By Reeves & Associates

With the end of 2012 just around the corner we thought it would be a great time to look back at the major developments in immigration from the past year.

2012 has seen many exciting developments including the implementation of Deferred Action for Childhood Arrivals (DACA), the announcement of the hopefully soon- to-be implemented provisional waiver, and a major change to how the Child Status Protection Act (CSPA) should be interpreted which will allow many children who “aged-out” to reunite with their families in the United States.

Finally, the reelection of President Barak Obama and the acknowledgement from many leaders in the Republican party that immigration reform is necessary have left us with the possibility of improvements in the immigration laws during President Obama’s second four year term in office.

DEFERRED ACTION FOR CHILDHOOD ARRIVALS After struggling and failing to get Congress to pass the DREAM ACT, the Obama Administration took matters into its own hands and unilaterally implemented a program to allow some applicants to obtain work authorization, protection from deportation, and the right to travel by applying for deferred action.

An applicant granted deferred action is given protected status and work authorization for two years.  DACA is renewable at the expiration of the initial grant for another two year period. After obtaining deferred action, DACA grantees can apply for permission to travel out of the United States if the travel is required for humanitarian, employment or educational reasons. Of course, no DACA grantee should travel prior to receiving DHS’ permission to do so.

To qualify for deferred action a person must establish that they: arrived in the United States prior to reaching age 16; were under 31 years of age on June 15, 2012; were not in lawful status on June 15, 2012; graduated high school, obtained a GED, or are enrolled in school, or were honorably discharged veterans of the military; have resided in the United States continuously since June 15, 2007; and, have no significant criminal history.

RECAPTURING PRIORITY DATES UNDER THE CSPA Another major change in the immigration landscape came on September 26, 2012, when the U.S. Court of Appeals for the Ninth Circuit issued a decision in the class action Child Status Protection Act (CSPA) case brought by Reeves & Associates against the United States Citizenship and Immigration Services (USCIS).

In the decision, De Osorio v. Mayorkas, the Ninth Circuit held that the CSPA allows for retention or recapturing of priority dates in cases where a derivative child turns 21 years old while waiting for a visa to become available.  The decision overruled Matter of Wang, a Board of Immigration Appeals case that very narrowly restricted when retention could occur.  This means that for many immigrant applicants, after years of delay, a visa may already be available.

To illustrate the significant benefit of this decision let’s look at a hypothetical scenario involving Josefina, Josefina’s son Rodrigo, and Rodrigo’s two minor children.  Josefina is a lawful permanent resident of the United States who files a petition for her unmarried son Rodrigo in 2002.  At the time of filing, Rodrigo’s two children are 14 and 15.  In 2012, the priority date becomes current and Rodrigo is finally able to immigrate to the U.S.

However, his children, who are over 21, are no longer derivatives and may not immigrate with him. Under the prior interpretation of the CSPA, all the time that Rodrigo’s children had spent waiting in line with their father would be ignored and they would have to start again with a new priority date based on the new petition filed by Rodrigo.

However, under the Ninth Circuit decision, Rodrigo can recapture the priority date from the petition filed by his mother in 2002 and apply that date to his children’s cases.  Thus, his children’s time in line will be recognized and they will be able to join him in the United States shortly after he immigrates instead of many years in the future.

PROVISIONAL WAIVER Earlier this year the Department of Homeland Security announced plans to implement a new system to allow persons needing waivers for unlawful presence to apply for and receive those waivers before they left the U.S. to complete consular processing for their green cards.  The process is called provisional waiver.

Unlawful presence occurs when one has been in the U.S. without status for at least 180 days.  Upon leaving the country, a 3 or 10 year bar from returning is triggered, depending on how long one has been here without status.  Waivers are available but, up until now, they had to be applied for outside of the U.S.

The great promise of this new process is that it will cut down on the amount of time families will need to be separated, eliminate uncertainty as to the ability to return to the United States, and mitigate potential hardship and danger to applicants who previously would have to spend significant time abroad while waiting for a decision on their waiver application.

The final rules regarding the waiver process have yet to be published but this past October senior Department of Homeland Security officials indicated that they expect final rules to be published by the end of 2012 thus paving the way for applicants to begin applying for the provisional waiver.

2012 has seen exciting changes in the immigration world allowing many people to apply for benefits that they could not previously have obtained.  The coming years may bring even more positive changes, perhaps even a comprehensive overhaul of the immigration law resulting in many more avenues to immigration benefits.

If you believe that you or a loved one have an immigration problem, now would be a good time to consult with a reputable immigration law firm to see if any of these changes apply to you.

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