September 2011

Posted on: September 5th, 2011
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Siskind’s Immigration Bulletin – September 09, 2011

Published by Greg Siskind, partner at the Immigration Law Offices of Siskind Susser, P.C., Attorneys at Law; telephone: 800-748-3819, 901-682-6455; facsimile: 800- 684-1267 or 901-339-9604, e-mail:, WWW home page:

Siskind Susser serves immigration clients throughout the world from its offices in the US and its affiliate offices across the world. To schedule a telephone or in-person consultation with the firm, go to

Editor: Greg Siskind. Associate Editor: Juan Portillo. Contributors: Juan Portillo.

To receive a free e-mail subscription to Siskind’s Immigration Bulletin, fill out the form at . To unsubscribe, send your request to

To subscribe to the free Siskind’s Immigration Professional Newsletter, go to


1. Openers

Dear Readers:

After a lot of fanfare surrounding the release of the White House’s new policy on deportations, there was a great deal of hope that things had really changed and the Obama Administration was genuinely committed to at last addressing the shadow population in the US that lives here illegally. The policy, you may recall, would mandate that ICE focus its enforcement efforts on criminal aliens and that those who are low priority – students, the elderly, veterans, etc – would be taken out of proceedings and possibly even gain employment authorization. Not a broad legalization program with a path to citizenship, but a step away from the terrible situation most of those here without authorization face.

But there is reason to be concerned that the announcements are more for show than represent a real commitment to change. The White House reelection efforts are in BIG trouble and approval ratings in the Latino community are sinking like a rock. So the announcement seems like it is probably politically motivated. But the political ineptness of the Administration is on show again as now many are saying that this new policy is just an attempt to fool Latinos in to thinking the Administration actually cares about this problem. They are instead looking at the actions of ICE and the words now coming from government officials and logically concluding that nothing has changed.

For one, deportations of people clearly covered under the memo are still happening. For example, see this story of the removal of a teacher and cancer survivor with an American wife and child – Friendswood-teacher-deported-2143472.php . Stories like this are still popping up around the country. And DHS is now saying that nothing has really changed – that it still intends to deport as many people as ever – . I’ve also received reports that local ICE officials are saying that the policy is a “joke” and there are really no consequences that will be attached to carrying on with the status quo.

The performance of the White House on immigration issues has been truly disappointing for pro-immigration advocates who were promised action in the first year and have seen policies that have brought us no closer to solving the nation’s immigration problems. The President has a year to prove himself and whining about how he would solve problems were it not for an uncooperative Congress while
simultaneously carrying out the most severe enforcement policy of any White House in recent times is not going to lead to reelection.

Perhaps I can make a few suggestions? How about suspending deportations immediately for all individuals without criminal records rather than waiting on DHS to review all 300,000 cases? How about making clear that employment authorization should be provided to all such individuals rather than having a vague “case by case” review that invites arbitrariness and an abuse of discretion? And then allow people to turn themselves in to ICE in order to be covered under the program so that we can finally get millions of productive people out of the shadows.


Readers are reminded that they are welcome to contact my law office if they would like to schedule a telephone or in person consultation with me or one of my colleagues. If you are interested, please call my office at 901-682-6455.

Regards, Greg Siskind

2. ABCs of Immigration Law: E-1 and E-2 Visas

What is an E-1/E-2 visa?

The Immigration and Nationality Act provides treaty trader/investor nonimmigrant status for a national of any of the countries with which an appropriate treaty of commerce and navigation exists. An individual who wishes to go to the U.S. to carry on substantial trade, principally between the U.S. and his/her own country, may apply for a treaty trader visa (E1). Someone who is going to the United States to develop and direct the operations of an enterprise in which he/she has invested, or is actively in the process of investing, a substantial amount of capital is welcome to apply for a treaty investor visa (E2). The category is popular because unlike the L-1 category, it is not necessary to maintain a business outside the U.S. and also because unlike L-1 status, E-1 and E-2 visas can be renewed every five years without limits.

What documents are required to apply?

• E-1 Treaty Traders must submit a comprehensive letter from the principal alien’s company or employer identifying the applicant and describing in detail the nature and function of the business and the applicant’s position. The letter must be on the current business/employer’s letterhead, with an original signature from an authorized company representative, and must be addressed to the Visa Office, Department of State. The letter should demonstrate the applicant’s entitlement to E-1 status based on the continued trade between the U.S. and the country of the applicant’s nationality. The letter must contain a statement of unequivocal intent that the applicant will depart the U.S. when E-1 status ends. If the visa applicant is the solecompany employee in the U.S., submit the latest copy of the company’s FICA and IRS forms with the applicant’s letter of explanation. Please include the company’s fax number.• E-2 Treaty Investors must submit a copy of the company’s most recent financial statement. E-2 Treaty Investors must also submit a comprehensive letter from the principal alien’s company or employer identifying the applicant and describing in detail the nature and function of the investment and the extent of the principal alien’s participation in the investment. The letter must be on the current company/employer’s letterhead, with an original signature from an authorized company representative, and must be addressed to the Visa Office, Department of State. The letter should contain a statement of unequivocal intent that the applicant will depart the U.S. when E-2 status ends.

