Brian Lerner

DACA Has Ended. Now What?

Question: I know DACA has ended. What can I do?

Answer: There are actually different categories as the current policy stands. It is important at the present time to know which category you are under so that you can take the appropriate action. On September 5, 2017, President Trump announced that the Deferred Action for Childhood Arrivals (DACA) program will be ending. This impacts almost 800,000 young people who entered the U.S. before age 16 who had temporary protection from deportation and work authorization.

Category “A”: You Do Not Have DACA or a DACA Application Pending. You cannot apply. The program has been terminated and new applications are no longer being accepted by USCIS. However, there might be other options for you such as a Request for Prosecutorial Discretion.

Category “B”: You Have DACA that expires on or Before March 5, 2018. If you have DACA and a work permit that expires on or before March 5, 2018, you can apply for a 2-year renewal, but your application must be received on or before October 5, 2017. This is a very strict deadline and if you do not get the renewal in by that time, you will have lost the 2-year extension.

Category “C”: You Have DACA that expires After March 5, 2018. If your DACA and work permit expire after March 5, 2018, you are not eligible for an extension and your DACA, work authorization, and protection from deportation will expire on the date shown on your DACA approval notice and work permit.

You should use this time to speak with an Immigration Attorney in order to determine other types of relief under Immigration Law that you can apply.

Category “D”: You have a DACA application pending, but not approved. If you have a DACA application that was received at USCIS on or before September 5, 2017, your application will continue to be processed. Hopefully, it was properly prepared and submitted.

If not, then you might want to have it supplemented with the proper evidence and documents.

Category “E”: You have DACA and a valid advance parole travel document. If you have DACA and have a currently valid advance parole document, you may still use the document to travel and return to the U.S. as long as you return BEFORE the document expires. However, even with a valid travel document, CBP can still refuse to let you in. Before you travel, speak to a qualified immigration lawyer. Trump can snap his fingers and end all if he wants, so it is a bit risky.

Category “F”: You have an advance parole travel document application pending. USCIS will no longer process or approve applications for advance parole for DACA recipients. If you have an application for DACA-based advance parole pending as of September 5, 2017, USCIS will close the application and return the filing fees to you.

Thus, there are several categories, so be sure you follow-up accordingly. Also, be sure you find other types of relief you might qualify for under the law.


Looks like DACA is going to END

Question: I’m on DACA and my friend is renewing DACA and another friend is going to apply for DACA. I have heard rumors about this. Should I be worried?

Answer: Yes, you should be worried. There have been various leaks from the White House. There have also been rumors that a number of White House officials, including former and current White House Chiefs of Staff Reince Priebus and John Kelly, President Trump's daughter Ivanka Trump, and Vice President Mike Pence, want the president to strike an ambitious deal with Congress that offers Dreamers protection in exchange for legislation that pays for the border wall, more detention facilities, legal immigration curbs, and the implementation of E-Verify.

This is atrocious that the President of the U.S. would seemingly use the DACA recepients as pawns to get a Wall built. Ironic that he wants to use as leverage a program that allows persons here illegally to stay here on an approved program in exchange for building a Wall supposedly used to keep people out from coming into the U.S.

Question: As of now, what are the requirements for DACA?

Answer: DACA or Dream Act or Dreamers or Deferred Action as it i s called has the following requirements:

To request Consideration of Deferred Action for Childhood Arrivals, you must meet the following DACA requirements: You were under the age of 31 as of June 15, 2012; You entered the United States prior to your 16th birthday and You have resided in the United States since June 15, 2007 and currently are present in the U.S..

Question: What happens if is ended?

Answer: That is unclear. It is unclear if you are already on DACA as to whether you will be able to continue until it terminates or upon the day Trump does not renew it; whether a renewal already in the pipeline will be able to continue; whether a person outside the U.S. on Advance Parole can re-enter the U.S. without a problem and a variety of other factors.

It is likely that there will be multiple lawsuits depending on the language of the termination of DACA and its provisions. There will be due process requirements and notice issues.

Question: Is there anything I can do?

Answer: Absolutely. There are many ways to fix status and ultimately become legal. While DACA was certainly a good program, it does not mean the other programs will disappear. DACA was issued through an executive order, and therefore can likewise be revoked. However, changing other areas of Immigration Law on a whim it not possible for the President.

Rather, it is Congress that must pass legislation to properly change Immigration. It is a much more complex process. At a minimum, you should see a qualified immigration attorney in order to get a detailed consultation on what other options exist for you.


