifically, the checklists should be amended as follows (new language in bold italics):

 

For Initial Requests Only

Did you submit Form I-765 along with the filing and biometric services fees ($465) required for the application for employment authorization and did you also submit a completed Form I-765WS? 

 

Did you answer all of the questions, except for those marked “For Renewal Requests Only”?

Did you provide an original, handwritten signature and date your request?

Did you submit evidence to show that you came to the United States while under 16 years of age and established residence at that time?

Did you submit evidence to prove identity, date of initial entry, and continuous residence from June 15, 2007 (or earlier) up to the present time?

Did you submit evidence that you are currently in school, have a GED certificate, have graduated or received a certificate of completion from high school, or are an honorably discharged veteran of the U.S. Armed Forces or U.S. Coast Guard?

Did you provide evidence showing that you were in an unlawful status as of June 15, 2012, or if you were previously in lawful status, that your lawful status expired prior to June 15, 2012?

If you were issued a final order of exclusion, deportation, or removal, did you include a copy of that final order (if available)?

If your exclusion, deportation, or removal proceedings were terminated by an immigration judge, did you include a copy of the immigration judge’s termination order (if available)?

If you have ever been arrested for, charged with, or convicted of a felony or misdemeanor in the United States or any crime in any country other than the United States, did you submit an original official or court certified document that shows your charges and final disposition for each incident?

 

For Renewal Requests Only

Did you submit Form I-765 along with the biometric services fee ($85) required for the application for renewal of the employment authorization?

Did you answer all of the questions, except for those marked “For Initial Requests Only”?

Did you provide an original, handwritten signature and date your request?            

If, since you were granted DACA, you were issued a final order of exclusion, deportation, or removal, did you include a copy of that final order (if available)?

If, since you were granted DACA, your exclusion, deportation, or removal proceedings were terminated by an immigration judge, did you include a copy of the immigration judge’s termination order (if available)?

If, since you were granted DACA, you have ever been arrested for, charged with, or convicted of a felony or misdemeanor in the United States or any crime in any country other than the United States, did you submit an original official or court certified document that shows your charges and final disposition for each incident?

 

Conclusion

We thank you for your consideration of these comments and look forward to continuing to work with the agency regarding this important program.  Please do not hesitate to contact CLINIC’s Director of Advocacy, Allison Posner, at 301-565-4831 or aposner@cliniclegal.org for additional information.

 

Sincerely,

Jeanne M. Atkinson, ESQ.

Executive Director

 


[1] Batalova, Jeanne, Randy Capps and Sandy Hooker. Deferred Action for Childhood Arrivals at the One-Year Mark. Migration Policy Institute. August 2013, available at http://www.migrationpolicy.org/pubs/CIRbrief-DACAatOneYear.pdf.

Circuit Court Split on Constitutionality of Local Anti-Immigrant Housing Ordinances (Aug 2013)

Circuit Court Split on Constitutionality of Local Anti-Immigrant Housing Ordinances (August 2013)                                                         

Underlying many anti-immigrant measures passed by states and cities in recent years is the policy goal of “enforcement by attrition” or “self-deportation.” The belief is that, by making daily existence for the unauthorized population as difficult as possible, they will decide to leave the U.S. of their own accord.  Examples of such strategies include expanding local enforcement of federal immigration laws, criminalizing unlawful presence and unauthorized work, and restricting the ability of undocumented immigrants to attend school, obtain driver’s licenses, engage in business transactions, rent housing, and otherwise participate in society. Such anti-immigrant strategies fly in the face of Catholic social teaching on the fundamental right of all humans to decent living conditions including faith, family life, food, education, employment, health care, and housing.  As Archbishop of Los Angeles and Chair of the United States Conference of Catholic Bishops’ Committee on Migration José Gómez wrote in Immigration and the Next America: Renewing the Soul of Our Nation

Nobody ever forfeits his humanity or his right to be treated with dignity.  No matter where he comes from or how he got here. No matter what kind of papers he has or doesn’t have.  Even if he has broken a law, he is still a person, and he still has rights and dignity.