• One Supplemental Nonimmigrant Visa Application, Form DS-157, for all male applicants between the ages of 16 and 45, regardless of nationality, in addition to the DS-156. The DS-157 must be typed or printed. All questions on the DS-157 must be answered. Applicants whose native language is not written in the English alphabet should print their names in their native language in item 3 of the DS-157. An online version of this form is available at

• A passport valid for at least six months beyond the visa application date (including Visa Office processing time). If more than one person is included in the passport, each person applying for a visa must submit a visa application. You must present the passport bearing your most recent E visa. Each applicant receives an individual visa, and each Machine Readable Visa (MRV) covers a full passport page. Therefore, passports must contain a blank, unmarked visa page for each U.S. visa to be placed in the passport. Remove extraneous pieces of paper (slips of paper with phone numbers, old airline boarding passes, etc.) from the passport. You may submit a passport in a protective cover.

• The original or a certified copy of Form I-94, Arrival-Departure Recordannotated by the Department of Homeland Security (formerly INS) inspector from your most recent admission to the U.S.

• If the spouse and/or dependent children are applying for visas separately from the principal alien, submit certified copies of the principal alien’s valid visa and valid I-94 (front and back) in addition to the other listed requirements.Note that both E-1 and E-2 applicants can submit a variety of other documents demonstrating that an investment or trade between the U.S. and treaty country is substantial. Your immigration lawyer should be able to provide you with a document checklist, but expect to have to produce documents that concern – information on business activities such as marketing documentation, sales contracts, customer lists, etc.

– if the company has business abroad, information on the business and finances of the foreign operation

– information on the proposed position in the U.S. and background information on the proposed executive, owner, manager or essential employeeThe following countries have E-1 Treaty Trader Status: Argentina, Australia, Austria, Belgium, Bolivia, Bosnia & Herzegovina, Brunei, Canada, Chile, China (Taiwan), Colombia, Costa Rica, Croatia, Denmark, Estonia, Ethiopia, Finland, France, Germany, Greece, Honduras, Iran, Ireland, Israel, Italy, Japan, Jordan, Latvia, Liberia, Luxembourg, Macedonia, Mexico, Netherlands, Norway, Oman, Pakistan, Paraguay, Philippines, Singapore, Slovenia, South Korea, Spain, Suriname, Sweden, Switzerland, Thailand, Togo, Turkey, United Kingdom and Yugoslavia.The following countries have E-2 Treaty Investor Status: Albania, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahrain, Bangladesh, Belgium, Bolivia, Bosnia & Herzegovina, Bulgaria, Cameroon, Canada, Chile, China (Taiwan), Colombia, Congo (Brazzaville), Congo (Kinshasa), Costa Rica, Croatia, Czech Republic, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Georgia, Germany, Grenada, Honduras, Iran, Ireland, Italy, Jamaica, Japan, Jordan, Kazakhstan, Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg, Macedonia, Mexico, Moldova, Mongolia, Morocco, Netherlands, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Romania, Senegal, Singapore, Slovak Republic, Slovenia, South Korea, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad & Tobago, Tunisia, Turkey, Ukraine, United Kingdom and Yugoslavia.

Yes. A spouse of an E-1 or E-2 visa holder can work with an employment authorization document. Spouses must file an I-765 application with a regional service center along with proof of the spouse’s visa status.

Can one change to E-1 or E-2 status from within the U.S.?

Yes, the USCIS has the authority to approve a change to E-1 or E-2 status from another non-immigrant visa. However, once an applicant leaves the U.S., the applicant must apply for E Visa status at a consulate. Because the consulate can reject the application, one risks being put in a position where a substantial investment is made in a business in the U.S. and then the applicant is unable to return to the U.S. to run the business. Consequently, applicants are urged to exercise caution when first attempting to apply for E status in the U.S.

3. Ask

In our Ask section of the SIB, attorney Ari Sauer answers immigration law questions sent in by our readers. If you enjoy reading this section, we encourage you to visit Ari’s blog, The Immigration Answer Man, where he provides more answers to your immigration questions. You can also follow The Immigration Answer Man on Facebook and Twitter.

If you have a question on immigration matters, write We can’t answer every question, but if you ask a short question that can be answered concisely, we’ll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.


