Legalization for DREAMers with military family member

Since comprehensive immigration reform is dead till 2017 (it will be revived assuming that the Democrats win solid majorities in Congress, retain the White House, and something else does not distract them the way President Obama was in the period 2009 and 2010), the Obama Administration is using backdoor techniques to provide relief to undocumented immigrants by exploiting loopholes in the law.  In a very clever move, he exploited a loop hole to create DACA for some DREAMers (and most experts now believe that like TPS this program will never be repealed), and yet again, he has found a gray area in the law that allows spouses, parents and children of an active duty or retired serviceman to be legalized, first through a parole-in-place, and then adjustment of status to permanent residency.

What is this program?  If you are undocumented in the United States, you get to legalize your status in form of a parole-in-place (meaning that you get paroled without leaving the US; in other words, your crime to cross the border illegally is forgiven and you do not have to go back to your native country for an interview for a green card).  The parole term will be for one year at a time but can be renewed indefinitely.  With this parole, you will get a work permit, your very own valid SSN, and will then be able to apply for a green card.

What is the cost?  Zero.  Due to the armed forces connection, there is no application fee.

How will it help you?  As you know if you overstayed a visa, legalizing your status has been easy if you are sponsored as a family member by a US citizen.  However, if you entered without inspection (EWI) meaning that you crossed the border illegally, the law requires you to leave the United States, even if you have a waiver through the USCIS Form I601A, and attend an interview at the consulate in your native country.  By receiving this kind of parole-in-place, the status can be adjusted without leaving the US.



What are the requirements?  USCIS will conduct a background check on you to find out if you have a criminal background.  If you are a convicted felon and somehow still in the country, you are not eligible, but up to three misdemeanors will be ignored (while the official notification does not indicate this, it is widely known that the Obama Administration is not conducting a very serious background search and security clearance and due to that many aliens even with false information on their applications or criminal histories are being approved).  If you are such an individual who has broken the law and has a criminal history, DO NOT file the application on your own and definitely use a competent legal advisor.

How to apply? 
  1. Don't do this yourself because this is once-in-a-lifetime opportunity to legalize without needing any kind of action by Congress.  Just hire an excellent lawyer to do the paperwork for you unless you are well-versed in dealing with the USCIS, have experience in completing applications, and know what you are doing.
  2. Just for your knowledge, you will need to complete USCIS Form I-131, and then attach a copy of the evidence of relationship with the serviceman or woman (for example, marriage/birth certificates), copy of both sides of the service member's military ID, and 2 passport pictures.  Mail this package to the Director of USCIS office depending on the state you live in.  Wait for a few months and you will get the parole approval.  You can then start the green card process.

Can I get a mortgage with DACA approval?

Generally speaking, the mortgage banks prefer making loans to permanent residents and citizens.  Banks may also issue loans to people with other types of visas like H or L, which are not permanent but do have potential.  As far as DACA approved DREAMers are concerned, only for IRS tax filing purposes are you a resident (a word that has a different meaning under tax laws than that for immigration status purpose -- basically, the IRS thinks you are a resident if you live in the US) but for everything else you are not even a resident (and definitely not a permanent resident, which is a term reserved for those with a green card).  With DACA, you continue to be in the US illegally and all it does is to grant you a deferral on deportation for two years.  During this time, you also do not accrue unlawful stay, which is also a technicality but can be helpful at the time of legalization.



The net result is that if the bank requires you to be a permanent resident for a loan, you are not eligible and you cannot claim to be a permanent resident (remember that while it is acceptable in the undocumented community to lie about your legal status including claiming to be a citizen or permanent resident but the US law puts a higher burden on those who have some kind of papers that they will be more truthful because the penalty for them is much higher and it is easier to catch them).  The loan application may not have an appropriate category for DACA, but if you talk to the bank let them know that you do not have a legal status in the US but for two years you have a right to live and work.  Some financial institutions may still issue a loan to you and might insist on a cosigner who is a citizen or permanent resident or may ask you put down a much higher down payment and/or charge you a higher rate of interest. 

CIR is dead; apply for DACA

Since one year of DACA statistics are now available and just about 600,000 applicants filed their petitions, it means that there are still at least as many eligible DREAMers who have not filed (I came up with this number based on the fact that the close to 2 million estimate was probably inaccurate and there are probably many DREAMers who have criminal records, do not have documents needed, lack the money to pay the fees, or simply don't give a damn about their immigration status).

I know a lot of DREAMers were waiting for comprehensive immigration reform to happen in the hope that they will save money by applying only once and also the hassle of putting together all the documents needed.  At the time of writing this blog post, unless there is a miracle (they don't seem to happen anyway if even one Republican is around), no experts believe that any legislation will pass this year.  Most legal scholars and Congress watchers believe that the next big hope for reform is probably 2017 if a Democrat is in the White House.



You can read the benefits of applying for DACA even if immigration reform magically happens but since it is highly unlikely to happen, you may want to file your DACA application even if it means that you have to do a lot of running around to compile the paperwork and borrow money to pay the fee.  At least you will have a work permit till 2016 and cannot be deported for just being illegally in the US.  This will give you enough time to plan for your future as well.  Many experts are suggesting that while it is understandable that undocumented immigrants with minimal education and low skills may want to live forever in the US even without status, it makes no sense for DREAMers will college degree to do so and they may want to explore their options elsewhere in the world.  Having solid professional experience possible only with a work permit will improve their chances of success in life wherever they can legally work.

What happens if I lie on immigration forms?

I have already highlighted cases of DREAMers who lied under oath but were approved for DACA and others who were approved despite submitting fake documents to USCIS.  Nobody knows how this happened, but I am also aware of one DREAMer approved with more than three misdemeanors even though he was not eligible.  We all know that like any other bureaucracy, USCIS does not attract the best talent, employees are overworked and poorly paid, and there is a lot of pressure on them to approve applications fast.  That is how things fall through the crack and I am sure each one of you have stories of immigrants who should not have been able to ever legally enter the United States are actually now naturalized citizens and continuing their fraudulent ways in other areas.


