Our firm represents clients within the United States and Immigration Services (USCIS) and Customs Enforcement (ICE) in both criminal and non-criminal matters.
The Massachusetts immigration attorneys at our law firm have extensive experience in handling immigration matters for individuals and families. We have been highly successful in obtaining Lawful Permanent resident status for our clients and terminating removal proceedings. In fact, we have represented clients at the Board of Immigration Appeals (BIA) at Washington D.C.
Immigration law in the United States has recently undergone many important changes and revisions. Those changes affect employers, visitors, students, and others seeking to work or travel or reside within to United States. Immigration law can be complex and overwhelming and it is vital to clearly understand which agencies are involved with which types of immigration matters.
“We want to express our thanks for a job well done. The Martins family is very grateful, because you have changed our lives for the better, and we will continue to be good people in the United States where thanks to your abilities we will be able to remain.” – an immigration client
“My wife and I used Kevin to take care of our US Naturalization application. He was incredibly accessible, knowledgeable, and courteous. We were doing this by ourselves, but by using Kevin, we were able to trim months, if not a year or more off of the process. We were extremely pleased in every regard.” – Michael and Aytul Farquharson
“I have worked alongside Kevin Leeper and, therefore, have personal knowledge of his skills. His thorough knowledge of Immigration law allows him to be of great comfort and help to those seeking U.S. citizenship. A much needed talent in today’s complex and changing world.” – Judge Gerald Alch (Ret.)
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DACA (DEFERRED ACTION FOR CHILDHOOD ARRIVALS)
ON JUNE 15, 2012, PRESIDENT BARACK OBAMA ANNOUNCED THAT THE U.S. DEPARTMENT OF HOMELAND SECURITY (DHS) WOULD NOT DEPORT CERTAIN DREAM ACT–ELIGIBLE UNDOCUMENTED YOUTH. UNDER A DIRECTIVE FROM THE SECRETARY OF DHS, THESE YOUTH WILL BE GIVEN A TYPE OF TEMPORARY PERMISSION TO STAY IN THE U.S. CALLED “DEFERRED ACTION.” DEFERRED ACTION WILL BE VALID FOR TWO YEARS AND MAY BE RENEWED AT THE END OF THE TWO YEARS. INDIVIDUALS WHO RECEIVE DEFERRED ACTION MAY APPLY FOR AND MAY OBTAIN EMPLOYMENT AUTHORIZATION.
Deferred action is a discretionary determination on the part of DHS. It is an act of prosecutorial discretion. The new policy will allow certain foreign-born individuals who entered the United States as children to apply for 2-year work permits, and possibly for extensions. It is not a path to a green card or to U.S. citizenship.
DO YOU QUALIFY FOR THE DEFERRED ACTION PROGRAM?
Hundreds of thousands of people who entered the United States as children but without documentation can apply for Deferred Action — beginning Wednesday, August 15, 2012 — to remain in and work in the country without fear of deportation for at least two years. Learn if you qualify for the Deferred Action program.
DEFERRED ACTION APPLICATION FORMS
You are required to submit form I-821D, Consideration of Deferred Action for Childhood Arrivals. If you are applying for employment authorization, you must also submit forms I-765 and I-765WS. In order to receive employment authorization, you must demonstrate “an economic necessity for employment”. Contact our immigration attorneys to begin your application process by completing the appropriate Deferred Action Forms.
THERE IS NO CHANCE TO REAPPLY.
It is very important to consult with an experienced immigration attorney. The deferred-action program allows just one chance to get the application right.
The six-page application requires undocumented immigrants who want to stay and work in the U.S. for two years without fear of deportation to submit multiple documents proving they meet the program’s long list of requirements, among them that they are under age 31 and came to this country before turning 16. It is very important that the proper forms be submitted and filled out completely.
There is no chance to reapply.
START YOUR DEFERRED ACTION APPLICATION PROCESS NOW
Speak with Attorney Kevin Leeper to start your Deferred Action application process. As always, you will receive a free initial consultation.