Starting in 2006, we witnessed localities across the U.S. -- from Hazelton, Pennsylvania and Riverside, New Jersey to Valley Park, Missouri and Escondido, California -- passing ordinances banning the rental of property to undocumented residents. What became of these attempts to force hardworking immigrants and their families to leave the cities they call home? Many of these discriminatory housing ordinances were challenged in court and several were subsequently reversed.  This summer, three federal appeals courts have issued decisions in the legal challenges to restrictive rental policies in Fremont, Nebraska, Farmers Branch, Texas, and Hazelton, Pennsylvania.1  The outcomes were mixed.  The 5th and 3rd Circuit Courts of Appeals prevented the cities of Farmers Branch and Hazelton, respectively, from enforcing restrictive rental prohibitions.  However, the 8th Circuit permitted the Fremont housing ordinance to go into effect.  The three recent circuit court decisions are summarized below.  

1 In addition, last year the 11th Circuit found that Alabama’s state law criminalizing the harboring of an unlawfully present person by entering into a rental agreement with that person to be an untenable expansion of the federal harboring provision and, thus, preempted by federal law. United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012).

In light of the current circuit split resulting from divergent interpretations of federal law, the constitutionality of anti-immigrant housing regulations may be an issue that the U.S. Supreme Court would agree to address in the near future.  For a map of the eleven circuits in the U.S. Circuit Court of Appeals system, click here .  

 

8th Circuit Allows Nebraska City to Restrict Housing Based on Immigration Status

On June 28, a three-judge panel of the 8th Circuit Court of Appeals upheld  a 2010 ordinance requiring anyone wishing to rent housing in Fremont, Nebraska to first obtain a permit from the city after proving their lawful presence in the U.S.2  In 2012, a lower court had temporarily prevented the provision from going into effect after finding that denying housing permits to the undocumented is discriminatory and interferes with federal law.  The 8th Circuit disagreed and held that the rental provision is not preempted by federal law because it does not require local officials to determine whether an individual is removable from the U.S. but only mandates that city officials defer to the federal government’s determination of whether an undocumented renter is unlawfully present. Now that the 8th Circuit has reversed the lower court, the city of Fremont can begin enforcing the law on its residents.  It is not yet clear whether the Plaintiffs in the case will petition for a rehearing of the full 8th Circuit.        

2 Keller v. City of Fremont, 719 F.3d 931, (8th Cir. 2013).

3 Villas at Parkside Partners v. City of Farmers Branch, Texas, No. 10-10751, 2013 WL 3791664 (5th Cir. July 22, 2013).

In his dissenting opinion, 8th Circuit Judge Bright argued that the ordinance is unconstitutional because it conflicts with the federal government’s exclusive immigration authority to decide who may and may not reside in the U.S.  According to Judge Bright, the law “prevents undocumented persons from renting in Fremont, which is tantamount to preventing them from living in the city at all.”  He also pointed to the fact that all the other Circuit Courts that have ruled on this issue have found similar rental prohibitions to be in conflict with our federal system for removal of undocumented immigrants. 

 

5th Circuit Finds Texas Housing Ordinance Unconstitutional

Less than a month after the 8th Circuit upheld the Nebraska city ordinance, the 5th Circuit reached a different decision  about a nearly identical provision attempting to prevent the undocumented from renting housing in Farmers Branch, Texas.3  On July 22, an en banc panel of the Fifth Circuit Court of Appeals struck down an immigration ordinance that would require prospective tenants to acquire a residential occupancy license after the city verified their lawful presence in the U.S.  In addition to prohibiting landlords from renting to unauthorized immigrants, the ordinance would impose criminal penalties on both landlords and tenants.  The court relied on the U.S. Supreme Court's 2012 decision invalidating key provisions of Arizona’s notorious SB 1070 to hold that the ordinance conflicted with federal immigration law in violation of the Supremacy Clause of the Constitution. Specifically, the court found that the ordinance conflicts with the federal government’s authority to arrest and detain people for possible unlawful presence as well as with the federal anti-harboring law, 8 USC 1324(a)(1)(A)(iii), which makes it a felony to harbor, shield, or conceal an undocumented immigrant.  According to two judges who concurred in the judgment, the “purpose and effect” of the ordinance was “the exclusion of Latinos from the city of Farmers Branch.”   