 

Now if you are tempted to lie on your application to the USCIS in order to get approval or to hide a piece of information by providing even false evidence, you should think again.  While so many fraudsters get approved, it does not mean that they might never be caught.  Actually, even naturalized citizens can be stripped of their citizenship if they engaged in fraud during the immigration process.  Obviously, other visas and green cards can be nullified without any trouble for lying or fraud at any point.  Jail time and then deportation are standard in such cases.

In order to highlight how this works let us review the case of El Salvador national Inocente Orlando Montano who applied for temporary protection status (TPS), a program similar to DACA.  In order to be eligible for the program, he knowingly gave the wrong date of his entry into the United States.  He also lied about his military service.  Montano has been convicted of immigration fraud and perjury for lying under oath on his initial application and those for renewals.  He is now in prison and after doing his time he is headed to his native country.  If you deliberately choose to lie on an application or submit a document that you know is clearly fraudulent, be prepared for punishment along these lines.

Deferred Action for parents of DREAMers

With comprehensive immigration reform all but dead, President Barack Obama is starting to act on his own by providing immigration relief to undocumented aliens.  His highly successful Deferred Action for Childhood Arrivals (DACA) program enabled about half-a-million young DREAMers a work permit, a valid SSN, and immunity from deportation.  It is expected that like the TPS program, this will be renewed indefinitely and even a Republican president may not have the guts to cancel.  The president is also encouraging undocumented aliens to cross the Mexican border and immediately seek asylum using the drug violence in Mexico and Central America as an excuse.  The Administration has also declared that those immigrants who are using fraudulent SSN or green cards will not be prosecuted for working illegally or for identity theft.  Now, in another excellent news for unauthorized immigrants if they have children of their own or if they take care of children of someone else (and these kids can also be in the USA illegally but definitely it is a plus if they are citizens) there will be no deportation and most likely no jail time.  Unless these folks are hardcore criminals they can use the excuse of taking care of kids to avoid going to jail or being deported.  For non-citizen children, it is understood that they are younger than 18 and the immigrants take care of them.  They need not be the so-called DREAMers, which does not have a legal definition and in different contexts can be more restrictive. 


 

Brandon Montgomery, a spokesperson for ICE, declared that "...ICE officers and agents may, on a case-by-case basis, utilize alternatives to detention for these individuals particularly when the detention of a non-criminal alien would result in a child being left without an appropriate parental caregiver.”  This simply means that if you are without a child, get one.  If you have kids back home, ask someone to put them on a plane to the US.  And President Obama is suggesting that if you plan to come to the US illegally, do not leave home without a child.

Such steps are prelude to what President Obama will do in case CIR officially dies.  Using DACA as a blueprint, it is expected that the president will give a permanent deferral on deportation for all eligible aliens that would allow them to get work permits, authentic Social Security numbers and a simple process to visit their native countries.

Likely reasons for extremely long delays in DACA approvals

Those DREAMers who have been waiting forever for DACA approval must not lose hope as long as they are eligible, completed the application accurately, provided all the evidence, and have a background that makes them eligible.  However, we maybe learning about some of the causes for delays of even over a year in approvals.  In evidence compiled by ACLU, Muslims are being targeted for greater scrutiny when it comes to approving applications.  There is no reason to believe that people of other faiths may also be targeted as long as there are national security concerns (the program is called Controlled Application Review and Resolution Program and does not mention Islam or terrorism and that is why it is fair to conclude that drug crimes or money laundering or cyber-crimes might be on the list).  It does not mean that you need to be a terrorist yourself to be targeted, but here are some of the things that can jeopardize your application:
  1. Being born in a country with terrorism.  Visits to such countries.  Even traveling through these countries can be a problem.
  2. Sending money to countries with terror links.
  3. Attending mosques where terrorists might hang out.
  4. Donating money to groups with suspected terrorism links (many religious charities are often fronts for terrorist groups who collect the money in the name of feeding hungry children but while 1% of the money maybe used for that purpose, the rest is used to fund training of terrorists)




Once the FBI puts a red flag on an applicant the approval is on hold.  In some cases, it may take years before the candidate is cleared, in other cases, there may be no approval if there is a serious doubt that the candidate could potentially use his/her legal status in the US for committing crimes.  So if you fit these criteria, you can find some explanation for what maybe causing the undue delay.

No prosecution for illegal employment or identity theft

We have already seen that many DREAMers who worked illegally using fraudulent documents or identity fraud (which are serious crimes under US law) were approved for DACA.  Legal experts concluded that without declaring so, the Obama Administration has essentially decided not to treat these as criminal actions by undocumented aliens (US citizens, however, will continue to be prosecuted for the same crimes).  We are now learning that this might very well be official policy, just not made public in a memo yet, because it will upset Americans and Republican politicians.

How did this come about?  Recently Danny's Family Carwash in Phoenix, AZ was raided by ICE, and except for a few staff members, all the rest were unauthorized workers who are in the country illegally.  While the illegal workers were arrested, they were all freed and will not be prosecuted or deported.  The comments by ICE spokesperson, Barbara Gonzalez, gave a hint of how the Obama Administration plans to deal with anyone working with a fake Social Security number or even a false identity using forged documents like green cards, Social Security cards, passports, driver's licenses, or claiming to be a US citizen.  She said, "As everyone here knows, we target employers, employers that aren't playing by the rules. We don't target the employees, we're targeting the companies that are not playing by the rules."


 

This is very positive news for undocumented immigrants who are unable to legalize their status right now.  They can now work without any fear of being caught merely for working illegally.  It is important to remember that just because President Obama is not enforcing these laws, it does not mean that those laws do not exist.  A Republican president might decide to enforce them.  Also, like any other legal resident, you can be caught and prosecuted for other crimes like drug possession, murder, DUI, etc.

Deferred Action for all DREAMers and other immigrants

When the president announced DACA he excluded many DREAMers but now with Comprehensive Immigration Reform all but dead, there is some promising news that Obama will declare a program similar to DACA for all undocumented immigrants.  It is expected that to get maximum political benefit the president will wait just as the 2014 midterm elections campaigning heats up, so I expect that it will be finalized around June 2014 and then applications will be accepted around August of next year.

What is the eligibility requirement?

