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04:43:00 pm, by admin   ,

Birthright Citizenship--Whack-a-Mole Starts All Over Again in the Senate

Like the proverbial Whack-A-Mole game of our youthful carnival weekends, the anti-immigration crowd once again trumpets this unicorn as a solution to America’s undocumented immigration problem. Most recently Louisiana Senator David Vitter (he of prostitute fame) seeks to eliminate what some call “birthright” citizenship.

 I have blogged on this before, because this issue pops up each year, usually with a politician facing a primary, as a way to gin up support from the margins of the GOP. "Birthright citizenship" is a derogatory way of saying the following: If you are born in the United States, you are a citizen by right of birth in the United States. This was not always the case in America, at least as it applied to African Americans or Native Americans. It took the Civil War, and the 14th Amendment, to ensure that anyone born in the United States “and subject to the jurisdiction thereof” is a United States Citizen.

Since at least 1994, when Congressman Bob Stump (R-AZ) filed H.R. 3862 calling for, among other things, an end to “birthright” citizenship, the anti-immigration crowd has been championing the idea that the 14th Amendment does not mean what it says. The “anti-birthers” argue that a U.S. born child who is born of a mother or a father who are NOT “legally” in the United States is therefore not a citizen because their parents are somehow “not subject to the jurisdiction” of the United States.

Some of these anti-birthers go so far as to claim that the Supreme Court has only on one occasion, and that in footnote, discussed the meaning of “subject to the jurisdiction thereof.” The problem with a lie (among other issues) is that if you tell it often enough some folks will believe it is the truth (such as, we never actually landed on the moon). 

Well to help you out (and possibly steer some of our Congressman and Senators from the precipice of irrationality on this issue) let’s look at what the “subject to the jurisdiction thereof” means in the context of the 14th Amendment to the United States Constitution.

First, a little history lesson. One of the first acts of Congress, after the adoption of the Constitution, was the passage and signing into law of the Naturalization Act of 1790, a copy of which is framed in my office lobby. As noted in Wikipedia: 

This law limited naturalization to immigrants who were “free white persons” of “good moral character”. It thus, left outindentured servants,slaves, free blacks, and later Asians. While women were included in the act, the right of citizenship did “not descend to persons whose fathers have never been resident in the United States….” Citizenship was inherited exclusively through the father.In order to address one’s “good moral character,” the law required two years of residence in the United States and one year in the state of residence, prior to applying for citizenship. When those requirements were met, an immigrant could file a Petition for Naturalization with “any common law court of record” having jurisdiction over his residence asking to be naturalized. Once convinced of the applicant’s good moral character, the court would administer an oath of allegiance to support the Constitution of the United States. The clerk of court was to make a record of these proceedings, and “thereupon such person shall be considered as a citizen of the United States.
The Act also establishes the United States citizenship of children of citizens, born abroad, without the need for naturalization, “the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens. 

So, prior to the Civil War, white people of good moral character were considered citizens of the United States. Beyond that rules on U.S. citizenship were, at best, haphazard. 

Second, under universally accepted rules of statutory and constitutional construction, we must consider the “plain meaning” of the words used, when they were used. “[S]ubject to the jurisdiction thereof” meant, in 1866: 

to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the national government, unknown to the common law), the two classes of cases,- children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state,-both of which, as has already been shown, by the law of England and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. Calvin’s Case, 7 Coke, 1, 18b; Cockb. Nat. 7; Dicey, Confl. Laws, 177; Inglis v. Sailors’ Snug Harbor, 3 Pet. 99, 155; 2 Kent, Comm. 39, 42. See, U.S. v. Wong Kim Ark, 169 U.S. 649 (1898)(citing Elk v. Wilkins, 112 U.S. 94 , 5 Sup. Ct. 41 (1884, and a LONG line of subsequent cases).

Quite clearly, the phrase “subject to the jurisdiction thereof” has long worked to exclude only the children of diplomats and native Americans who were members of sovereign nations. Everyone else born in the United States is a U.S. citizen by birth. Period. 