1) Question:


I came to the U.S. on an F-1 visa. I graduated in May 2009 and have never left. I assumed I was legal as long as my F1 visa has not expired. My visa is valid for another few months. I never applied for OPT because I did not know about it. Will I have a problem if I leave now?Unfortunately you are out of status since you graduated and did not apply for OPT or change to another status. The expiration date on your visa is not relevant to your status in the U.S. The visa is just a travel document that allows you to apply for entry into the U.S. Once you have been admitted to the U.S., the I-94 controls what status you are in and for how long. Your I-94 should have an expiration date of “D/S” which stands for Duration of Status. This means that you remained in status as long as you were doing the things required to maintain your status, such as having a valid I-20 or OPT and maintaining a full course load in the sponsoring school or OPT employment.

However, since your I-94 was issued for Duration of Status, you are not accruingunlawful presence (for an explanation of unlawful presence go to This means that you will not have an automatic 3 or 10 year bar for receiving a new visa should you leave and apply for readmission on another basis, such as an H-1B. However, since you have failed to maintain your status, you may have a hard time getting a visa that required a showing of nonimmigrant intent, such as a visitor’s visa (B). As always, since you have been out of status, you should have a consultation with an immigration law attorney before leaving the U.S.

2) Question:

An 18 year old cannot petition for their parents.

4. Border and Enforcement News:

Illegal Re-Entry Tops All Federal Charges

Cronkite News Service reports that illegal re-entry became the most frequent federal criminal charge in the United States during the first six months of fiscal year 2011. Experts attribute the rise in cases to various factors – such as new prosecutorial tools and a decision to use those tools aggressively. Authorities say one such tool is Operation Streamline, a federal effort launched in 2005 to prosecute immigrants criminally before deporting them the first time. If prosecutions continue at the current pace, illegal re-entry cases this year will be 3.5 percent higher than 2010. -re-entry-tops-federal-charges.html


Border Death Tally on Pace this Year to Set a Decade Low

The Arizona Daily Star reports that the 21 border deaths are the second-fewest registered in the summer month of July in the past decade. On average, 44 bodies have been found along the border every July from 2002 to 2010. The 2011 border death tally remains on pace to be as low as any year in the last decade but Dr. Gregory Hess, Pima County chief medical examiner, described the occurrence as “different…but not striking.” Hess explained that the number of deaths has fluctuated every year and he expects this year’s total to come in at the lower end of the average range. “Until people choose a new area to migrate through or something happens with policy that decreases the number of people that come through the desert, I imagine we’ll continue to see fairly consistent numbers,” Hess said.

I’m 18 years old. Can I file a petition on her behalf of my mother to bring her to the U.S.?

U.S. citizens can petition for an immigrant visa for their parents if the parent is outside the U.S. or entered the U.S. with a valid visa, but the U.S. citizen must be 21 to do so. bd69689e0471.html


States Can’t Opt Out of Federal Fingerprint Program

The Providence Journal reports that the U.S. Department of Homeland Security clarified that its controversial Secure Communities program was never voluntary, and said it will continue operating the program without agreements from participating jurisdictions. Steven Brown, executive director of the Rhode Island Affiliate of the ACLU, said the decision has prompted national outrage. “It means that ICE has been pulling everybody’s legs for two years and claiming that it was voluntary and they’re now saying it never was,” Brown said. ICE officials insist the move was an effort to remove confusion over the program and that they will continue pushing for their goal of a nationwide roll out by 2013.


Rain Washes Away 40 Feet of U.S.-Mexico Border FenceThe Arizona Daily Star reports that a 40-foot stretch of mesh border fence east of Lukeville in Southwestern Arizona was knocked over by rainwater rushing through a wash during a recent rainstorm. The hole in the fence marks the latest in a series of challenges for the barrier during rainstorms, said Organ Pipe Cactus National Monument Superintendent Lee Baiza. After water pooled behind the fence and caused flooding damage to the Lukeville Port of Entry and private businesses in 2008, the government installed liftable gates in drainage systems to stop flooding. During the recent flood, though, the gates were down, Baiza said. Environmentalists say the recent events show that there should be no border barriers in water crossings. 564a980049b2.html


ABC News reports that Rick Perry had an intense exchange about his views on border security and illegal immigration during a business roundtable in New Hampshire. When Perry criticized President Obama for border security, a local business owner repeatedly pressed Perry on what he was going to do about the dual problems of border security and illegal immigration. “You’re not going to ship 12 million people back to whatever country they come from,” Perry said. Instead, he insisted as president he would tackle the difficult task of devising a solution that avoids “making individuals legal citizens of the United States if they haven’t gone through the proper process.” border-security-assurances-maybe-he-was-talking-about-the-canadian-.html