Want an E-2 Visa? Look at these issues

Question: I want to open up my own company. Can you you let me know some specifics. For example, I have a friend from Iran. Can he get an E1 or E2? As for E-2’s, Iranians can apply for E-2's anywhere.

Question: Are there any restrictions where the money comes from for the investment?

Answer: Normally, not. However, keep in mind that there are two Russian Banks under US Sanctions. Thus, make sure money does not come from these banks.

Question: What percentage of ownership do I need to have in the company?

Answer: Make sure there is at least a 50% ownership by treaty countries. It is even better if there is a 51% ownership.

Question: What if I renounce my nationality?

Answer: If the principal owner renounces nationality, then the E-2 is gone.

Question: What if there is a merger or acquisition?

Answer: Sometimes merges and acquisitions changes the 50% ownership. If this is the case, then there will no longer be E-2 qualification.

Question: What about employees I need from my home country?

Answer: For employees coming over, you need to still make sure that the main investor gets an E2. The E-2 specialized knowledge employee will differ with the particular Consulate. Some require 2 years actual experience. The consular officer might say that he or she will give just 2 years and that an American is needed afterwards.

Question: What about my spouse and children in my home country?

Answer: An E-2 change of status for you which is approved, will NOT allow E-2 derivatives to get a visa at the consulate. Rather, you need to consulate process with your E-2.

Question: How long will I get?

Answer: E-2's always are now given for 2 years in US., even if the visa is issued for 5 years. However, you can go out 1 week before expiration of visa, and come back with 2 year stamp.

Question: Will the amount of the investment differ?

Answer: For normal business, you will need to look Where as to normality of investment (ie. California needs more than West Virginia). Consulates love Franchises. This is because the business plan is done, it works and the market prices are set. Thus, if your unsure what to invest in, look to a franchise.


‘My Husband beat me.’ Now it is possible to apply for Asylum.

Question: My husband beat me and I was afraid for my life, so I escaped to the United States. Can I applyfor something so I do not have to go back to my home country?

Answer: Yes, it may be possible to apply for gender based asylum. This is not your normal ‘political’ asylum, but rather, one based on ‘gender based immigration.’ This would be considered a social group.

Question: What is a ‘social group’ and how to define it?

Answer: There are several grounds in which you can apply for asylum. One of the grounds is if you are being persecuted because you are in a ‘social group’. You have to define an immutability characteristic. This is where a person cannot change OR it is so fundamental that the person should not have to change. The social group can be argued differently depending on the particular situation in which you are finding yourself.

For example, in the small amount of information you have given here, the social group might be married persons who are beat by their spouses and cannot get any governmental help. It is not easy to define social group and certain case law actually makes it more difficult. However, do not despair as it can certainly be done.

Question: What if I know somebody in question is not married, but still being beaten by her husband and has escaped to the U.S. Can she apply for this kind of asylum?

Answer: In this case, there is actually an unpublished case that allows this to go forward. However, even without this case, it is possible. You will have to define the social group differently. In this case, I can see some group similarly referencing women that are being beaten, but are in ‘common law’ marriages and/or who have kids that have suffered, etc.

Question: What if my country has laws against domestic violence? Will I not be able to apply?

Answer: Even if country has laws against domestic violence, you can show they are unable or unwilling to enforce it. This is purely a factual endeavour and must be elaborated on and built up during trial.

Question: Are there other issues that I should be aware of when trying to prove my case?

Answer:Internal Relocation is an issue. It is important to clearly document and show if government is going after you that there is nowhere to hide. If it is an individual that is going after you, then you must show how they will follow you.

Also, assuming you had to just pick up and go to escape the beatings, try to show loss of property, loss of livelihood, and whatever you left behind. Try to show the persecutor has a broader reach than just the local place upon which you are living.

Question: Are there any other similar related issues whereby somebody can file for gender based asylum?

Answer:Yes. An example would be child abuse. You would look for the social group such as were children are sold as property, or unable to leave of abusive parents, or sold as sex slaves. Another example, might be forced relationships and/or forced marriages. Additionally, you can see if the particular persecution violates religious views, or race issues. Other issues might be female genital mutilation, homosexuals, homosexual marriages, transgenders. Thus, as you can see, there are many examples of gender based asylum cases.


Opening up a New Office? Get an L-1

Question: Can I use an office based in my home and or garage for the L-1?

Answer: No. You must have an 'actual office'. The reality might be that you can run your business from a computer or your garage. However, for Immigration purposes, there must be a brick and mortar office and you must be paying rent.

Question: Do I have to sign a lease? What if I don’t get the L-1 or it is not approved?