President Obama’s Executive Order
DEFERRED ACTION FOR PARENTAL ACCOUNTABILITY DAPA
ON NOVEMBER 20TH, 2014 PRESIDENT OBAMA ANNOUNCED AN EXECUTIVE ACTION CHANGING IMMIGRATION IN THE US IN SUCH A WAY TO POTENTIALLY SHIELD 5 MILLION PEOPLE FROM DEPORTATION. AN EXECUTIVE ACTION DIFFERS FROM AN EXECUTIVE ORDER IN THAT IT IS NOT LEGALLY BINDING.THE CHANGE IN POLICY WILL ADD AN ESTIMATED 300,000 INDIVIDUALS TO THE POPULATION OF DREAMERS – THOSE WHO QUALIFY UNDER THE DEFERRED ACTION FOR CHILDHOOD ARRIVALS. THESE ARE THE CHILDREN OF ILLEGAL IMMIGRANTS WHO WERE BROUGHT TO THE US BY THEIR PARENTS. THE PRESIDENT’S ACT EXTENDS PROTECTION TO THOSE WHO ARRIVED AS MINORS BEFORE JANUARY 1, 2010 (THE CUTOFF WAS PREVIOUSLY JUNE 15TH, 2007). AGE LIMITS WILL ALSO BE ELIMINATED. PARENTS WHO HAVE LIVED IN THE US FOR AT LEAST 5 YEARS AND WHO ARE PARENTS OF LAWFUL PERMANENT RESIDENTS OR US CITIZENS BECAME ELIGIBLE FOR DEFERRED ACTION AND A 3- YEAR WORK PERMIT. THIS AFFECTS ABOUT 4 MILLION ILLEGAL IMMIGRANTS. THE PRESIDENT’S ACTION DOES NOT APPLY TO THE PARENTS OF CHILDREN WHO RECEIVED WORK PERMITS UNDER THE DACA PROGRAM. APPLICATIONS FOR QUALIFIED IMMIGRANTS WILL BE AVAILABLE IN EARLY 2015. APPLICANTS MUST PASS A BACKGROUND CHECK AND PAY A FEE. ALTHOUGH THEY CAN APPLY FOR A SOCIAL SECURITY CARD, THEY WILL NOT BE ENTITLED TO BENEFITS. IN FACT, ONLY AN ACT OF CONGRESS CAN CHANGE THE LAW ON BENEFITS OR GRANT CITIZENSHIP. BUSINESS GROUPS EXPRESSED DISAPPOINTMENT IN THAT THE ACT DOES NOT EXPAND THE NUMBER OF VISAS AVAILABLE TO HIGH AND LOW SKILLED TEMPORARY WORKERS. HOWEVER, A PROGRAM WHICH PERMITS HIGHLY-SKILLED STUDENTS TO WORK WHILE APPLYING FOR A VISA WAS EXTENDED. IN ADDITION, CHANGING JOBS WILL BE EASIER FOR STUDENTS WHO ALREADY HAVE WORK VISAS. THE PRESIDENT INTENDS TO FOCUS AGENCY RESOURCES ON DEPORTATION OF ILLEGAL IMMIGRANTS WHO THREATEN PUBLIC SAFETY AND NATIONAL SECURITY. THIS INCLUDES FELONS, GANG MEMBERS, THOSE GUILTY OF DOMESTIC VIOLENCE OR DRUG TRAFFICKING AND OFFENDERS WITH AT LEAST 3 MISDEMEANORS. ENFORCEMENT ACTIONS WILL ALSO TARGET ILLEGAL IMMIGRANTS ARRIVING AFTER JANUARY 1, 2014. BESIDES FOCUSED DEPORTATION, THE PRESIDENT INTENDS TO CONCENTRATE ON PROTECTION AT THE BORDER. THE ACT ALSO ENDS THE SECURE COMMUNITIES PROGRAM WHICH DETAINED UNDOCUMENTED IMMIGRANTS WHO CAME TO THE ATTENTION OF LOCAL LAW ENFORCEMENT. IT IS REPLACED WITH THE PRIORITY ENFORCEMENT PROGRAM, WHICH WILL ONLY DETAIN THOSE CONVICTED OF A CRIME. BY MAKING TARGETED DEPORTATION AND BORDER SECURITY A PRIORITY, THE PRESIDENT’S ACTION ALSO BROUGHT SOME RELIEF TO THE 6 MILLION ILLEGAL IMMIGRANTS LIVING IN THE US WHO DO NOT QUALITY FOR PROTECTION.