Rick Perry Challenges Obama Over Border Security Assurances

The Border is Safe, Federal Officials Say The Texas Tribune reports that U.S. Customs and Border Protection Commissioner Alan Bersin fought back against criticism of President Obama’s border security policy, saying the present-day border is more secure than ever. Bersin said the increase in illegal immigration on the Arizona border in recent years is the result of successful operations in Texas and California, which have driven illegal activity to the Sonoran desert. “Violent crime is down since 2000 by 17 percent in San Diego, 11 percent in Brownsville, 36 percent in El Paso,” statistics Bersin says are overshadowed by the ever-present vitriol injected into the debates over immigration and the border. commissioner-border-safe/


U.S. Issues New Deportation Policy’s First Reprieves

The New York Times reports that the Obama administration’s new policy staying deportation proceedings against illegally present immigrants who meet certain criteria has taken effect. After five years fighting deportation, Manuel Guerra received news that he was one of the first immigrants to have his deportation canceled by immigration authorities. The new policy could lead to the suspension in coming months of deportation proceedings against tens of thousands of immigrants like Mr. Guerra. Immigrants who have their cases dropped will remain in a sort of legal limbo, not vulnerable to deportation but with no positive immigration status, which can only be conferred by Congress.


Implementation of Domestic Filing of I-130s for Certain Overseas Petitioners

U.S. Citizenship and Immigration Services (USCIS) announced that petitioners in countries without USCIS offices must file their Form I-130, Petition for Alien Relative, with the USCIS lockbox facility in Chicago. The agency announced the measure as an effort to “reduce costs to the Department of Homeland Security by reducing filings of the Form I-130 at international locations.” USCIS acknowledged the change may cause hardships for petitioners and posted a memorandum outlining some of the circumstances that may warrant expedited processing at a local embassy or consulate. Additionally, in light of comments received, USCIS is considering expanding the list of factors under which petitioners will receive expedited processing.


American Immigration Council Condemns Recent Board of Immigration Appeals Ruling

The American Immigration Council announced that it strongly condemns the recent ruling from the Board of Immigration Appeals holding that immigrants arrested without a warrant are not entitled to certain Miranda-like warnings prior to
questioning by immigration officers. The American Immigration Council contends that as a result of the ruling, noncitizens under arrest will now be even more vulnerable to pressure from interrogating officers.


“Self Check” Now Available In Spanish

U.S. Citizenship and Immigration Services (USCIS) today announced that Self Check, a free online service of E-Verify that allows workers to check their own employment eligibility status, is now available in Spanish and accessible to residents in 16 additional states: California, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Jersey, New York, Ohio, South Carolina, Texas, Utah and Washington. Self Check allows users to compare their information to the same databases that E-Verify accesses, giving them an opportunity to address any existing data mismatches before they are hired by an E-Verify participating employer.


5. News from the Courts:

Ala. Immigration Law Temporarily Blocked in DOJ Suit

Politico (DC) reports that Alabama’s self-proclaimed “toughest-in-the-nation” immigration law now faces its third major legal challenge, this time from the Department of Justice. In a statement released by the Justice Department, Attorney General Eric Holder said states cannot set their own immigration laws, reserving that right as a “national responsibility that cannot be addressed through a patchwork of state immigration laws.” The Alabama law’s chief legislative sponsor told the AP the Justice Department lawsuit is an infringement on Alabama’s sovereignty.

CNN reports that the judge considering the case, U.S. District Judge Sharon Blackburn, temporarily blocked the immigration law while she considers the merits of each side’s argument. In an earlier hearing, Blackburn questioned the requirement for school districts to check the immigration status of newly-enrolled students as well as a provision that allows law enforcement officers with “reasonable suspicion” that a person is in the country illegally to detain the person while checking their status.
She also questioned some of the claims made by the groups seeking the injunction. law-immigration-status-illegal-immigration?_s=PM:US


Ruling over PA. Town’s Immigration Law Vacated

The Associated Press reports that a federal appeals court vacated its ruling declaring a northeastern Pennsylvania city’s immigration law to be unconstitutional. The move by the Philadelphia-based 3rd U.S. Circuit Court of Appeals was expected after the Supreme Court ordered it to take another look at the law. The Supreme Court threw out the appeals ruling in June after the justices upheld a similar employer-sanctions law in Arizona. The order from the 3rd Circuit does not mean that the city can begin implementing the law because a 2007 district court’s ruling striking down the law remains in force. JX3wr72yMrWSazvo_xGA?docId=7bf5ad27d2344a2a9fd1dc3beb2d47d7


Arizona Petitions Immigration Law to Supreme CourtPolitico (DC) reports that Arizona Gov. Jan Brewer filed a petition asking the Supreme Court to consider her state’s appeal to a lower court ruling that put on hold parts of Arizona’s immigration law. Brewer said she is confident the Supreme Court will take the case and clarify the issue of authority in matters of immigration law. The 9th Circuit Court said in its April ruling against the state that the Obama administration would likely be able to prove that the law is unconstitutional and that Congress has given the federal government sole authority over immigration laws. Meanwhile, Brewer’s office continues to insist the federal government has not done enough to resolve the issues that result from illegal immigration.