Third, and finally, the Supreme Court clearly and definitively ruled on the full and entire meaning of the 14th Amendment in U.S. v. Wong Kim Ark in 1898, over 110 years ago! In that case, the court considered whether: 

a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States.For the reasons above stated, this court is of opinion that the question must be answered in the affirmative. U.S. v. Wong Kim Ark, 169 U.S. 649 (1898). 

Mr. Ark, and the Supreme Court, have long ago resolved this question for us. Children born in the United States whose parents are not officially working on behalf of a foreign government are STILL United States Citizens. 

The proverbial “Rule of Law” standard espoused by the anti-birther movement would seem to stop these folks in their tracks. But, the anti-immigration, anti-birthe rmovement will not be stopped by law, logic or by fact. Nonetheless, besides being good public policy, it is good to know that the law is already crystal clear, and that no act of Congress is going to change what the Constitution says. As of yet, the anti-birther movement is still a small minority and does not have the power to adopt or pass the Constitutional Amendment necessary to strip citizenship away from U.S. born children. After all, and as noted by the Supreme Court in 1898, we fought a Civil War over this issue.


04:37:00 pm, by admin   ,

Why is USCIS Taking So Long to Renew DACA Work Permits?

If the calls to our office are any indicator, there are thousands of DACA recipients whose work permit applications were filed at least three months prior to expiration, who are still waiting for their renewed work permits.  Without renewed permits, these individuals lose the right to work legally, the right to drive, and may once again accrue unlawful presence.

The DHS published a notice in October 2014 advising DACA recipients that they could file their request for extension up to 150 days (5 months) prior to expiration.  As with all things government, very few of the DACA recipients, who tend not to frequent government websites, knew about the memo and many did not file so far before expiration perhaps thinking that extending a work permit was a like extending a drivers license, its is done in a few minutes.  As an experienced immigration lawyer will tell you, the USCIS does nothing quickly, and certainly does not worry that a person may lose their job or their driver's license just because they cannot efficiently print a new card after a background check.

Perhaps responding to the increasing number of panicked calls to their service centers (and from immigration lawyers), USCIS issued another memo in January 2015 advising DACA beneficiaries to file in the window between 150 and 120 days prior to expiration.  USCIS also said that if the exension is pending more than 105 days, they can contact the USCIS online with a request for a status:

USCIS’ current goal is to process DACA renewal requests within 120 days. However, you may submit an inquiry about the status of your renewal request after it has been pending more than 105 days. To submit an inquiry, please visit egov.uscis.gov/e-request or call the National Customer Service Center at 1-800-375-5283 (TDD for the hearing impaired: 1-800-767-1833)

If your DACA renewal case has been pending for at least 105 days, we strongly encourage you to actively follow up with the USCIS directly at the website and phone number provided.

As to the first question?  Why is it taking so long to renew a DACA work permit after the applicant has paid $465 and taken their fingerprints?  The crushing number of cases?  Hardly.  Extensive background checks?  Not likely.  Bureaucratic intransigence and poor management of resources?  That sounds like a more likely answer.  Like all things with USCIS, getting answers takes time, but when that time directly impacts a person's ability to work and drive, it is time to get aggressive.

USCIS has uniformly refused to abide by a time in which it MUST issue these work permits (if all other criteria are met).  So the only solution for DACA recipients facing this type of problem is to call USCIS, and to also call their congressman or senator. Each of those offices have individuals whose job it is to inquire on behalf of constituents (including DACA recipients) as to why your case is taking longer than normal. Be aggressive in seeking a response to your application. You paid for "customer service," you deserve to get actual timely service.


05:53:00 pm, by admin   ,

9 PREGUNTAS MAS RELEVANTES DE DAPA Y LAS RESPUESTAS QUE CONOCEMOS HASTA AHORA

1.     No estoy casado con mi pareja, pero tuvimos hijos en conjunto.   Puedo aplicar?

Si. No tiene que estar casado para calificar a DAPA. El único caso en que puede haber inconveniente es si el nombre del padre no aparece en el certificado de nacimiento porque los padres no estaban casados. En este caso lo que simplemente debe hacer es corregir el certificado de nacimiento en el condado donde el niño nació y reflejar el nombre del padre en el certificado. Si la madre no estuviese de acuerdo, un test de DNA sería necesario. 