DAPA Frequently Asked Questions Everything You Wanted to Know About President Obama’s Executive Action
Q. Are there any restrictions in marriage dates for parents with a stepchild? Let’s say a couple has a one year relationship and decides to get married now, after the immigration provision was published, is there any negative issue about getting married (in a real relationship) and then applying when the application period begins?
A. To qualify for DAPA, the parent/child relationship must have been in existence on November 20, 2014. If an individual marries after November 20, 2014 and has a stepchild as a result of that marriage, that stepchild cannot be the basis of DAPA eligibility.
Q. Will stepparents be eligible (as they are under family petitions) to apply based on a relationship with citizen/resident stepchild?
A. Unknown. USCIS has not stated how the term parent/child relationship will be defined for DAPA. The immigration law definition of child at INA Sec. 101(b) however, does include stepchildren, as long as the marriage creating the relationship took place by the time the child turns 18. If DHS applies this definition to DAPA applicants, a DAPA applicant will qualify based on having a U.S. citizen (USC) or Lawful Permanent Resident (LPR) stepchild as long as (a) that relationship existed by November 20, 2014, and (b) the marriage creating the parent/stepchild relationship took place before the stepson or stepdaughter was age 18.
Q. Is there a minimum or maximum age for the USC or LPR child of a potential DAPA applicant?
A. The 2014 Deferred Action Memo just states that a DAPA applicant must show that she or he was the parent of a USC or LPR son or daughter as of November 20, 2014. There is no minimum or maximum age with respect to the child. Presumably, an individual will be eligible for DAPA based on a USC child born on or before November 20, 2014, assuming she or he meets the other DAPA eligibility requirements.
Q. What if the daughter/son is married? Are parents still eligible for DAPA?
Q. Can a person be too old or too young to apply for DAPA?
A. The 2014 Deferred Action Memo does not include any minimum or maximum age limits for DAPA applicants.
Q. Will the parents of a USC child who has just died be eligible?
A. Unknown. The 2014 Deferred Action Memo does not speak to this issue. In a November 25, 2014 discussion on Univision, White House Domestic Policy Council Director, Cecilia Muñoz, indicated that the parents of deceased children would not qualify for the program.
Q. What about parents who have very little to do with their citizen child?
A. Unknown. The 2014 Deferred Action Memo merely requires a parent/child relationship. However, because DAPA is discretionary, it is possible that a failure to care for the USC or LPR child will be taken into consideration in deciding the application.
Q. Does DAPA apply semi retroactively? In other words, if a child becomes a resident after November 20, 2014, but before the executive action becomes implemented, can the parents qualify for DAPA?
A. Unknown. We will advocate with USCIS about the benefits of including parents of children who become LPRs after November 20, 2014.
Q. What about the situation of a father who entered EWI, but has a pending I130 by father’s U.S. citizen mother that is still pending. Yet Father has three minor children, does he qualify for DAPA?
A. Yes, assuming he meets all of the criteria. A pending I130 has no impact on eligibility for DAPA.
Q. Do we know if parents of LPR sons/daughters, kids who achieved their residency based on SIJ status, would qualify through these kids?
A. Unknown. A person who became an LPR as a special immigrant juvenile (SIJ) may not petition for his or her natural or prior adoptive parents, even if parental rights were not terminated. DHS has not indicated whether this same rule will extend to DAPA to prevent parents of children with LPR status based on SIJ from qualifying for the DAPA program.