 

Pennsylvania Housing Ordinance Found Unconstitutional by 3rd Circuit

On July 26, the 3rd Circuit Court confirmed that Hazelton, Pennsylvania’s anti-immigrant housing ordinances were unconstitutional and upheld  the lower court’s rulings that had blocked the discriminatory laws from going into effect.4  One ordinance made legal immigration status a precondition to being able to enter into a lease and criminalized “harboring” an unauthorized immigrant by leasing or renting a dwelling unit to such an individual.  A second ordinance required prospective tenants to obtain an occupancy permit which required proof of citizenship or legal residency.  The court found that, operating together, the two ordinances attempted to regulate residence based solely on immigration status and effectively prohibited unauthorized immigrants from living in any rental housing in the city of Hazelton.  According to the 3rd Circuit, these provisions are preempted by federal law both because the field of immigration is completely occupied by the federal government and because the requirements they impose upon immigrants conflict with federal law.  It is worth noting that, in addition to finding the housing provisions of the ordinances unconstitutional, the court also found that the provision attempting to regulate the employment of unauthorized immigrants was pre-empted by federal immigration law.  

4 Lozano v. City of Hazleton, No. 07-3531, 2013 WL 3855549 (3d. Cir. July 26, 2013).

5 Lozano v. City of Hazleton, 620 F.3d 170, 220–21 (3d Cir. 2010).  

 

In conclusion, it is noteworthy that no new municipal ordinances preventing unauthorized immigrants from renting housing have been enacted since 2010.  If the U.S. Supreme Court does decide to resolve the current split between the circuits, we can be hopeful the high court will adopt the sound reasoning articulated by the 3rd and 5th Circuits in finding such ordinances to be unconstitutional.  In addition to preempting federal immigration law, such housing ordinances are clearly bad public policy. They have cost cities across the country substantial time and resources to defend against lawsuits. They divide communities and increase discrimination against individuals based on their perceived immigration status. As the 3rd Circuit wrote: “It is difficult to conceive of a more effective method of ensuring that persons do not enter or remain in a locality than by precluding their ability to live in it.”5 Archbishop Gómez reminds us that unauthorized presence is not a crime:  

The fact is that most “illegals” are the people next door.  They go to work every day. Their kids go to school with our kids.  We sit next to them at church on Sunday. Most have been living in our country for five years or more.  Two-thirds have been here for a least a decade. 

 Our Catholic commitment to care for the stranger includes the basic need for shelter and extends to all human beings regardless of their immigration status. 

 

This document was prepared in August 2013 by CLINIC’s State & Local Advocacy Attorney Jen Riddle. This document is provided for informational purposes only and is not intended as legal advice. For questions, please contact Jen Riddle at jriddle@cliniclegal.org or (301) 565-4807.

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Preparing for CLINIC/JFI Advocacy Day

Advocacy Day is Tuesday, May 21, 2013.

Get ready for your day on Capitol Hill!  Kevin Appleby, Director of USCCB's Office of Migration Policy and Public Affairs and Allison Posner, CLINIC's Director of Advocacy will speak about the Church's position on immigration reform and how to frame your "asks" when speaking with your representatives.  We will also review the agenda for Advocacy Day and provide practical tips about getting around the Hill and what to expect from the day.   

Held on May 7, 2013.

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CLINIC Comments on Age-out Protections for U Visa Derivatives

On January 10, 2013, CLINIC shared comments on USCIS’s policy memo, “Age-Out Protection for Derivative U Nonimmigrant Status Holders: Pending Petitions, Initial Approvals, and Extension of Status.”  CLINIC welcomes the issuance of the guidance, as this policy will provide much needed security for the immigrant crime victims and their families that CLINIC members serve.  We are encouraged by USCIS’ statement that the preservation of family unity is a benefit to law enforcement.  The policy provides important protections for U visa derivatives who age out after the approval of the principal’s application, however, there are still important issues that remain unaddressed.  To read the full comments, click here

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CLINIC Comments on Employment Eligibility for VAWA Beneficiaries

On January 10, 2013, CLINIC shared comments with USCIS on its guidance entitled “Eligibility for Employment Authorization upon Approval of a Violence Against Women Act (VAWA) Self- Petition; and, Eligibility for Employment Authorization for Battered Spouses of Certain Nonimmigrants.”  CLINIC’s comments addressed concerns regarding the employment authorization process for approved VAWA beneficiaries, as well as the eligibility for employment authorization for battered spouses of A, E (iii), G, and H nonimmigrants.  To read the full comments, click here.