Answer: You can do a lease where deposit made and you can make it contingent upon issuance of the visa. Therefore, if denied, you would get the deposit back and you would not have to pay months of rent without ever having the visa.

However, there is the issue of whether or not the landlord would accept this type of lease which is separate and apart from what is acceptable to US Immigration.

Question: Is it difficult to get an L-1 for a new office?

Answer: Yes, the reality is it is somewhat difficult. However, it can certainly be done. If you happen to have the option, however, to get an office that has more than one year of doing business, it would be easier to get approved.

Question: Can you give some pointers to help on the duties?

Answer: Well, one thing you must do is to distinguish between functional manager vs. area manager. Be sure to make clear if you are ‘managing’ the new office whether you are managing a ‘function’ of the office such as ‘all accounting’ or managing all the people in some fashion.

Question: Do I need a business plan?

Answer: Yes, normally you will need a 5 year business plan. However, if the new office is basically a branch of a successful business outside the U.S., you may not need to do the business plan, especially if the same type of business.

Question: What if I have no help in the U.S. to help get it started? How can I get things setup?

Answer: You can come on B1 to get the L-1 started.

Question: When should I say the new company will begin?

Answer: Do not pick a date certain as you will lose valuable time if it is approved afterwards. Pick when the petition is approved.

Question: What if I have had business operations for more than one year?

Answer: Then, you do not file the ‘new office L-1A’. You file a normal L-1A. Be sure to show how foreign company has control over the employee here (the manager or executive) and to show what staff in U.S. will support manager/executive in the U.S.. There is a good case called Matter of ZA -2013 in which you can use OVERSEES staff in determining whether position is managerial in the U.S.


Are you an Athlete?

Q: I am a body builder and just won a big amateur contest. Can I come and work in the U.S. on some type of visa?

A: Yes, there is what is known as the P Visa. The P-1A is for a Person who performs as an athlete, individually or as part of a group or team that is “internationally recognized”(P-1A), or a person who performs with or is an integral or essential part of an entertainment group that has been recognized internationally as being outstanding in the discipline for a sustained and substantial period of time (P-1B), and in the case of the performer, has had a sustained and substantial relationship with the group (ordinarily) over a period of at least one year.

P-1s have been expanded to include certain minor leaguers, amateurs or professionals: (1) an athlete, whether or not professional, who performs at an internationally recognized level of performance; (2) an amateur athlete or coach of sports teams in the U.S. that are members of a foreign league or association if (i) the foreign league or association is the highest level of amateur performance of that sport in that country; (ii) participation renders the athlete ineligible for U.S. scholarships under NCAA rules; and (iii) a significant number of the players in the league are drafted into major league teams or minor teams affiliated with them; or (3) a professional or amateur ice skater who performs individually or as part of a group theatrical production.

You should get an agent to sponsor you and one that can get a significant amount of events. We can try to get up to 5 years on the P1.

Question: What if I also want to apply for the Green Card?

Answer: The P Visa is one of the few visas that allows dual intent. This means that immigration cannot deny your case because you intend on getting residency.

Question: Who should I get to sponsor me?

Answer: It can actually be an agent. It does not have to be a company. An agent can book you for competitions, tours and appearances all over the country for the next 5 years. This is one of the very few visas that will allow a 5 year span of authorization to work under it. In fact, once the 5 years is up, you can then renew again for another 5 years.

Question: I have heard about the O-1 Visa. Should I try for that as well?

Answer: In actuality, the O-1 is much more difficult to obtain and the burden of proof is higher. As an athlete, the P Visa would be better. It has a longer authorization period, easier burden to prove, dual intent and the other factors I described already. Keep in mind that it is never easy to get a P Visa. However, as a talented athlete, the doors are open for you to take advantage of this particular visa.


The New H.R. 3003. What does it mean?

Judiciary Chairman Goodlatte stated that the bills will “enhance public safety,” they will do the just the opposite: undermine public safety and make it even harder for local law enforcement to protect their residents and communities. In addition, the bills which were made public less than a week before the vote and completely bypassed theJudiciary Committee, include provisions that will result in violations of due process and the Fourth and Tenth Amendments to the Constitution. This does seem to be the status-quo now when Bills are presented at the 11th hour for voting without oversight, review or comment.

At a time when over 9 out 10 Americans support immigration reform and legalization of the

undocumented, Republican leadership is asking the House to vote on enforcement-only bills that will lead to more apprehensions, deportations, and prosecutions of thousands of immigrants and their families who have strong ties to the United States. Instead of criminalizing and
scapegoating immigrants, Congress should be offering workable reforms that will strengthen our
economy and our country.