Judge in NY Orders Federal Govt. to Release 40k Records on Immigrant Program by Sept. 13

The Associated Press reports that U.S. District Judge Shira Scheindlin told the government to release 40,000 documents about the Secure Communities program by Sept. 13 to civil rights groups and immigrant advocates. The judge set the schedule after rejecting a government plan to produce them by year’s end. Scheindlin also ordered the release of a document in which the government explains its rationale for the program. release-40k-records-on-immigrant-program-by-sept- 13/2011/08/18/gIQA5OZXOJ_story.html


6. News Bytes:

U.S. to Assist Immigrant Job CreatorsThe Wall Street Journal reports that U.S. Citizenship and Immigration Services (USCIS) unveiled several initiatives designed to attract and retain foreign entrepreneurs. Among the initiatives is a plan to make it easier for some foreigners to qualify for legal permanent residence, or green cards, if they can demonstrate their work will be in the United States’ national interest. The changes will also include a way for entrepreneurs to be eligible for so-called EB-2 immigrant visas without a job offer from an established company. Additionally, the initiatives include enhancements to the EB-5 investor program, which enables foreign investors and their families to qualify for green cards if they invest at least $500,000 in a U.S. project that generates at least ten jobs. html


Gov. Pat Quinn Signs Illinois DREAM Act into Law

NBC Chicago reports that Gov. Pat Quinn signed the Illinois DREAM Act to make scholarships available to undocumented high school students via a private Illinois fund. Students must have at least one immigrant parent in the country either legally or without documents and the student must have attended school in Illinois for at least three years to qualify for scholarship money. The legislation creates a panel to raise private money for college scholarships. The law is not associated with the federal measure by the same name and has no impact on immigration status. 126410333.html


Hacking Figure’s U.S. Visa in Question

Politico (DC) reports that Greg Miskiw, a former news editor at the defunct News of the World, may be in the United States on uncertain immigration terms. A spokeswoman for American Media, the U.S. tabloid newspaper company, said Miskiw “worked at AMI for a short time earlier this year and left the company a couple of months ago.” Miskiw told press at his Florida home last month that he is “returning to the U.K. voluntarily,” but since then there has been no sign that he actually returned to the United Kingdom. .html


U.S. Ambassador Urged Restraint on Afghan Visas

The Associated Press reports that 2,300 Afghans have applied to a special program that awards U.S. visas to Afghans who have worked for the U.S. government for at least a year and are in danger because of this work. Since the program’s inception in 2009, however, not a single visa has been handed out. A cable former Ambassador Karl Eikenberry wrote to Secretary of State Hillary Clinton in February 2010 suggests the delays may not be a matter of bureaucracy, but reflect a worry among U.S. officials over holding on to hard-to-replace employees.

“If we are not careful the Special Immigrant Visa program will have a significant deleterious impact on staffing and morale…local staff are not easily replenished in a society at 28 percent literacy,” wrote Eikenberry. Eikenberry’s letter underlines a central dilemma; the U.S. needs qualified Afghan staff to accomplish its mission but the Taliban and other insurgents have directly threatened Afghans working for the U.S. as “traitors” and collaborators.” Meanwhile, Washington is under pressure to give asylum to those who helped it. Some Afghan visa applicants have banded

together to make their plight known. Last month, dozens of anonymous visa applicants sent two open letters to media and U.S. officials protesting the delays. 20LoA?docId=3ae391d9f23e42d6a7644940d9e514ce


Rick Perry Called Tom Tancredo “Racist”

The Colorado Independent reports that Rick Perry’s recent decision to run for president has stirred up bad feelings from former Republican presidential candidate Tom Tancredo. Tancredo penned an opinion piece for Politico saying he is no fan of Rick Perry. Tancredo’s ire stems from the fact that Perry called him a racist during his run for president in 2008 for what Tancredo described as “[pressuring] the Republican candidates to take a hard line against illegal immigration.” In the past, Perry has been described as a friend to immigrants but since the Republican presidential nomination is unlikely to go to a coddler of immigrants he has recently taken steps to be seen as tougher on illegal immigration.