Like the DACA program, you cannot have felonies on your criminal record, though, up to three misdemeanors will be allowed.  You will also need to show continuous presence for the approximate period of 2009~2014 and prove strong ties to the United States in form of employment, education or raising a family.  Parents of legal US residents (citizens, permanent residents, other legal status), parents of disabled family members, individuals who fear violence if they return home, victims of crimes, senior citizens, and DREAMers of any age will be eligible.


 

What is the application process?

You will be asked to complete an application that will include a separate application for a work permit in case you wish to have legal authorization for employment.  There will be a processing fee and after that you will be fingerprinted.  If all requirements are met, the application is complete, and the FBI gives a green light for your background check, you will receive an EAD, a valid Social Security number, and these can be used to apply for driver's license and advanced parole documents for restricted overseas travel.  While the program will not grant any legal status, it will definitely last till a Democrat is in the White House, but most experts believe that like TPS if such a program is put into place it will be impossible to repeal unless a crazy like Senator Ted Cruz becomes the president.

How to legally cross US border to seek asylum?

It seems that the Obama Administration is now encouraging DREAMers and other aliens to legalize their status through political asylum loophole because it is almost certain that Comprehensive Immigration Reform is dead.  For those of you who are risk takers and have the courage to do it, this is a very short window of opportunity to enter the United States legally, get a work permit, driver's license, and eventually a green card.  As already explained previously, it would be best to hire an excellent attorney to make the process go smoothly, but there are reports that immigrants who speak no English at all have been legally admitted into the United States after saying just the password "credible fear."  Basically this is a legal term that you have genuine fear of being persecuted or tortured either by a government or gang or group (e.g. if you are in a Catholic country and want to become a Protestant Christian you can even claim credible fear of persecution by fellow Christians or you can claim that you are being persecuted for not speaking Spanish or speaking it with an accent as DREAM9 members claimed).  For those of you who are planning to seek asylum in the United States, the best option is to claim fear of drug dealers and mafia members.


 

How to make sure that you have a rock solid case?  Get a good lawyer involved.  There are also reports that coyotes that specialize in immigrant smuggling are also provide fake documents related to ransom demands and are also beating up people to prove violence and abuse (they are also providing photos and doctor's certificates).  They also able to procure police reports from corrupt cops documenting the (fake) torture.

What will happen in the United States once you arrive?  Apparently, the system is so overwhelmed that you no longer have to live even in a prison.  American taxpayers are providing free hotels and food for asylum seekers.  Since there is enormous pressure on the government to keep these costs low, most likely you will be released right away and be able to purse your path to green card while living like a legal immigrant.  Many experts fear that the rules might change soon so the opportunity is short.  This path is perfect for those DREAMers who were deported or left voluntarily because they have nothing to lose.  Most likely they will not be covered by Obama Immigration Reform and trying to come any other way will take years.  The law and order situation in Central America and Mexico is so serious that everyone qualifies.

Should DREAMers self deport to legalize?

As you are aware, many DREAMers have exploited a loophole in advance parole to erase the EWI black mark on their immigration record.  The actions of DREAM9 have also shown that Obama Administration is hinting that asylum is an option if you do not have a case.  So is it legally advisable for DREAMers to consider self deportation, and then file a petition for asylum in the United States.  Clearly, if the United States Government thinks that Mexico is torturing and persecuting its own citizens just because of their ties to the United States, things in Central America are similar to war.

For whom self deportation is an option?  Clearly, if you were deported and are stuck in your native country, there is nothing to lose by trying to seek asylum in the US by essentially preparing the paperwork and showing up at a land crossing in Mexico.  Similarly, for those undocumented immigrants who came after the cutoff date for RPI status or do not have the documentation to support their presence here, since they will also not be covered by CIR, this is clearly an option to consider.  Yes, you be stuck in jail for months/years but you may also be released and be free to work legally, have a driver's license, and live a normal life.  That is exactly what DREAM9 by leaving the US.  They no longer have to care whether Comprehensive Immigration Reform passes or not because most likely they will get their green cards.


 

What are the risks of self deportation?  As anyone who has read the eligibility requirements for DACA or RPI knows that presence in the United States on a certain date is a must and so is that you did not leave the US during this time.  So by voluntarily leaving, you are creating a problem there, but if you do most of the preparation before walking into Mexico and spend only a few hours or even days in Mexico, you maybe able to exploit the loophole about brief and innocent absences (while many legal scholars will not consider it innocent if you leave deliberately with the aim of pursuing an asylum, the undeclared message from the Obama Administration is that they will look the other way as long as the immigrants are exploiting loopholes).  In other words, the risks are very small for a group of DREAMers and if you have an attorney working with you, it is possible to become legal without waiting for Congress to act.

How to erase record of my fake SSN?

Most working age DREAMers have used a false Social Security number in the United States to live their lives allowing them to attend college, open bank accounts, get credit cards, apply for car loans/mortgages, work, and even file taxes (incidentally, all of these are serious identity theft crimes and often felonies punishable by years in jail and even deportation, if caught).  With the help of DACA, many DREAMers now have valid Social Security numbers but looks like the weight of a fraudulent SSN is hanging around their necks.  Even if they leave their current jobs (where it is nearly impossible to switch fake SS#) and start new ones, the paper trail with old number is too huge.  For instance, school/college transcripts cannot be updated with new numbers.  Going to a bank and trying to modify the SSN will actually trigger a fraud investigation by the bank and lawsuits will soon follow (paying down the debts in full is not an option with mortgages for most).  Even worse, while the credit bureaus will happily take your new information and add it to their databases, the old information never goes away and will always be part of your credit history since the bureaus are notorious for errors in their reports, but more importantly, the approach of these institutions is to add whatever information that they can find on you even if it is inaccurate (the net result is that you have now permanently created a record of breaking the law and this can be an issue in jobs that require handling money, crime fighting, or intelligence).  So when you mail them a copy of your Social Security card or somehow the institution with which you are now doing business using your new real number, they simply add it to the file rather than delete the old one.  Being private companies, we have no control over what data they keep in their files.  The net result is that your credit record will always show your past because the bureaus use several identifiers (like phone numbers, addresses, credit accounts held, etc.) rather than just SSN.