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CLINIC Comments on Employment Eligibility for VAWA Beneficiaries

On January 10, 2013, CLINIC shared comments with USCIS on its guidance entitled “Eligibility for Employment Authorization upon Approval of a Violence Against Women Act (VAWA) Self- Petition; and, Eligibility for Employment Authorization for Battered Spouses of Certain Nonimmigrants.”  CLINIC’s comments addressed concerns regarding the employment authorization process for approved VAWA beneficiaries, as well as the eligibility for employment authorization for battered spouses of A, E (iii), G, and H nonimmigrants.

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CLINIC Comments on Age-out Protections for U Visa Derivatives

On January 10, 2013, CLINIC shared comments on USCIS’s policy memo, “Age-Out Protection for Derivative U Nonimmigrant Status Holders: Pending Petitions, Initial Approvals, and Extension of Status.”  CLINIC welcomes the issuance of the guidance, as this policy will provide much needed security for the immigrant crime victims and their families that CLINIC members serve.  We are encouraged by USCIS’ statement that the preservation of family unity is a benefit to law enforcement.  The policy provides important protections for U visa derivatives who age out after the approval of the principal’s application, however, there are still important issues that remain unaddressed. 

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Comments on the Department of Health and Human Services' DACA/Lawfully Present Amendment

On October 23, 2012, CLINIC and the United States Conference of Catholic Bishops submitted comments to the Department of Health and Human Services in response to the Department’s amendment of the definition of the term “lawfully present.”  The amendment will prevent those granted deferred action under the Deferred Action for Childhood Arrivals (DACA) program from accessing affordable health insurance coverage options.  Excluding DACA recipients from this program is inequitable and undercuts the spirit of the Administration’s DACA policy.

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Comments on the Department of Health and Human Services' DACA/Lawfully Present Amendment

On October 23, 2012, CLINIC and the United States Conference of Catholic Bishops submitted comments to the Department of Health and Human Services in response to the Department’s amendment of the definition of the term “lawfully present.”  The amendment will prevent those granted deferred action under the Deferred Action for Childhood Arrivals (DACA) program from accessing affordable health insurance coverage options.  Excluding DACA recipients from this program is inequitable and undercuts the spirit of the Administration’s DACA policy.

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Support for Integration Grant Funding

CLINIC and other organizations that help permanent residents naturalize and that promote the integration of newcomers sent the attached letter to Representative Nancy Pelosi, urging her to support appropriations funding for the U.S. Citizenship and Integration Grants Program.  Since the program began in October 2009, USCIS’s Program has helped more than 38,000 permanent residents in 30 states and the District of Columbia prepare for citizenship. Twenty-six percent of the 2012 grantees are CLINIC affiliates. 

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Support for the Help Separated Families Act of 2012

The United States Conference of Catholic Bishops (USCCB) signed onto this letter July 23, 2012 urging members of Congress to support the Help Separated Families Act, legislation introduced by Congresswoman Lucille Roybal-Allard (D-CA-34). The bill aims to improve the likelihood that children placed in the child welfare system as a result of immigration enforcement actions against their parents can ultimately reunify with their parents.

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Comments on Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives

On January 9, 2012, U.S. Citizenship and Immigration Services (USCIS) announced its intention to change its current process for filing and adjudicating certain applications for waivers of inadmissibility filed in connection with an immediate relative immigrant petition.  On April 2, 2012, the agency issued proposed regulations to allow certain applicants to apply for and receive a provisional unlawful presence waiver prior to departing the U.S. for the Immigrant Visa (IV) interview.   Click here to see CLINIC’s comments on the proposal.