NM Governor’s Great Grandparents Were Illegally Present Immigrants

KOAT 7 News (Albuquerque) reports that New Mexico Gov. Susana Martinez remains committed to passing a bill to ban foreign nationals and illegally present immigrants from getting driver’s licenses. In the face of rallies, vigils, and heated debates, Gov. Martinez noted that she has something in common with the protesters because her own ancestors came to the country illegally. She asserted that it will not affect her stance. “This is not an immigration issue. This is a public safety issue,” Martinez said.


Liberians Get Extension of Special Immigration StatusThe Providence Journal reports that President Obama has extended through March 2013 the special immigration status under which Liberian nationals- many of whom came to the United States as refugees from civil war at home in the 1980s- are permitted to reside in this country. While the approaching expiration of the Liberian’s so-called “delayed enforced departure” has often raised anxiety among Liberians who have become well-settled in the U.S., the federal government has never signaled any intent to expel them. 11_4BPPPMF_v6.56265.html


Dominque Strauss-Kahn Accuser Expected to Face Deportation Hearings

The New York Daily News reports that Dominique Strauss-Kahn’s accuser, Nafissatou Diallo, will likely face deportation hearings after prosecutors said she admitted lying on her application for asylum. “Lying on sworn statements is almost a guarantee the case will be reopened,” said immigration attorney Jason Dzubow. 24_accuser_is_expected_to_face_deportation_hearings.html


7. Washington Watch:

ABA Urges Congress to Reject Birthright Law

The Associated Press reports that the American Bar Association passed a resolution urging the U.S. Congress to reject any changes to the Constitution that would eliminate automatic citizenship for anyone born in the United States. On the heels of some Republican lawmakers calling for legislation to repeal birthright citizenship the outgoing ABA President, Stephen Zack, said in an interview that the Constitution must be respected. John Eastman, a conservative law professor at Chapman University, argued that it’s an open question whether the citizenship clause of the Fourteenth Amendment allows for citizenship for anyone born in the U.S. and said it’s time for the U.S. Congress to clarify the issue.


8. Updates from the Blogs

Greg Siskind’s Blog on

The SSB I-9, E-Verify, & Employer Immigration Compliance Blog

The Visalaw Healthcare Immigration Blog

• Visalaw Health Care Newsletter Now Online
Karen Weinstock’s Visalaw Georgia Immigration Blog

9. Siskind Susser FAQ – 8/18/2011 Prosecutorial Discretion Announcement

1. Whatdoesthenewlyannouncedpolicydo?

On August 18, 2011, Secretary Janet Napolitano sent a letter to key members of Congress informing them that the Immigration and Customs Enforcement (ICE) would be reviewing all pending deportation cases and would be handling cases under a new process that will ensure that resources are being put in to deporting serious

Perry May Not be Tough Enough for Antis

CIS Ombudsman Launches Online Case Assistance Program

White House on Defensive Over Immigration Enforcement Policies

Washington State Candidate Wants to Kill Illegally Present Immigrants

Data Shows Birth Tourism is Rare

Listen and Ignore

BREAKING: White House Announces Specific Plans to End Deportations of

DREAM Act, Others

Same Sex Couples Should Benefit from New Deportation Policy

Widespread Insider Hacking at USCIS Under Investigation

Deportation Priority Policy FAQ

Smith to Bring Up E-Verify After August Recess

Shackled, Pregnant Immigrant Receives $200,000 Jury Award from Nashville Jury

ICE Closes Deportation Case Against Same Sex Spouse

Fox News Viewers Give Thumbs Up to President’s New Deportation Policy

Gohmert: Dems Have Secret Plan for Millions of Illegally Present Immigrants to Vote in 2012

Cancer-Surviving Teacher Deported Despite New Policy

BREAKING: Alabama Law Temporarily Enjoined

White House Has No Intention of Cutting Number of Deportations

Wadhwa: Skilled Worker Visa Reform Could Boost Housing MarketE-Verify for State Contractors Returns

in MinnesotaDOJ Settles with Farmland Foods Over I-9 Discrimination Allegations





criminals and not focusing on deporting individuals who are not a priority for deportation. The announcement should mean the end of the deportation process for a large number of individuals. The news follows the June release of a memorandum advising ICE officials to consider certain factors when deciding whether to proceed with a deportation.

2. Whatfactorsaretobeconsideredwhendecidingtoclosedeportation proceedings?

In the June ICE memorandum, several factors are listed including

  • Whether someone is a child or came as a child and finished high school in the US
  • How many years the person has been in the US
  • Whether the person is elderly
  • Whether the person has close family members who are permanent residents

    or citizens

  • Whether the person is a caretaker for someone who is elderly or in poor


  • Whether the person is pregnant or nursing or suffers from an illness or a


  • Whether the person or a family member is in the military

3. WilleveryonewhoisillegallypresentintheUSbenefit?Isthisan“amnesty” or legalization program?

No. Individuals whose deportation proceedings are closed are not going to receive a visa, green card or any new type of legal status. Some may be eligible for work authorization, however, but even being granted such documentation will not be the same as having a legal status in the US.