 

So is it possible to start over with a clean slate after receiving a genuine SSN?  To the extent possible, try to change your number.  For instance, you can get a new job.  You can also close your old credit accounts by paying down the debts.  With regards to credit history, the financial institutions are more focused on your current income and your history of paying down past debts rather than what identifying information is on your file.  As long as you have a good record of paying down your debts and have the income to qualify for a loan, most likely the financial institution will ignore fraudulent information.  Maybe it will be a problem in situation where the investigation in your background will be more thorough but if you live a crime-free life, employers and institutions will ignore the offending information.  Inconveniences due to negative information are simply a small price to pay for past unlawful status.

Asylum options for DREAMers

While DACA has provided some DREAMers with a work permit and deferral on deportation, the strict eligibility requirements left out many of them.  For instance, many of them who arrived after the cutoff date or are older than 31 or do not have a high school diploma or have a criminal history.  Since there is a high probability that Comprehensive Immigration Reform is not going become law any time soon (even if it does, it will not be comprehensive and millions will be ineligible), DREAMers now have another option: asylum in the United States.  The recent decision in the case of DREAM 9 individuals (Lizbeth Mateo, Claudia Amaro, Ceferino Santiago, Lulu Martinez, Marco Saavedra, Luis Leon, Maria Peniche, Adriana Gil Diaz, and Mario Felix) that they were allowed to seek political asylum means that the United States Government is now encouraging immigrants to seek this route if no other options are open to them to immigrate legally to the USA.

How to exploit the asylum law loopholes to become legal?



  1. Don't try this DIY.  Get the most competent attorney you can afford and make sure this lawyer knows how to deal with asylum cases.  The downside is that if your asylum petition is denied, you will be deported and a ban may be imposed on reentry into the US.  Therefore, it is absolutely critical for you to think it through based on legal advice and choose this path only if you will be fine returning your native country.
  2. Get your paperwork in order.  Remember that President Barack Obama is offering asylum even to Mexicans.  In fact all these aliens were in Mexico free and happy and there is no proof that they were tortured by the Mexican Government or that they faced any threats to their lives.  In other words, the Government is ignoring the need to prove fear of persecution.  So if you have even a remote fear of persecution, try to collect evidence.
  3. Go to Mexico (you don't have to be a citizen of Mexico to go there).  The border crossing points have one way open door to Mexico without the presence of any immigration agents and you can basically just walk in.  If it is an option, use the opportunity to meet with friends and family or even take a vacation, but you could turn right back and join the long lines to cross the border into the United States.  If you can do that in a group, even better, but you can also do it alone.
  4. Present yourself to the border agent with your paperwork and formally request an asylum.
  5. You will be immediately arrested.  Obey all orders and do what you are told (the officers are armed and authorized to shoot if you do something stupid).  Stay calm and do not talk unnecessarily.  Go to the detention center and stay out of trouble (no need to scream or protest or go on a hunger strike).
  6. The process of asylum will start and just follow it.  You will be told what to do by officers.  Use a prison pay-phone to stay in touch with your attorney and family.  Your lawyer will have already prepared you to answer all questions.
  7. Most likely, you will be released free and then you can apply for a work permit, driver's license, advanced parole (just don't travel to the country that you accused of torturing you because that will hurt your refugee case), and will be to live like any other legal immigrant for years because the cases can drag in the courts.
  8. Hope that your asylum petition will be approved and that point you will be eligible for a green card and eventually citizenship. 

Apply for DACA if already working with my own SSN

Natalia writes, "I would like to apply for DACA, however, I worked using my social security # that was issued to me that states "valid for work only with ins authorization."  I came to the US when I was 13 years old. Went to HS for 4 years and graduated. I then enrolled and graduated from a vocational nursing school, got a student loan to pay for it, and still paying for it. Nowadays, I work as a nurse using my own social security # and file my income taxes yearly. Furthermore, I am still going to a community college, in order to finish my studies and hopefully to obtain my nursing degree.  I would like to ask for your advice, because I make an annual income of $40k/year and would like to know if I might come across some dilemma working with my SS# with restrictions on employment."

It is obvious that you have a huge paper trail of working illegally, a fairly serious crime.  The fact is that many other DREAMers are also working illegally, but in their cases they are using fraudulent Social Security numbers and some of them have engaged in outright identity theft, which are even more serious crimes.  Most of these individuals have been approved for DACA despite many of them making as much money, if not more, as you do.




So my expectation is that if you apply, you will be approved as long as you are otherwise eligible and provide all the requested evidence.  Strictly legally speaking, though, as you might understand, as it is you have created a huge paper trail of illegal employment (by filing taxes, by fraudulently claiming a right to work on Form I-9, and I am not sure if you ever claimed to be a US citizen in order to work or get student loans which are typically not given to undocumented immigrants and that would be a very serious crime and can completely destroy your chances of ever legalizing in this country even if comprehensive immigration reform passes), so filing for DACA will not make your situation any worse.  The Government already knows that you are working without authorization and does not need any more evidence to charge you for fraud, so by applying for DACA, you might actually do some good for yourself by preparing for RPI visa.

You see applying for DACA comes with certain risks since it is not US law yet.  In case immigration law is not changed and crimes like yours are not forgiven, a DACA application will come to bite people who apply.  While it seems unlikely that the Government will go after you for just this crime, many immigrants have been caught in routine workplace audits by ICE, and others who were caught for smaller crimes like driving without a license or having a broken tail light in their car or whatever law they break, these actions will then be combined to build a deportation case against them.

Help to get DACA in New York City

While the overall number of DACA applicants has been disappointingly low, other programs designed to help DREAMers have also failed.  Immigrant advocates have been scratching their heads wondering where are the two millions that they had hoped would take advantage of Deferred Action For Childhood Arrivals, which not only grants a reprieve from deportation for two years (and renewable after that, at least as long as a Democrat keeps winning the White House after 2016) but also provides a work permit and valid Social Security number.  The DACA approved DREAMers also qualify automatically for RPI visa after Comprehensive Immigration Reform becomes law.  While life after DACA is not a cakewalk (the job market is tight for everyone), many DREAMers are finding employment, buying cars, traveling on planes, driving cars -- all legally.


 

Now the City of New York is hoping that by helping other unqualified DREAMers (who meet all requirements but lack a high school diploma and are currently not enrolled in GED), they can increase the number of DACA recipients.  The State will spend taxpayer dollars ($18 million) to provide free adult education classes to undocumented immigrants so that they can claim to be enrolled in GED and apply for DACA.