 

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Comments Regarding Proposed Changes to Regulations Governing Recognition and Accreditation

The Catholic Legal Immigration Network, Inc. (CLINIC) submitted these comments on March 30, 2012 in response to the Executive Office for Immigration Review’s (EOIR) proposal to amend the regulations governing the recognition of organizations and accreditation of representatives who appear before EOIR.

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Advocates Support Expansion of the Executive Office for Immigration Review’s (EOIR) Legal Orientation Program (LOP)

The United States Conference of Catholic Bishops, along with other faith-based, human rights, immigrant advocacy, and legal service organizations expressed thir support for expanding the Legal Orientation Program (LOP), a program within the Department of Justice’s (DOJ) Executive Office for Immigration Review (EOIR). Since its launch in 2003, LOP has generated bipartisan support because of its proven track record in reducing court processing times and making the detention and immigration court process more efficient.

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Comments on Public Meetings: Proposed Changes to Regulations Governing Recognition and Accreditation [EOIR Docket No. 176]

The Catholic Legal Immigration Network, Inc. (CLINIC) submits these comments in response to the request for public comment by the Executive Office for Immigration Review (EOIR) in advance of its two public meetings on the agency's proposal to amend the regulations governing the recognition of organizations and accreditation of representatives who appear before EOIR.

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Open Letter in Response to the Closing of the Berks County Family Shelter Care Center and Solicitation of New Family Detention Beds

"We call on the administration to prioritize release of immigrant families in all cases. We
urge the administration to assign social workers to manage familiesʼ cases rather than
placing them in detention. For families without housing, the administration should
partner with non-profit shelter or child welfare organizations experienced in supporting
asylum-seeking and immigrant families to resolve any issues preventing the direct
release of families. Social workers with proven track records providing family and child
welfare services offer the only appropriate expertise for supporting families in civil
immigration proceedings."

Click here to read more.

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Comments on Special Immigrant Juvenile Regulations

The undersigned members of the ICLN and other interested parties are writing in response to the regulations proposed by U.S. Citizenship and Immigration Services (“USCIS”) on September 6,
2011, regarding Special Immigrant Juvenile Petitions. While we applaud the proposed
regulations’ provisions reflecting the statutory language updated by the William Wilberforce
Trafficking Victims Protection Reauthorization Act of 2008, we have significant concerns about
much of the proposed regulatory language, as well as the commentary accompanying the
proposed regulations. We urge you to amend the proposed regulations in the following manner.

To read the full letter, click here.

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Comments on Policy on Unauthorized Practice of Law

The Catholic Legal Immigration Network, Inc. (CLINIC) submits these comments in response to the request for public comments by the U.S. Citizenship and Immigration Services (USCIS) on Policy Memorandum, PM-602-0039, The Role of USCIS District Directors in the Board of Immigration Appeals Recognition and Accreditation Process; Revisions to the Adjudicator’s Field Manual, New Chapter 12.6, AFM Update AD 11-34. Click here (pdf) for the full letter. 

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CLINIC Letter to USCIS and DHS - Further Relief for Victims of Haiti Earthquake

The following letter was sent to U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas and Department of Homeland Security Secretary Janet Napolitano on April 15, 2010.


On behalf of the Catholic Legal Immigration Network, Inc. (CLINIC) and the undersigned agencies, we are writing to urge you to take additional steps to help the victims of the January 12, 2010 earthquake in Haiti. We were heartened to see how swiftly the announcements came out regarding Temporary Protected Status (TPS) and humanitarian parole for certain orphans, but in the two months following the earthquake we have seen many others who have not been able to avail themselves of any immigration relief because none is available to them, or because the cost is prohibitive to them.

Expedited consular processing and humanitarian parole should be provided in order to unify families

Our network reports that many Haitians who are now U.S. citizens residing in the United States have immediate relative petitions pending for their spouses and minor children in Haiti. These petitions should be expedited and immigrant visas be granted immediately.

In cases where U.S. citizens or permanent residents have approved petitions and current priority dates for their families waiting in Haiti, the documentation should be expedited to bring these family members to the United States as quickly as possible.

Where petitions have been approved and priority dates are not yet current, especially for the minor children and spouses of permanent residents, beneficiaries should be granted humanitarian parole to wait in the United States until they are able to adjust their status.