4. Howmanycasesareaffectedbythenewpolicy?

All 300,000 cases currently in the immigration courts will be reviewed for eligibility under the new guidelines. Also, future cases will also be reviewed under the guidelines to determine if ICE should be closing the case or proceeding with removal proceedings.

5. IstheresomekindofapplicationIcanfiletohavemycaseconsideredunder the new policy?

No. ICE will be reviewing all cases. If someone is already in deportation proceedings, their case will be reviewed.

6. I’mnotindeportationproceedings.CanIrequesttobeplacedinproceedings if I think I fit under the new policy?

There is no formal way to force ICE to put someone in removal proceedings. ICE has the discretion to issue a Notice to Appear and individuals who think they might benefit from the new guidelines may want to discuss with their lawyers the possibility of approaching ICE. But whether an individual would be placed in to proceedings would be entirely up to an ICE official.

7. WhatifIhavealreadybeenordereddeportedorhavebeenissueda voluntary departure order and have not left?

The process here is also unclear. Some immigration attorneys may seek to have such cases administratively reopened to benefit from the new policy, but these issues have not yet been addressed by ICE.

8. Areemploymentandotherbenefitsavailabletopeoplewhosecasesare closed under the new policy?

Yes, though details on how this will work are currently unclear. According to congressional offices briefed on the new program, individuals whose cases are closed will be able to apply for certain immigration benefits, including work authorization. DHS will review such applications on a case-by-case basis and it is not yet clear what standards they will be applying. Applications for work cards should NOT be filed until the procedures are clarified.

9. HowlongwillittakeforICEtostartclosingcases?

ICE attorneys are being asked to immediately start reviewing cases with hearings set in the next one to two months. DHS will also shortly begin the process of reviewing the rest of the 300,000 cases currently in the immigration courts. No guidance has been provided, however, on how long it will take before cases begin to be closed and how long it will take to review the entire caseload.

10. What will my status be once my case is closed?

Once a case is closed, an individual will continue in the same status he or she was in prior to being placed in proceedings. Some individuals may gain work authorization, but they would not be considered to otherwise be in a legal status in the US.

11. Will I be able to apply for other immigration benefits like a green card after my case is closed?

Possibly. However, the new policy will not remove barriers to green card processing such as being subject to the three and ten year bars on reentering the US as well as bars on adjusting status for individuals who entered the country without inspection.

12. Can I travel home for a visit after my case is closed?

We do not believe travel will be possible for most since departing the US would trigger bars on readmission and most would not be able to meet the requirements for being re-admitted back to the US. But this is a question to discuss with counsel.

13. My lawyer says I have a good case for cancelation of removal. Can I keep my case open even though I fit under the new policy?

That should be possible since all parties must agree for a case to be closed.

14. A notario has told me that she can submit a request for work authorization under the new guidelines. How is that possible?

It is not. Everyone should be very careful to avoid non-lawyers offering immigration services. There is no application process to benefit under the new policy. Anyone who suggests otherwise is engaging in fraud. We highly recommend consulting with a member of the American Immigration Lawyers Association. Do not file any application with USCIS at this time unless advised by a licensed attorney competent in immigration law.


  1. 1- Cual fué el anuncio de esta nueva regulación?

    En Agosto 18, 2011, la Secretaria Janet Napolitano envió una carta a un miembro clave del Congreso informando que el ICE, “Immigration and Customs Enforcement” revisaría todos los casos de deportación que estan pendientes y los hubicaría un nuevo proceso que aseguraría que sólo pondrían en deportación aquellas personas que hubieran cometido un delito grave, asegurando así que el resto de las personas no están bajo sus prioridades. El anuncio significaría el final del proceso de deportación para muchos individuos. Este anuncio fué a continuación del memorandum de Junio a los oficiales del ICE donde daba las pautas de cuando o nó poner a las personas en proceso de deportación.

  2. 2- Que factores deben ser considerados para poder determinar cerrar el proceso de deportación.

    E memorandum de Junio incluye deferentes factores que el ICE debe considerar:

    • ‐ Si la persona es un menor o entró siendo un menor y finalizó el high school in los E.U.
    • ‐ Cuantos a#os la persona ha estado en los E.U.
    • ‐ Si la persona es un anciano.
    • ‐ Si la persona tiene familiares inmediatos que sean residents o ciudadanos americanos.
    • ‐ Si la persona es la que cuida a un anciano ó a una persona que sufre de salud.
    • ‐ Si la persona está embarazada ó amamantando ó sufre de una enfermedad ó está desabilitada.
    • ‐ Si la persona ó un miembro de su familia es un militar.
  1. 3- La persona que está illegal en los E.U, se beneficiará? Es esto un programa como la Amnistía o el Programa de Legalización?