Q. Would DAPA be available to the parent of a USC child, even if the parent is a Visa Waiver Program (VWP) overstay?
A. DAPA applicants must be unlawfully in the U.S. as of November 20, 2014, and this would include those who have overstayed authorized stays, as well as those who entered without inspection and have no status. DAPA applicants also must not fallwithin the new DHS Enforcement Priorities Memo, which includes a category relating to individuals who have “significantly abused the visa or visa waiver programs.” By all accounts, this phrase is entirely new to immigration law and policy. While we will have to wait for additional guidance from DHS on this issue, we do not expect mere overstays to be considered ineligible for DAPA.
Q. Should we expect the DAPA form to ask about whether applicants have paid taxes?
A. Although President Obama spoke about paying taxes when he described the DAPA program in his November 20, 2014 announcement, the 2014 Deferred Action Memo describing requirements for DAPA does not list payment of taxes as an eligibility factor. However, DAPA is discretionary and the failure to pay taxes may be viewed as a negative factor.
Q. Will a prior history of immigration fraud affect eligibility?
A. In all likelihood, this will depend on the extent of the fraud. We know that a person is ineligible for DAPA if he or she is described under the DHS Enforcement Priorities Memo. A person who has “significantly abused the visa or visa waiver programs” falls under Priority 2 of the DHS Enforcement Priorities Memo. The phrase “significantly abused the visa or visa waiver program” is a new phrase in immigration law and we do not know what it means. In addition, remember that DAPA is a discretionary form of relief and in certain circumstances immigration fraud is highly likely going to be viewed as a serious negative factor. Also, be aware that immigration fraud may be the basis for issuing a Notice To Appear. USCIS’s NTA policy specifically identifies “fraud cases with statement of finding substantiating fraud” as a category for issuing a NTA. Be sure to review an applicant’s Afile closely to determine if there has been a finding of fraud by DHS or INS.
Working under a false name
Q. How to advise someone who is using a false name regarding proof of eligibility?
A. USCIS has not issued information about what evidence it will accept to demonstrate eligibility for DAPA. Be sure to check the USCIS website, as this information is likely to be forthcoming. Also, applicants should be aware that it is best not to submit documents that use false names or social security numbers where it can be avoided. There are many other ways to document their eligibility, beyond submitting documents that would show they have used a false name (which typically happens on employment documents). This includes: medical records, their child’s school records, utility bills, correspondence, etc.
Application and Fees
Q. Any idea what the filing fees will be for DAPA and what would be a reasonable feefor an attorney to charge?
A. The fee for DAPA will be $465. This is specified in the 2014 Deferred Action Memo. Moreover, the memo says that there will be no fee waivers and narrow fee exemptions, like DACA. We cannot advise you as to what fees to charge in private practice.
Q. When will we know when the DAPA program will start? I see that for DACA expansion, the application period will begin approximately 90 days after the announcement.
A. The USCIS application period for the DAPA program is expected to begin within six months of the announcement—or, by May 19, 2015. Meanwhile, ICE and CBP are instructed to immediately begin identifying—and exercising discretion on behalf of—individuals who meet the criteria for DAPA or expanded DACA.
Continuous Residence Since January 1, 2010.
Q. How is continuous residence defined? Can an applicant have left the United States for a short period, or must the residency since 01/01/10 been uninterrupted?
A. Residency need not have been uninterrupted since January 1, 2010; however it is unclear precisely how DHS will define continuous residence. We know that the 2014 Deferred Action Memo requires continuous “residence” not uninterrupted physical presence. Immigration law distinguishes between residence and presence. Wherever a person is required to establish continuous residence for purposes of obtaining a benefit, departures are permissible provided they do not interrupt residence under the laws or policies of the benefit or program at issue. In DACA, a departure does not interrupt continuous residence if it is “brief, causal, and innocent.” We will have to see if similar guidance is issued with respect to the DAPA continuous residence requirement. A glossary provided on the USCIS Executive Action on Immigration website suggests DHS may adopt the continuous residence standard used in the naturalization context, but we don’t know this for sure, so stay tuned for guidance.
Q. Would DAPA be available to the parent of a USC child, where the parent entered EWI but later departed and reentered again as EWI?