Individuals who were granted visitor status must be able to gain status that will permit them to work and get social services

Haitian parents of U.S. citizen children must be permitted to remain with their minor children in the United States in a long-term capacity. Many of these individuals have been granted visitor’s status to remain in the United States for up to six months. Parents must not be forced to leave their children when their status expires. They should be permitted to remain and to avail themselves and their families of necessary social services to mitigate the effects of the tragedy they have endured. This is not an option available to those admitted in visitor’s status and is causing families to live in extreme poverty, even here in the U.S.

This real case example is illustrative of the issues facing many families that approach our affiliates every day:

A mother of three, widowed in the earthquake, came to the United States with her children via military transport during the U.S citizen repatriation process. The youngest child is a U.S. citizen. The mother and two oldest children were admitted in B-2 visitor status, for a six month period of authorized stay. They are staying with friends; altogether there are 13 people living in the household. There is not enough food or clothing for all. The friend and head of the household is impatient because she is also a single mother with a handicapped child. She barely makes enough money to support her own family. She has asked her friends to leave, but they have nowhere to go. With B-2 status the mother cannot work and the family is ineligible for benefits. Without the generosity of the host family, this mother and her children would be homeless.

In addition, USCIS should grant TPS to derivative family members of eligible applicants. This would guarantee family unity, particularly for families of mixed nationality. On the day of the earthquake, many such families of mixed nationality (ie. one Haitian parent and one Dominican parent with their Haitian children) were in the United States in lawful status. The current TPS requirements would force the non-Haitian parent to make the difficult decision to either leave their families behind in the United States or remain here in violation of their status. Allowing spouses or children of TPS applicants to gain derivative TPS would keep families whole and allow parents to work in order to care for their children.

Fee waiver applications should be streamlined and the required evidence reconsidered

To date, the number of TPS applications has been lower than expected, and the number of fee waiver applications has been even lower. Our affiliates have seen many potential applicants deterred from applying for relief because of the prohibitively high fees and the very complicated fee waiver process. While we continue our work to educate potential applicants on how to properly prepare and document their applications, we also urge you to make the fee waiver application simpler to properly complete and sufficiently document.

CLINIC and the undersigned organizations urge that the Department of Homeland Security consider these additional forms of relief for individuals and families affected by the earthquake in Haiti, so that the needs of the greatest number of individuals may be met and that families may remain together throughout this difficult time.

We welcome the opportunity to further discuss these important issues. Please contact me at 202-756-5500 or modom@cliniclegal.org if you have any questions or concerns about our recommendations or to set up a time to discuss them. You may also contact Allison Posner, CLINIC’s Director of Advocacy at 202-635-2567 or aposner@cliniclegal.org.

Sincerely,

Maria M. Odom
Executive Director

 

 

Signatories

Catholic Agency for Migration and Refugee Services, Garden City, Kansas

Catholic Charities Community Services of the Archdiocese of New York

Catholic Charities Legal Services of Miami

Catholic Charities of Central Florida

Catholic Charities of Dallas, Inc.

Catholic Charities of East Tennessee

Catholic Charities of Houston, TX, St. Francis Cabrini Center for Immigrant Legal Assistance

Catholic Charities of Jacksonville, FL

Catholic Charities of Pensacola, FL

Catholic Charities of the Archdiocese of Boston

Catholic Charities of the Archdiocese of Milwaukee, Inc.

Catholic Charities of the Diocese of Allentown, PA

Catholic Charities of the Diocese of Baton Rouge, Louisiana

Catholic Charities of the Diocese of Jackson, Mississippi

Catholic Charities of the East Bay, Oakland, California

Catholic Charities of West Palm Beach, FL

Catholic Community Services of Western Washington, Family Immigration Services

Catholic Diocese of Saginaw

Catholic Immigration Law Project, St. Louis, Missouri

Catholic Social Services of the Archdiocese of Philadelphia

Diocese of Little Rock

International House, Charlotte, North Carolina

Migration and Refugee Services, The Roman Catholic Diocese of Lafayette, Louisiana

Sister Juana Mendez, Sister of Charity of Cincinnati, Diocese of Covington