H.R. 3003 would undermine public safety and interfere with local policing. H.R. 3003 would amend 8 U.S.C. §1373 to prevent states or localities from establishing laws or policies that prohibit or “in any way” restrict compliance with or cooperation with federal immigration enforcement. The bill dramatically expands 8 U.S.C. §1373 which is more narrowly written and prohibits local law enforcement from restricting the sharing and exchange of\ information with federal authorities, but only with respect to an individual’s citizenship or immigration status.

Rather than empowering localities, the extremely broad wording of H.R. 3003 would strip localities of the ability to enact common-sense crime prevention policies that ensure victims of crime will seek protection and report crimes. The bill would also undermine public safety by prohibiting DHS from honoring criminal warrants of communities deemed “sanctuary cities” if the individual being sought by local law enforcement has a final order of removal.

In other words, people will become afraid to report crimes. While it might be reported that crime is going down, that is not the case. It would be because people are afraid if they report the crimes that they will be detained and deported. Thus, criminals will get away with committing crimes (particularly domestic violence) and the victim will remain quiet and in fear of calling the police.

Under H.R. 3003, localities that fail to comply with federal immigration efforts are penalized with the denial of federal funding for critical law enforcement, national security, drug treatment, and crime victim initiatives, including the State Criminal Alien Assistance Program (SCAAP), Community Oriented Policing Services (COPS), and Byrne JAG programs that provide hundreds of millions of dollars to localities nationwide.

Unfortunately, it is as though the administration believes there is nobody else out there committing crimes other than immigrants. It would be in the best interest of the foreign national to see if you qualify for a Motion to Reopen or other form of relief before these types of laws take effect.


Get Ready! Prosecutorial discretions are being revoked.

Question: I was in Immigration Court about 2 years ago and had no relief. However, I did not have any crimes either and my attorney made a motion for prosecutorial discretion. However, last week, I was arrested for DUI. I did not even have to plea as the case was dismissed. There was no evidence and I have no conviction. However, the arrest prompted ICE to revoke my Prosecutorial Discretion. What happens now?

Answer: Under U.S. immigration law, prosecutorial discretion (PD) refers to the power that ICE has to discontinue working on a deportation case. ICE can exercise its PD in many different ways. For example, ICE can join you in asking an immigration judge to close your case. Prosecutorial discretion used to be under Obama one of the most important aspects of Immigration Law. Immigration Prosecutors can choose not to prosecute a crime for which someone is arrested. They can decide to pursue less serious charges. They can basically decide not to issue the Notice to Appear and begin Removal Proceedings.

However, under Trump, this has changed. Prosecutorial Discretion is all but dead. It is very rarely being issued. There are, of course, situations where it is still merited, but nothing like before. Additionally, ICE is revoking grants of PD left and right. Therefore, it becomes necessary for you to know your rights.

1. You do not have to sign a voluntary deportation;
2. You can fight your case in front of the Immigration Judge; and
3. You can still get detained;
4. You can make a motion to get bonded out.

Therefore, you will note that ICE officials in many cases will not tell you the truth and will lie about what you can and cannot do. You MUST know that you can fight your case and the fact that the Prosecutorial Discretion was denied and/or revoked is no reason to give up. It just means you must fight your case now.

Question: But how can I fight? What should I do?

Answer: First, get a qualified Immigration Attorney. Each case is different. This means that depending on your situation, the particular forms of relief will be different. We might be able to apply for Cancellation of Removal or Adjustment of Status, or Waivers of a variety of different kinds, or Asylum, Withholding of Removal, Convention Against Torture or a number of other forms of relief. What is important is that you can fight your case. Simply because Trump has decided to issue orders revoking Prosecutorial Discretion does not mean your path has ended.

Immigration Attorneys across the country are fighting every order that Trump makes. He cannot simply make the Immigration and Nationality Act disappear, or the Code of Federal Regulations, or the Policy Memos or the Foreign Affairs Manual. We are a country of Laws and one man, even if President of the U.S., cannot simply dictate and make all of that disappear.

We are fighting one case at a time and ultimately, we will prevail and the tides will turn. Trump is already seeing through his Muslim Ban, that he cannot simply sign a paper and think it becomes law.


Can I get back after a deportation order?