A. DAPA applicants must show continuous residence in the U.S. since January 1, 2010. The unlawful presence and permanent bar inadmissibility grounds are inapplicable to DAPA eligibility. But if the parent’s absence was after January 1, 2010, you will need to assess whether the absence disrupted continuous residence. If the most recent EWI arrival of the parent was on or after January 1, 2014, the individual could be considered a priority under the DHS Enforcement Priorities Memo, and therefore ineligible for DAPA.
Q. We have a client who arrived with her young son on a fiancée petition this summer. Upon arrival, the fiancé stopped the relationship. The fiancée is now here, with her young son, and there is no way she can fulfill her fiancée petition. Mom has an adult USC son living here. Is mom eligible for DAPA, and what relief, if any, is the young soneligible for?
A. It sounds like this fiancée will not be able to meet the DAPA eligibility requirement of showing that she has resided in the U.S. continuously since January 1, 2010. Her fiancée status ends 90 days after entry and she will then start accumulating unlawful presence. If she departs before accruing more than 180 days of unlawful presence, she can avoid triggering the three year unlawful presence bar when she departs. While her adult U.S. citizen son can petition for her and she can immigrate through that petition at a U.S. Consulate abroad, that won’t include her young son. In addition, if she triggers the three or ten year bar, she cannot qualify for a waiver of inadmissibility based on hardship to her USC son— the statute specifies that only hardship towards spouses and parents can be considered.
Q. I have a client who overstayed his tourist visa and lived in the U.S. from 2000 to 2011. He has a son who was born in the U.S. in 2006. In 2011 he and his child moved to Costa Rica while his fiancée and mother of the child remained in U.S. They didn’t marry yet because faith belief differences but they still are in a relationship. Last year, he applied for a tourist visa in Costa Rica and without any question the U.S. Embassy granted him a tourist visa for 10 years. During his time abroad they paid joint taxes and had joint bank accounts. He returned to the U.S. with a tourist visa in March 2014 and his permit stay expired last October. His son is in the U.S., too. This person is a community leader, he always contributes to our community volunteering his time. Can he apply and ask for a waiver documenting his contributions to our community?
A. Unfortunately, this person will not be eligible for DAPA. He will not be able to show continuous residence in the U.S. since January 1, 2010. There is no waiver for this eligibility requirement.
Q. I want to know what criminal convictions/charges will preclude applicants from the new program, and the difference between DACA and DAPA in terms of criminal convictions.
A. We recommend you carefully review the DHS Enforcement Priorities Memo. The DAPA crime bars are listed in priorities 1 and 2 of the DHS Enforcement Priorities Memo. Remember that there are bars to DAPA (and DACA) that do not require a criminal conviction. For example, a person is barred from DAPA if he or she is suspected of having “engaged in…terrorism or espionage” or is deemed to have “significantly abused the visa or visa waiver program.” The criminal bars to DAPA include: felonies, significant misdemeanors and three or more nonsignificant misdemeanors. A person is also barred from DAPA if he or she has been convicted of an aggravated felony or an offense for which an element is active participation in a criminal street gang [as defined in 18 USC § 521(a)]. At this point USCIS has not clarified whether expunged convictions will be treated as they are in the DACA context (i.e. not automatic bars to demonstrating eligibility for the program).
Q. I note that the new PD memo states that it will come into force on 1/5/2015. Giventhe new treatment for DUIs, I am concerned about DUI convicted clients’ PD requests – would it make a difference to send them before 1/5/2015 in practice, or is it now too late?
A. The new administrative relief program does not create any new policy for DUIs. For both DAPA and DACA, a DUI is a “significant misdemeanor,” and therefore a disqualifying offense.
Q. What about equities for historical or explainable misdemeanors. For example, a 40 year old who got one DUI when 19, or a kid who got a DUI a week after his sister was abused by his dad and has been clean since? What if you dismiss/expunge a DUI conviction? Still not eligible?