Use AP to fix EWI situation

DREAMers who entered the United States without inspection (EWI) are (in the absence of an amnesty that would forgive that crime) cannot adjust their status in the United States even if they are otherwise eligible to do so, for example, by virtue of marriage to a US citizen.  They will need to undergo consular processing with the risk that they me barred from entering the United States for a number of years depending on the time spent under unlawful status in the country.  Under very special circumstances, they can ask for a waiver of that ban by filing USCIS Form I601A and then wait only for days/weeks in their native countries, but this privilege is only available if they can demonstrate that undue hardship will be caused to their citizen family members.

It turns out that some DACA approved DREAMers are exploiting a loophole in the law to erase the entry without inspection mark on their immigration history.  This is how they are successful in doing it:


 
  1. Fabricate an excuse to travel overseas for humanitarian reasons (e.g. it is common in most poor countries to bribe medical professionals to furnish fake medical documents for a sick individual, even if the person never existed or has been dead for decades, apparently sick grandparents are popular relatives).
  2. File for advanced parole (USCIS Form I-131).
  3. After approval travel abroad.
  4. Enter the US legally at a border checkpoint (airport or land crossing), present a valid passport, AP paperwork, and be legally admitted to the US (a valid I-94 is now available).
  5. File for adjustment of status within the US
So is this process worthwhile?  Yes, but only for those who can adjust their status in the US by virtue of marriage or whatever other privilege you have.  An advanced parole approval is not guaranteed to everyone who applies (while there is no penalty for rejection if the USCIS suspects that you are engaging in fraud or your case is not genuine, the rejection will stay on your immigration record and can be a factor in future immigration decisions  -- it should not affect your DACA directly) and you are also not guaranteed reentry into the US.  You may actually be turned away at the airport and a bar maybe imposed upon you.  This is a huge risk and that is why many legal experts have been recommending DREAMers to not leave the country.

If you still wish to proceed, get your paperwork before leaving (while you will not need the AP documents to leave the US, if you leave without an approval in hand, and then find out overseas that your application is denied, you will not be able to return), have a valid passport with you before leaving (you will need it to enter your country if flying, unless it is Mexico where you can simply cross the border) because you will need it to enter the US and your passport will then be stamped by the border agent, and then come back within the time indicated on the AP.  At the origin airport, you will be cleared to leave if you have a valid passport and AP paperwork.  While clearing immigration in the US, be prepared for questioning by the agent.

Legalization of same sex spouse for undocumented immigrants

In the Obama comprehensive immigration reform there is enormous emphasis on keeping families together and the great news is that now those of you who are in a gay or lesbian relationship will have the same rights as heterosexual couples.  Not only does the DOMA ruling makes it more probably that CIR will become law, but it also means that gays and lesbians will not be discriminated.  So, nothing else really changes, except that when you are doing the paperwork for RPI status, you will be able to include your same sex partner.  The other great news is that if you are in a same-sex relationship with someone who is in the United States legally (citizen or permanent resident or other legal status), you will be able to adjust your status without waiting for immigration bill to become law.

Did Massachusetts DREAMers disqualify themselves from CIR?

Here in the Commonwealth of Massachusetts, where DREAMers Are Us is based, I was closely following the news related to giving in-state tuition to DREAMers by Governor Deval Patrick.  In this state with some of the finest colleges and universities, it was expected that all these DREAMers would be able to go to college and the Governor fought hard for them.  Looks like it was a waste.  So far not even 50 students have taken advantage of the exemption (out of approximately 300,000).  So what went wrong?



  1. The immigrant rights groups have a hidden agenda to exaggerate numbers so that they can take advantage of all the government and charitable goodies that come their way.  These activists groups clearly overestimated the number of DREAMers eligible for DACA, predicting that millions of young undocumented immigrants will come out of the shadows.  In that sense, DACA too has been a massive disappointment.
  2. DREAMers are just too poor to go to college to pay for the rest of the expenses.
  3. It is also being hypothesized that many DREAMers have lied about their undocumented status and have declared themselves to be US citizens.

What are the implications?

If you fraudulently checked the US citizenship box on your college application, then you will not be eligible for legalization to RPI status under Immigration Reform.  Even if you claimed to be an American in high school before the age of 18, you can seek a waiver, but after 18 doing so will make you ineligible.  You maybe able to appeal to a judge but it will be hard to convince a judge that you did not know your citizenship status while being smart enough to attend college.  If you are one of these cases, you need to immediately correct the mistake in your college records and that might be counted as a plus while filing for relief in the courts, but if you do not wish to do so, you will at least have had excellent college education from the US that can be put to great use in your native country, or you can continue to live as an undocumented in America, since it is expected that only about 50% of the illegal immigrants will legalize; the balance 5 million or so will continue with their lives without status (most experts believe that all the tough talk about eVerify is utter nonsense and the US Government has no intention whatsoever of enforcing it).

DACA approved after lying under oath

It looks like DREAMers and all other undocumented immigrants will have an easier path getting approved for RPI immigration status assuming what a sloppy job USCIS is doing with DACA applications.  After highlighting that USCIS has approved DREAMers with fake documents and even those with more than 3 misdemeanors, my attention was drawn to a DREAMer who admits to lying under oath during an interview for DACA with USCIS agents being approved.  As you can see in the image below of the story told by the DREAMer on an online forum (click the image to see the larger version), basically he used a fraudulent Social Security number to work but when asked about it by the officers under oath, he lied about it (the agency has deliberately not asked about it in USCIS Form I-821D so lying is not necessary).  The approval came right away and it is expected that such candidates will be automatically approved for RPI visas without additional scrutiny, followed by green cards and eventually citizenship.


 

Story of illegal immigrant approved after lying under oath during field interview

So is it okay to lie to the USCIS under oath?  Many of you will see this (there are many other stories about immigrants who lied on their applications or submitted fraudulent documents and are now American citizens) as a reason to submit false testimony to the Federal Government either in your application or during an interview, but legally, this is never acceptable (even though the poorly staffed USCIS with their low pay and constant Republican attacks mean that the officers will never have the time and resources to check anything and will basically be rubber stamping all the applications they receive).  It is a very serious crime, if caught (and you can be caught even after you naturalize), punishable by rejection of the application and jail time prior to deportation.