    No, los individuos que ya tienen su proceso de deportación cerrado, no van a recibir visa, green card ni ningún tipo de status legal. Algunos, quizas se beneficiarian con un permiso de trabajo, pero, aún así, con este documento, no obtendrian un estado legal en los E.U.

  2. 4- Cuantos casos serían afectados por esta nueva política?

    Todos los 300.000 casos que en la actualidad estan bajo la jurisdicción de la corte de inmigración serán revisados para ver si se encuadran dentro de los criterios anunciados en el punto 2 de la nueva guía. También, los futuros casos serán revisados bajo esta nueva guía para determinar si el ICE cerrará el caso ó procederá con el caso de deportación.

  3. 5- Hay alguna aplicación para presentar para que se considere esta nueva regulación?

    No, el ICE revisará todos los casos. Si alguien ya está en proceso de deportación, este caso se revisará.

  4. 6- No estoy en proceso de deportación, puedo pedir que me pongan en deportación, si pienso que me encuadro dentro de los nuevos criterios de esta regulación?

    No, no hay forma de obligar al ICE de poner a una persona en proceso de remoción. El ICE puede, a su discresión emitir la nota para que se presente en la corte, y las personas que crean que se beneficiarian por esto, deberian consultar con sus abogados la posibilidad de contactarse con el ICE. Pero quien determina, al final, sobre poner ó no a una persona en deportación será siempre el ICE.

  5. 7- Que pasa sí ya ha sido ordenada mi deportación, ó se ha ordenado mi Salidad Voluntaria y todavía no he salido?

    El Proceso no es claro, todavia. Algunos abogados de inmigración pedirian que se reabriera su caso para beneficiarse de esta nueva regulación, pero este tema no ha sido aclarado por el ICE.

  6. 8- Sería possible obtener el beneficio del permiso de trabajo ú otros beneficios al cerrarse el caso bajo esta nueva regulación?

    Si, pero los detalles de como sería no es claro todavía. Según la información de algunas oficinas de los congresistas con respecto a esta nueva regulación, los individuos que tengan yá el caso cerrado, podrian recibir ciertos beneficios de inmigración, como sería el permiso de trabajo. El Departamento de Seguridad del Estado (DHS) revisará las aplicaciones tienendo en caso la situación en particular. No es claro, todavía el criterio que aplicarán. No se debería aplicar para un permiso de trabajo hasta que no sea claro el procedimiento.

9- Cuanto tiempo llevaría para que el ICE cerrara los casos?

A los abogados del ICE se les ha solicitado comenzar a revisar los casos que tengan cortes dentro de uno ó dos meses. El DHS comenzará muy pronto a revisar el resto de los 300.000 casos que tengan la corte de inmigración. No se ha dado información sobre cuanto tiempo llevará revisar ó cerrar todos estos casos.

10-Cual será mi estado luego que se cierre mi caso?

Cuando ya esté cerrado, la persona mantendrá el mismo estado que tuvo antes que lo pusieran en proceso de deportación. Algunos recibirán sus permisos de trabajo, pero no se considerarán que están legalmente en los E.U.

11-Podré aplicar para otro beneficio de inmigración, como por ejemplo la green card?

Posiblemente (depende de su caso) porque esta regulación no borra la penalidad de los 3 ó 10 a#os por haber permanecido ilegal en los E.U. , ó la penalidad por haber entrado ilegal a los E.U.

12-Podría viajar a mi país luego que cierren mi caso

No creemos que sea possible porque al partir de los E.U se aplicaría la penalidad para la readmission y así no estarían calificados para que sean readmitidos a los E.U. Usted debería consultar con su abogado con respecto a este tema.

13-Mi abogado me dijo que tengo un buen caso de Cancelación de Deportación, me conviene seguir con mi caso aún que me encuatro con la nueva política?

Esto sería possible ya que se requiere del acuerdo de todas las partes para que se cierre el caso.

14-Un notario me dijo que podria ella/el pedir mi pemiso de trabajo bajo esta nueva regulación, es possible?

NO!!!! Por favor sea muy cuidadoso con su caso. Evite los servicios de las personas que no sean abogados. No existe una aplicación para presentar bajo esta nueva regulación. Cualquiere que le diga lo contrario, está cometiendo un fraude. Le pedimos que consulte un miembro de la Asociación de Abogados de Inmigración. No llene ninguna aplicación con inmigración, a no ser que haya consultado con un abogado competente con la ley de inmigración.