A. A DUI is a significant misdemeanor under the DHS Enforcement Priorities Memo, and therefore prevents eligibility for DAPA. It is possible, however, that an expunged DUI will not be an automatic bar to eligibility; we will have to wait until DHS clarifies whether it will recognize expungements as a way to overcome DAPA crime bars. A charge that has been dismissed is not a conviction and therefore does not create a crime bar to eligibility. It is also unclear how USCIS and ICE will interpret the following language in the DHS Enforcement Priorities Memo, which provides that the removal of Priority 1 individuals must be prioritized unless “there are compelling and exceptional factors that clearly indicate the [individual] is not a threat to national security, border security, or public safety and should not therefore be an enforcement priority.”
Applicant in Removal Proceedings, With Removal Order, Or Other Immigration Law Violation
Q. What is administratively closing a case and terminating a case?
A. When a case is “administratively closed” it is still pending, but inactive, with no set future court date. Either party to the case the government or the respondent (the person in proceedings) may ask the court to “reactivate” the case. When a case is “terminated,” the proceedings are over.
Q. What happens if a person got expedited removal before January 2010? Is the person eligible for DAPA if she or he fulfills all the other requirements?
A. A prior removal order is generally not a bar to DAPA eligibility. Those individuals, however, who have been issued a final removal order on or after January 1, 2014 are in the priority 3 category of the DHS Enforcement Priorities Memo. We will have to see whether DHS guidance will allow such individuals to apply if they are otherwise eligible for DAPA.
Q. What is going to be the effect of one or more turnarounds at the border when the parent first came to this country? What about a deported returnee who has been herefor years, maybe decades since then?
A. See above.
Q. Can someone who has had two removals at the border over ten years ago and has a U.S. citizen child qualify for DAPA?
A. See above. Prior removal orders are not a bar to DAPA eligibility. Remember, however, that DAPA is a discretionary program and DHS may consider removals and subsequent reentries as negative factors.
Q. What about the permanent bar?
A. A person subject to the permanent bar to admissibility at INA Sec. 212(a)(9)(C), without more, is not ineligible for DAPA.
Q. What does it mean that the removal order was not “effectuated”?
A. A removal order that is not effectuated is a removal order that has not been enforced. A removal order is enforced when ICE or CBP (or legacy INS) physically removes the individual from the United States, or when a person departs the U.S. on his or her own while subject to an outstanding removal order.
Q. Where in the DACA/DAPA memo is the nondisclosure of information discussed?
A. The DAPA confidentiality policy is not in the 2014 Deferred Action Memo. The confidentiality policy is addressed at Question 10 of Key Questions and Answers on the USCIS webpage on Executive Actions on Immigration. Under this policy, information in a DAPA application is protected from disclosure to ICE and CBP for the purposes of enforcement proceedings unless the applicant meets the criteria for issuance of a Notice to Appear or a referral to ICE as described in the November 2011 USCIS guidance on this issue.
Q. Will DAPA recipients be eligible for advance parole through the I131 process?
A. At this juncture, DHS has not specified in writing that DAPA recipients will be eligible for advance parole. Our best guess it that, given the similarities between DACA and DAPA, DHS will allow DAPA recipients to request and receive advance parole.
Q. Can you review the option for DAPA folks to travel abroad on AP, reenter on AP, and then immediately adjust through their USC child (via Arabally)?
A. As noted above, we don’t yet know if there will be an advance parole option for DAPA grantees. Assuming there is, DAPA grantees traveling on advance parole will not trigger the unlawful presence ground of inadmissibility. Those DAPA grantees who travel and return to the U.S. with advance parole and are immediate relatives of U.S.citizens will likely qualify to adjust status under INA Sec. 245(a).
DAPA vs. DACA
Q. If someone is eligible for expanded DACA and DAPA, is there any potential benefit to one over the other?
A. Expanded DACA applications will be accepted earlier than DAPA applications. Second, DACA beneficiaries stood to benefit under the Senate Bill (S.744), including a shorter path to legalization. It is possible that future legislation may provide added benefits to DACA beneficiaries.
Source: Administrative Relief Resource Center