Job background check for DACA approved DREAMers

While the DREAMers have found a huge opportunity with DACA, it is not possible to just go on with their lives like regular Americans.  A rapidly developing problem for these folks is finding work.  Not only is the employment environment bleak (forcing many DACA approved DREAMers to continue working at their old jobs still using their fake Social Security numbers, while being in possession of a valid SSN and work permit; others continue to work under fake or stolen identities), those who are able to find new jobs are running into problems with background checks commonly used by employers.

When DREAMers with professional qualifications want to take advantage of their previous (illegal) work to prove that they have the relevant work experience or to prove that they are superior candidates, they have to provide a lot of details.  Unfortunately, since their identities do not match with the databases used by research firms, it comes across as if they have been lying about their skills and experience, a reason enough for rejection without assigning any cause (the employers typically send a canned response never disclosing that they found you to be lying on your application).


 

Some candidates have approached or were approached by background investigation firms and they confessed to working without valid documents or that they were sill undocumented or that they had used fake papers in the past to work, and not surprisingly, this information gets included in the report but also entered into the databases used by these firms.  Obviously, no corporation will hire an individual who admits to working illegally or for stealing identities, particularly if the job requires highest level of integrity, like in finance, law, security, intelligence, research, banking, etc.

What can DREAMers do to deal with this dilemma?  It is a very difficult situation to be in and the best option is to avoid applying to employers for whom a clean background is a must.  So if you were lying or using fraudulent documents to be in the United States and work, how can you be trusted about anything else, the argument goes in the minds of a recruiter, who probably has dozens of other candidates to choose from, and there is no way to win here.  That is why it is best to stick with small employers that are not likely to engage in a thorough background investigation and often rely on just picking up the phone and calling your references.  You may have to do this for a few years (at least two is good for most entry level jobs and about five for mid management jobs) and that way you can develop a good history over time.  But remember that in some databases you will never come across as clean and there are some jobs that you will never be able to get simply because a lot of large corporations are very meticulous about these things and often do not even read the background reports seriously.  If the background research firm sends a report with a few red flags about you, they simply hire the next candidate.  Basically, it is the price you will need to pay for your past as a lawbreaker.

DACA approval for more than 3 misdemeanors

If you read the eligibility requirements of DACA you know that you are eligible only if you have a maximum of three misdemeanors.  Well, it turns out that USCIS is not only approving those DREAMers who used fraudulent entry documents, it is also approving applicants with more than three misdemeanors on record.  One user on a forum for DREAMers is reporting that "i have 4 Misdemeanor charges on my record for traffic related stuff like Driving under Revocation etc but nothing violent.  I consider myself lucky to have went thru" (spelling and grammar mistakes are by the original poster, not me).


 

Basically, this goes on to say that the prosecutorial discretion is powerful and one should not be afraid of applying for an immigration benefit just because one is not eligible.  The USCIS officers have a lot of freedom in deciding cases, and in the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 (BSEOIM) the prosecutors can literally give the Registered Provisional Immigrant (RPI) legal status to anyone even if they do not meet any of the requirements because of the waiver loopholes.  Also, do not forget that USCIS offices are understaffed and overworked (you can thank Republicans for never approving enough funds for government that keeps the employees highly discouraged and unmotivated) and some even consider them incompetent and careless for approving Chechen terrorists.

Is it possible to switch DACA to other visas?

Several DACA approved DREAMers have been asking me if they can change their status to F1 or H1B to legalize their status.  Indeed, it is true that the United States immigration laws allow change of status from one visa category to another in limited number of cases (the guiding principle being your intention -- for example, if you applied for a tourist visa and then want to switch it to a job, USCIS is not amused and may insist that you first leave the country), this provision does not apply for deferred action for childhood arrivals.  Why?  DACA grants no legal status in the US and is not a visa.  It is merely a temporary hold on deportations for two years.

USCIS approving DREAMers who used fake documents

Those DREAMers who used fraudulent passports and/or visa to enter the United States have been wondering if they will be approved for DACA and eventually for RPI status.  Well, while researching the forums of DREAMers, I have come across a case in which an individual who did this has already been approved.  This is a process that maybe very familiar for those in the undocumented community.

How does the process work?  Everyone knows that visas to the United States maybe somewhat difficult to obtain, but they are fairly easy for wealthy people.  Once you get the visa, renewals are even easier, and so are adding family members.  So this DREAMer (I am highlighting a typical example but there are many other people discussing similar cases), whose parents were already in the United States illegally, paid an undisclosed sum of money to an American visa holder, who applied to add him to his visa using a fictitious name and documents.  Then he traveled to the US and since he was a child, no fingerprints or photographs were taken.  Upon arrival, he simply reverted to his actual identity.  In his DACA application, since the US Government had no way to check this, he simply declared that he entered without inspection, and what I found interesting is that he listed the Place of Last Entry into the U.S. as Washington, District of Columbia.  After the typical four-month period, he was approved without any questions.

Please click on the images below to read how the applicant's story:

Click to read story of DREAMer
 
You will need to click on the image below to see what he actually did and an update on his approval:
 
Click to view approval of a DREAMer with false documents to enter the US


So how did the USCIS approve him?  Well, as some of the USCIS union members have been pointing out, the agency is in a mess and there is tremendous pressure on them to rubber stamp immigration applications.  So, they really are not checking things very well.  To somehow claim that you entered the United States in Washington, DC (I even read of people listing Miami) without inspection is unusual (most people tend to enter through the land border with Mexico), but looks like the adjudicating officers are under too much pressure to approve applications because of the workload.

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RPI visa approvals will be easy:  Keeping this spirit of rubber stamping almost all the applications will continue because in the Comprehensive Immigration Reform there is a provision that an immigrant can simply submit an affidavit rather than provide any documentation.  So unless an alien has a valid document that supports her case, she can simply file an affidavit by her or others to build her case, and if the Reagan amnesty is any indicator, many people will be selling affidavits for a price.  Imagine 11 million applications in the pipeline with Congress always cutting the government budget!  Looks as if getting approvals will be a breeze, particularly because there are not going to be any interviews, where it is easy to get caught.