2.     No tengo hijos propios pero mi esposa tiene hijos que hemos criado en conjunto. Yo califico?

Si. Siempre y cuando estuviesen casados antes que los niños cumplieran 18 anos. Inmigración los considera sus hijos para el caso de las aplicaciones de inmigración. Si actualmente usted no está legalmente casado, no se pueden considerar a estos niños como propios.     

3.     Yo fui deportado antes del 2010, pero me devolví a los Estados Unidos después de que me deportaron. Aun califico?

Si. Siempre y cuando usted no fuera deportado o estuviera ausente de los Estados  Unidos después de enero 1, 2014. Las deportaciones pasadas no afectan la elegibilidad de la persona para el DACA.

 4.     Mi hijo tiene DACA pero yo no tengo hijos que son ciudadanos o residentes permanentes. Aun puedo aplicar?

No. Desafortunadamente no puede aplicar. DAPA solo da la autorización de trabajo a los padres de ciudadanos norteamericanos y residentes permanentes. El presidente escogió no incluir a los padres de los hijos DACA en el programa de DAPA.   

 5.     Yo fui arrestado y condenado por DUI 10 hace diez (10) anos. Aun soy elegible para DAPA?

Todavía no tenemos una respuesta solida a esta pregunta. Hay rumores de que inmigración le dará el DAPA a la gente que fue encontrada culpable hace mas de 5-7 años atrás. Sin embargo, existen otros rumores que dicen que con solo un (1) DUI seria descalificado. Tendremos que esperar y ver la dirección que inmigración tomara en este aspecto en los próximos meses. 

 6.      Podría calificar así no haya reportado los impuestos durante el tiempo en que he trabajado en los Estados Unidos?

Hasta ahora no existe un requisito que diga que usted debe haber pagado o reportado sus impuestos.  Esto puede cambiar, pero si este es el caso usted probablemente debe pagar los impuestos desde el 2010 hasta la fecha. Lo que nosotros estamos seguros en asumir es que si usted recibió el DAPA por tres anos, y usted quiere renovar el permiso de trabajo, lo más seguro es que a usted le exijan que muestre el reporte de los impuestos de los anos que trabajo con el permiso de trabajo de DAPA.  

 7.     Que pasa después de que Obama deje la presidencia? El programa se terminaría?

No tenemos la manera de saber con certeza que pasaría una vez Obama deje la presidencia. Lo más seguro es que esto dependerá de dos factores: Si una reforma de inmigración integral pasa en el 2015, y si un republicano o demócrata es elegido presidente. Si una reforma integral pasa el próximo ano, DAPA no importaría mucho puesto que la gente tendría algo aun mucho mejor por aplicar. Si la reforma integral no pasa y un republicano es elegido, el próximo presidente cancelaria el DAPA. Si embargo, aun así inmigración no tiene manera de conseguir 4,000,000 de personas y deportarlas, pero por lo menos usted tendrá permiso de trabajo por dos años.

 8.     Puedo dejar los Estados Unidos una vez mi aplicación de DAPA sea aprobada?

Si. Usted puede aplicar por una autorización de viaje y en la mayoría de los casos retornar a su país de origen.

 9.     Yo tengo cinco (5) condenas por manejar sin licencia. Estas condenas me impedirán calificar para el DAPA?

No. Si usted tiene condenas por ofensas de tráfico como manejar sin licencia, estas condenas no lo descalificaran para el DAPA. 

Notificaremos a todos nuestros clientes y amigos de cualquier cambio de estas preguntas, y, por supuesto, los detalles del program cuando son anunciados!


05:51:00 pm, by admin   ,

The Form I-9: A Little Document with Big Consequences

Employers are required to verify the identity and employment authorization of individuals hired for employment in the United States.  This is done by the employer and employee completing a Form I-9.  In fact, we have probably all had to fill out a Form I-9 at one point or another in our careers.  Likely, we did not pay much attention to the document and simply viewed it as another small paperwork hassle.