Question: I committed a crime and was deported from the United States about 3 years ago. I’m wondering if I can get back to the United States? There are those that are encouraging me to come illegally to the US as I will never be able to return to the United States.
Answer: There are several parts to this question. First of all, it is possible to get back legally to the United States. However, there are several different factors here. First of all, I would need to know about what type of crime you committed. Some crimes have waivers. Some do not. Some are aggravated felonies. Each particular kind of crime gives me information as to how I can help you and what can be done. For example, if it were classified as an aggravated felon, I might determine whether you had a jury trial or whether you plead guilty or nolo contendre. 
I might then determine whether you were properly advised of your immigration consequences and whether you knowingly made a guilty plea or not. We might be able to then do a motion to vacate or reduce the judgement so that you are not considered to be an aggravated felon. Afterwards, I might be able to make the necessary motion to reopen or various other motions to vacate a prior immigration or deportation order (since the crime leading to the deportation might have disappeared.)
Alternatively, I might determine you are not an aggravated felon, and therefore, do not need to do criminal relief and/or vacate the crime. Rather, I would determine if the particular crime allowed for a Waiver of that crime and if you had a qualifying relative. If so, then we could get the Waiver prepared along with the various petitions to get you back to the US. 
Finally, I might determine that you are not inadmissible on the crime and no Waiver is needed. 
Question: How about the prior deportation order? What can be done?
Answer: Again, some of the actual procedures will differ depending on the actual case and what needs to be done. However, there have what is known as a Permission for Re-entry to the US This is an entire application upon which will have a legal brief, declaration, affidavit and other types of evidence. If approved, then the deportation bar will basically disappear. Normally, you would be given a 10 year bar to not being able to return to the US. This has nothing to do with the crime or Waivers. Rather, it has to do with the actual deportation order itself. Thus, if the Permission to Reapply is granted, the 10 year deportation bar is removed and you are permitted to come legally back to the US (with the proper petitions) even though you had a deportation order.
Thus, there is no reason to await for 10 years before you start the process. In fact, you can actually start the Permission to Reenter a day after you are deported. You can even start it while you are still in the country with a deportation order. 
Question: So, after that I can just return?
Answer: Still yet, it is not that easy. Once the Permission to Reenter is made and approved and any Waivers of Inadmissibility are done and completed, there must be a visa petition upon which you qualify to come back to the U.S. Thus, in most cases, there are three separate petitions needed in order to eventually come back. However, if done properly, all three could take as little as about 1 ½ years instead of the 10 or 20 years.

Provisional Waiver available even with Deportation Order

Question: I have heard that the provisional waivers have expanded. I have a prior deportation order and have been so afraid to have my spouse petition me because I thought I could not file a provisional waiver inside the US. I thought I would have to leave the US and ‘hope’ that the waiver was approved. Is it true that this has changed?

Answer: Yes, the applicability of the provisional waiver has been expanded. Remember, that the provisional waiver would apply only in the case where you normally would not have been inadmissible on any other grounds other than unlawful presence in the US. It allows you to file here in the US while you are here in the US. If successful, then it would mean you would actually only have to leave under normal circumstances to the US Consulate for only a few days and then you would return as a lawful permanent resident.

The Department of homeland security (or DHS) had adopted changes discussed in the proposed rule. The new modifications include: (1) Clarifying that all individuals seeking provisional waivers, including those in removal proceedings before the Executive Office for Immigration Review (EOIR), must file applications or provisional waivers with USCIS.

(2) Allowing individuals to apply for provisional waivers even if USCIS has a reason to believe that they may be subject to other grounds of inadmissibility.

(3) Eliminating the proposed temporal limitations that would have restricted eligibility for provisional waivers based on DOS visa interview scheduling.

(4) Allowing individuals with final orders of removal, exclusion, or deportation to be eligible for provisional waivers provided that they have already applied for, and USCIS has approved,
an Application for Permission to Reapply for Admission into the United States After Deportation or Removal Form I–212 and

(5) Clarifying that DHS must have actually reinstated a removal, deportation, or exclusion order in order for an individual who has returned to the United States unlawfully after removal to be ineligible for a provisional waiver on that basis.

So it is a very positive development. If you have a prior deportation order and have filed the Permission to Re-enter AND it is approved, then you will be eligible to file the Provisional Waiver. This development is surprising considering the increased efforts of ICE to deport as many people as it can and to restrict opportunities to people who are not here in the US legally.

Question: I’m not 100% sure if I qualify and/or if I have a deportation order. What should I do?

Answer: It would be very important for you to obtain the advice from a qualified immigration attorney as to whether you have or do not have a deportation order and whether you should or should not file a Permission to Re-enter and then at what point you would become eligible to file for the provisional waiver.

Question: How long will this take?

Answer: The Permission to Re-enter will take about 1 year and the Provisional Waiver will take another 6 months.

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