Are there risks?  While the USCIS may be careless or deliberately look the other way or be incompetent, it is important to remember that use of fake documents is a serious crime.  In addition, when you sign an immigration petition, if you lie, you will be committing fraud and perjury, both serious crimes as well (though, the new law makes it clear that there will be penalty and no one is going to prosecute you because there just aren't enough prosecutors to prosecute immigration fraud).  So despite the fact that USCIS is approving cases without checking, you must understand your risks, though, it seems that all these applications are being filed with the help of attorneys.

How to prepare for DACA interview?

Tammy writes, "I entered without inspection from the border with Mexico at age 4.  I filed for deferred action on Oct 17, 2012 and went for my biometrics appointment on November 20. I provided evidence like school records, medical records, bank statements, church letters, gym records. I do not have a criminal record, I have never been in trouble in any way. All the papers of course were 100% legit.  My whole packet was pretty extensive, maybe a good two inches thick. The only thing, was that I was in Mexico my 7th and 8th grades, but this was way before 2007 and I was still a minor. But I had to be honest about it when I had to list all my addresses since my arrival.  Other than that, maybe because I was advised to put "undetermined" for my income/expenses since I don't have a paying job. I help my mom with housekeeping but she is the one who gets paid cash. So it's really hard to put down a salary/income since I technically don't have one. I recently received a letter to attend an interview. I don't know why I am being interviewed... I also don't know what to expect? Do you know anything about DACA interviews?  Would you think my two years in Mexico is what caused for the agent to call me for an interview?  I am quite sure my parents are not keeping anything from me. I've never been deported or anything.  If they don't approve my case for whatever reason, would they be able to take me into custody and deport me at the spot? My family is also concerned about me being deported and what would happen to them.  Would they be deported also, more specifically, would ICE be able to knock on my door and take them?  Please help."

Why is DACA ordering DREAMers to interviews:  You might have been picked at random for an interview as part of a quality control program (I am a bit concerned, though, that it took so long for your application because, if you are telling the truth that yours is a straightforward case, these are approved in about 3 months and then without getting an RFE you have been asked to go to an interview).  Also, while you may think that your case is genuine and all your paperwork is authentic, maybe there is something in your application that makes the officer think that it is fraudulent, or something does not add up and looks suspicious.  A very remote possibility is that someone with your name and/or background is wanted for a crime and they just want to make sure that it is not you.

How can a DREAMer get ready for DACA interview?   So this is what you should do (particularly if your attorney is not coming with you, though, I would advise that you should get a lawyer because it will be worth it):

  1. Relax.  If you have done nothing wrong, there is nothing to fear.
  2. Review your DACA application package and be prepared to answer each and every question.  The officer can ask you anything related to the application.  I also want you to review your application for mistakes.  Sometimes we all can mess up dates and numbers.
  3. Bring originals of all the documents that you have submitted.
  4. Be on time.  Dress professionally and treat the officer respectfully.  Do what you are told.  Do not bring electronics (and definitely no weapons) to the Federal building.
  5. DO NOT lie.  I repeat, regardless of what anyone is telling you now, tell 100% of the truth, because nothing is worse than lying under oath to a Federal officer, particularly if you are undocumented.  You will get into more trouble if you are caught lying than for breaking the law.
  6. Make sure that you follow the instructions in the letter for the interview, so if they have asked for something, bring it along.
  7. You will have to clarify that your mother is the one who pays all the bills but if you did not indicate that you had any expenses, it is a good idea to type on a sheet of paper what your expenses are, for example, cell phone bill, share of your house rent/mortgage, meals, school, etc.


Inaccurate information about DREAMers:   Is there a possibility that your family has not told you the whole truth?  There have been instances of parents not sharing all the details, either because they did not think it was necessary to tell the kids, or that they did not know English and threw the letter in the trash, or did not fully realize the implications, for example, of simply declaring that their undocumented child was actually a US citizen.  There are stories of how the parents completely ignored deportation orders and even threw away the paperwork or changed names (it is not enough to deny your case but if you did not disclose this, that would be a problem).

Worst case scenario:   At this point you have no choice but to deal with the interview. The worst that can happen is a denial but if there was no fraud involved and no criminal record, USCIS will most likely leave you alone for the time being.   In any case, if your application is denied, as are hundreds of DACA cases denied, most likely you will get a letter in the mail and nothing else will happen.  Right now, the government is focusing on deporting only people with criminal backgrounds so if you and your family are clean, nothing is likely to happen to them.  Unless you or your family members are wanted for a crime, you will not be arrested and deported.

The point to note, though, is that an undocumented person can be arrested and deported at any time, legally speaking, but just being called for an interview does not increase that probability.  No one is aware of what to expect during a DACA interview but it is no different than any other immigration case interview at the USCIS offices.  So just to prepare, you will be in front of an officer on a desk in an office or cubicle, you will swear to tell the truth, and then all you have to do is just answer all the posed questions truthfully.  Remember that you have to assume that the USCIS knows everything about you because using all sorts of records they can find out things about you that you might not expect.  Most likely you will not be given a decision on the spot and will have to wait for a letter to arrive later.

Avoiding arrest and deportation before RPI status

While DACA approved DREAMers will be protected from arrest for being in the USA illegally, the good news is all those of you who have not applied for DACA but are waiting to apply for RPI status directly, there is nothing to fear.  There is a provision in the law that if a law enforcement officer inquires your immigration status all you have to declare is that you are eligible for RPI.  There is no need to show any documents that proves that you have even applied for legalization.  You will not be arrested or deported as long as you make this claim.  If you are still arrested, you can actually sue the Government and get a free attorney because this is against the law.  Obviously, it is important to understand that this is only for immigration violations and not for other laws that you break.

Crossing immigration checkpoints in DACA

For those of you who live in the border stats, you must be familiar with immigration checkpoints.  The US laws allow Border Patrol to check immigration status within 100 miles from the border.  Accordingly, DACA approved DREAMers should always carry their EAD card and present it to the officer as proof of their status in the United Status.  A document from the USCIS that your application is pending maybe accepted by an agent out of kindness but is actually a confirmation of your undocumented status.  Those of you whose applications are not yet approved should avoid check points.  Whether approved or not, needless to say, you should never cross the border.  Only DACA approved DREAMers with a valid advance parole document are allowed to re-enter the country.