However, there can be big problems for employers who take this attitude as an incorrectly completed Form I-9 can lead to substantial penalties.  Many employers mistakenly believe that penalties are only assessed to employers who hire undocumented workers and so they do not take the time to make sure the I-9 is completely and correct filled out.  They are often shocked to discover that fines can be assessed regardless of whether or not the employee is legally able to work in the United States.   

For example, ICE recently fined a small New York company several thousand dollars because the company did not fill out Form I-9’s within three days of hiring some of its employees.  All of the employees were authorized to work in the United States legally. The company was further fined because some of the Form I-9’s had not been fully completed.  Again, all of the employees were legally authorized to work in the United States; the employer simply skipped over some required fields in the form.

In short, the Form I-9 is a little document that can have some very big consequences.  Employers need to ensure that their human resource departments are adequately prepared and trained in how to correctly complete the Form as an incorrectly completed Form I-9 is a large liability despite the fact that the employee may be authorized to work in the United States.


05:51:00 pm, by admin   ,

5 Reasons Why You Shouldn't Wait Another Moment to Become a U.S. Citizen

President Obama, in his recent Executive Action on Immigration, made the naturalization of the more than 8 million legal permanent residents in the United States a priority. The President is currently promoting naturalization, possibly letting applicants pay with a credit card, and may consider a fee waiver. The time to naturalize is now.

Legal permanent residents, also known as residents or green card holders, may apply to naturalize, or become a citizen after 5 years of being a permanent resident (or 3 years if received got your green card through a U.S. citizen spouse). You can file your application 90 days before your 5 (or 3) years are complete.
You should begin this process as soon as you are eligible, and here's why:

1. Immigration authorities can almost never deport you once you are a citizen.

Once you become a citizen of the United States, immigration authorities cannot deport you under any circumstances unless they denaturalize you. Immigration can only denaturalize you if you lied or committed fraud on your naturalization or green card application. This means that no matter what happens in your future, no matter what mistakes you make, you cannot be sent back to your home country unless your green card or naturalization applications were fraudulent.
Remember the brothers who bombed the Boston Marathon? They were naturalized citizens, meaning they were not born U.S. citizens. The surviving brother, regardless of what crimes he is convicted of, cannot be deported due to his U.S. citizenship. Immigration simply cannot do it. While you should never violate laws of the United States just because you are a citizen, if you do make a mistake, citizenship will stop you from being deported at the end of your punishment.

2. Immigration authorities will be able to deport you from the United States if you are not a citizen, no matter how long you've been a green card holder or how long you've been in the United States.

If you are not a citizen, regardless of favorable considerations in your case, immigration will always have jurisdiction over you and the authority to deport you depending on your actions. And even if you do not commit any intentional crimes, accidents do happen. What if you are not a citizen, get distracted while driving, get into an accident, and kill someone? Depending on how you are charged criminally, there will always be a possibility you could be deported as a result of this accident. Neither extensive residency in the U.S. nor your good character before any accident or crime can guarantee you won't be deported.

3. You do not have to relinquish other citizenships to gain U.S. citizenship.

Contrary to some popular belief, the U.S. does not absolutely require you to relinquish all previous citizenship before naturalizing. While there are a very few exceptions and your case might be different if you hold a position of nobility in another country, the U.S. will let you retain your other citizenships when you naturalize.

4. You can travel outside the U.S. with much more freedom as a citizen than as a green card holder.

Many green card holders do not know that they do not have complete freedom to travel outside the United States with a green card. If you travel abroad for more than 6 months at a time, you could be denied re-entry when you come back to the United States. And this rule applies no matter how long you have been a resident. With U.S. citizenship, you are able to travel outside the United States without time restrictions.

5. You can apply for green cards for your family members much faster as a citizen than as a resident.

While the area of law governing whether you can give lawful status to your family is extremely complicated, in almost every case, your spouse, parent, or child can get a green card through you MUCH more quickly when you are a citizen instead of a resident. The process to apply for your family will be a year to several years shorter if you are a citizen. So if you're not naturalizing for yourself, do it for your family!

Overall there are very few reasons not to naturalize once you are eligible, so start the process now!
Posted by: Anna Erwin, Esq. Associate Attorney

aerwin@immigration.net


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