How to exploit waivers for ineligibility situations?

If you are depressed that you maybe ineligible for adjusting your status to RPI because you came after the cutoff date or lack the evidence to demonstrate continuous presence or you have way too many felonies or misdemeanor convictions or you used fake papers to enter the United States or you ended up making a false claim to American citizenship.  Don't just self deport because there is hope, through a sleepy provision in the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 (BSEOIM).  In the law there are loopholes that are designed to help undocumented aliens who are not technically ineligible but still will be able to legalize.  

How does this work?  The law gives the Secretary of Department of Homeland Security the power to declare that one or even all the requirements of eligibility be waived on a case by case basis.  These are waivers not just for deported aliens to return if they have family members in the United States but waivers related to almost all the requirements including dates or lack of evidence or criminal convictions.  What you will require is an excellent immigration lawyer because based on your situation, a compelling case will need to be developed playing on family ties or persecution overseas (hey, that is how the Boston terrorists got American citizenship) or religious freedom (these are cases that win almost every time particularly if you cook up a story about being a Christian who will not be able to practice the faith elsewhere). The law permits the DHS Secretary to approve these waivers without any objections from anyone -- and who will be watching?  The politicians in Washington will move on to the next fight very quickly. 


 

Undocumented aliens will do just fine even after CIR is law:  Another hope for you is that you maybe able to live and work like the past because American employers are addicted to cheap labor.  The US economy cannot function if the wages go up and businesses will go bankrupt if they were to hire people on market wages because their business model is built around exploitation of unauthorized workers.  Most experts expect that as soon as their employees become legal they will be fired because even if these folks do not demand higher wages and/or benefits, the employer will need to pay Social Security and Medicare taxes (FICA), for which they simply do not have room in their cost structure.  Almost immediately, these employers will be lining up to find new unauthorized workers.  The truth is that eVerify or whatever else the politicians talk about are nothing but buzzwords because the US Government, Democrat or Republican, has no desire to control the actions of so-called small business owners and farmers, who have very powerful lobbies.

Blue Card for DREAMers working on farms

There is less talk of DREAMers (an immigrant brought to the United States before 16th birthday) who are farmworkers because they are not out there telling passionate stories of going to college or joining the Military, but it is estimated that at least 40% of DREAMers work on farms.  The great news in the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 (BSEOIM) is that DREAMers who work on farms but are not eligible to apply as regular DREAMers maybe able to apply as farm workers, and thus, get the so-called Blue Card valid for 8 years, after which if you have worked on a farm for just 100 days each year, you get the green card.  It gets better: after just two years of having the green card, you get to apply for naturalization as a US citizen.


 

Am I eligible for the Blue Card?  Have you done agriculture work in the US for a minimum of 575 hours or 100 work days (a day is 5.75 hours of work) in at least 2011 and 2012 (if you have more than that, even better)?  That is not a lot of time, some of you who worked on a farm part time maybe eligible to meet this requirement.  Remember, felonies are not acceptable, and since three misdemeanors are allowed, even DUI is fine.  Also, because of a loophole, Congress does not care if you paid income taxes to IRS or not.

How to file a Blue Card application?  You will need the usual documentation, but the most important piece of evidence will be about the time that you have spent working on a farm.  If you do not have enough hours, like the Reagan Amnesty when many farmers were selling fake documents, it will happen again, so discuss this with your attorney.  Apparently, Congress does not seem to care about this because there will be no interviews to confirm if you actually worked on a farm or not.

How much back taxes to get RPI status?

While the Gang of Eight senators keep talking about undocumented immigrants having to pay assessed taxes before getting approved for Registered Provisional Immigrant (RPI) legal status, the great news in the Obama Immigration Reform bill is that most likely you will not need to pay any back taxes.  The reason the politicians are making a big deal about back taxes is that it helps in selling the bill to the American public, but if you read the bill carefully, while there is talk of payment of assessed taxes, the way the law is written, you may not owe even a penny to Uncle Sam.  It would not be surprising that if you have your paperwork in order, United States Internal Revenue Service (IRS) might even give you a huge refund.

So how come you will not need to pay any taxes?  
  1. If you have filed a tax return, whether using an ITIN or valid Social Security number or even fraudulent SSN (as long as you have a record of it because you cannot get a record from the IRS for a SS# that legally does not belong to you), and if the IRS has never told you that you owe any more taxes, and you have never been audited, you have basically paid all your taxes to the IRS and owe nothing more.
  2. If you have been working illegally and getting paid in cash or personal checks under the table, it means that your employer has not reported your earnings to the IRS.  In other words, for all practical purposes, you might not have worked at all because there is no record of it.  While the law says that you should pay taxes in cases like this, apparently no one can be caught.


     
  3. To prove your continuous presence requirement, the USCIS will accept W-2 forms and other documents from your employer that you have worked.  Some of these documents may declare your wages.  The great news for you is that the law does not require Department of Homeland Security (DHS) to share this information with the IRS, so as long as IRS specifically does not tell the USCIS that you owe taxes (that can only happen if you got a bill from the IRS and you did not pay it back), the USCIS cannot force you to pay taxes.  Why would this be so?  Well, if the DHS forces you to pay back taxes, it means that your employer who paid you will also owe back taxes for Social Security and Medicare, and the business lobby is so powerful, that no politician wants to annoy them.  Telling employers to pay back taxes will be political suicide and that is why US employers are immune from prosecution related to employing unauthorized labor.
  4. If you have been working under fake name(s) and still manage to meet all the requirements of RPI, the USCIS and IRS have no way to find out how much money you made.
  5. The number of job cuts at the IRS have been so severe that it basically has no staff left to enforce US tax laws.  Thanks to Republican policies, the IRS agents are very few in numbers and overworked that the last thing they want to do is to go after undocumented immigrants with incomes mostly below $30,000 a year.
  6. The senators have previously discussed that the cost of developing a system to accurately estimate the income of an undocumented alien will be so high that it would not justify its creation because the tax collected will be very low due to their low incomes.
The conclusion is that if you work with a good lawyer and accountant, you might not have to pay any taxes at all, and on the contrary, you might be able to apply for getting a refund.  Wouldn't that be a nice cash gift from the government along with legalization?