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For the travel bans, airports are just the beginning....

Refugees and other foreign nationals at airports have understandably drawn the attention of those opposed to President Trump's travel bans. The real effect of those bans, however, extends well beyond the airports. Also, the full extent of the orders has yet to be determined. This means that for those opposed to the bans, the fight has just begun.

Please note, a comprehensive discussion of the January 27 order is in an earlier blog post here.

First, remember, the vast majority of those harmed by the executive order will not even make it to a U.S. airport. Instead, they will be denied entry documents or not be permitted to board a flight to the United States.

Moreover, the full extent of the bans is still unknown because of how the order is written. They could be relatively short term but have the potential to extend indefinitely. The order contains room to create large exceptions, but also the opportunity for expansion.

The bans could end in months- or be extended indefinitely.

Except for the indefinite ban on Syrian refugees, the travel bans are temporary but could easily be extended. The entry ban for nationals of Syria, Iran, Iraq, Somalia, Sudan, Yemen, and Libya technically is for ninety days. The ninety-day window is to reduce the burden on government agencies responsible for reporting to the President about necessary security measures to ensure foreign nationals are not a security threat and identify countries which do not provide the necessary information.

If the agencies are not able to make sufficient progress in ninety days, therefore, the ban can easily be extended. What is sufficient progress? What measures will there be? How long will it take to complete this process? Keep in mind strict security measures for entry into the United States are already in place. There are no clear metrics, providing an easy justification to extend the ban.

The ban on refugee admissions is at least for 120 days, at which point only refugees from those countries with government agencies have deemed there are adequate security and identification safeguards. Again, while this sounds reasonable initially, refugees already face rigorous vetting. Without clear metrics, the refugee ban could easily extend beyond 120 days, especially for those fleeing the most dangerous conditions.

More countries may be added

In addition to the seven countries already listed in the travel ban, the order requires the Secretary of State or Homeland Security to identify, within 60 days, any others which they deem insufficiently cooperative in identity and security investigation. Moreover, the agencies can add more countries after 60 days if they find the need arises.

As discussed above, the security and identity concerns raised in the memo are already part of the vetting process, and there are no metrics for determining compliance. Therefore, the order could readily be applied to bar admission to nationals of many more countries.

Exceptions in the "national interest"

Even now, the order may be limited by establishing exceptions in the national interest. While the legality of many aspects of the order is questionable, the legal basis for the bans is a law which allows the president to deny entry to foreign nationals who would be "detrimental to the interests of the United States." Therefore, entry is permitted on an individual basis upon demonstration it is in the national interest.

In fact, "national interest" has already limited the application of the order. Initially, the travel ban extended to lawful permanent residents of the 7 named countries. That ban was quickly lifted, however, upon a finding that admitting lawful permanent residents was in the "national interest". (That it was almost certainly illegal to ban lawful permanent residents probably also had something to do with it.)

Though it is a small exception now, the "national interest" has no concrete definition and could be a tool to exempt even more people from the order.

Bean + Lloyd wholeheartedly supports, and has taken part in, efforts to help refugees and others facing travel bans at airports. The need to fight the bans, however, will extend well beyond the airports.

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Donald Trump Issues Executive Order Suspending Refugee Program and Entry to US from Certain Countries

On January 27, 2017, Donald Trump issued an executive order regarding immigration and national security. The order temporarily halts all entries of noncitizens from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen into the United States for 90 days. The government will then develop new permanent policies that may prohibit individuals from certain countries from entering the United States; however, as of now, it is unclear exactly what these policies will look like and which countries they will affect.

For now, non-citizens from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen-even those with permanent residency or valid visas-should not travel outside the United States, or they will not be permitted to return for a minimum of 90 days. Because there are some narrow exceptions to this order, individuals from these countries who have an urgent need to travel outside the United States should consult with an immigration attorney prior to their departure.

The executive order also stops the admission of Syrian refugees indefinitely, until the President determines that it is in the national interest to allow Syrian refugees to enter the country again. In addition, President Trump has suspended the US refugee program for all countries for 120 days. After the 120 day period, the US will only resume accepting refugees from countries that the government deems sufficiently safe.

Again, these orders have some narrow exceptions. Notably, individuals who fear religious-based persecution in countries where their religion is the minority will receive special preference and may still be able to enter the United States as a refugee even during the suspension period. Individuals who think this exception may apply to them should consult with an immigration attorney.

The President is expected to release more immigration executive actions in the coming days. In the meantime, immigrants worried about increased ICE enforcement can prepare to defend themselves now by creating an immigration file. Learn more here (English) and here (Spanish).

Bean + Lloyd, LLP is an immigration law firm in Oakland, California, emphasizing family-based immigration, removal defense, and naturalization.

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Prepárese ahora para defenderse de su futuro Inmigratorio

Inmigrantes preocupados por el aumento de ICE por la ejecución bajo Trump pueden prepararse para defenderse ahora comenzando un archivo de inmigración. Obteniendo información y documentos vitales ahorrará tiempo si usted es detenido, y le permitirá que un abogado de inmigración lo represente de manera más eficiente y eficazmente. (Nota, esto se enfoca en la preparación de casos de inmigración, el Centro de Recursos Legales para Inmigrantes tiene un guía útil con sus derechos legales y sugerencias de día a día para asuntos cotidianos si un extranjero nacional es detenido.)

Un desafío enorme en asistir a unas personas detenida por ICE es que los miembros de la familia que buscan ayuda en su nombre a menudo no saben toda la información necesaria para evaluar el caso directamente. Del mismo modo, pueden no ser capaces de obtener documentos esenciales para su defensa. Esto puede significar que el ser querido pasa más tiempo en detención o tiene una defensa más débil.

Por lo tanto, si usted está preocupado por ser detenido por ICE, usted debe comenzar a colectar información y documentos ahora, y ponerlos en un archivo donde su ser querido puede acceder por si usted es detenido. Además, recomiendo que se memorizar el número de teléfono celular de alguien que sabe dónde están los papeles y que le permita encontrar un abogado para usted. Si usted está detenido, es posible que no tenga acceso a los contactos de su teléfono, es por esto que tendrá que saberse el número.

Su archivo de inmigración debe de incluir lo siguiente:

1. Historia de Inmigración - Esto será vital para cualquier evaluación de inmigración.

a. Información: Cuando usted vino a los U.S.? ¿Usted alguna ves se fue? ¿Usted alguna vez tuvo contacto con las autoridades de inmigración? ¿Alguien ha sometido una petición de visa para usted o algún miembro de su familia cercana?

b. Documentos: Cualquier tipo de documento que tenga en relación con inmigración

2. Familia - Sus lazos familiares pueden hacerle elegible para beneficios de inmigración o ser una razón fuerte para argumentar que debe ser puesto en libertad

a. Información - Nombres y estatus migratorio de sus padres, cónyuge e hijos

b. Documentos - partidas de nacimientos, actas de matrimonios, copias de identificaciones de inmigración (permiso de trabajo, tarjeta de residencia, etc.)

3. Historia Criminal - Su historia criminal determinar si usted es elegible para cualquier defensa o liberación en fianza.

a. Información - Un resumen, incluyendo fechas y disposición de todas las detenciones.

b. Documentos - corte judicial y disposición de todos los arrestos

4. Temor de regresar a su país de origen - si usted tiene temor de regresar a su país de origen, esto es muy impórtate presentarlo a las autoridades de inmigración.

a. Información - Una breve explicación de por qué tienes miedo de volver. ¿Quién te haría daño? ¿por qué? ¿Alguna vez le hicieron daño en su país de origen?

b. Documentos - Si está disponible, cualquier informe médico o policial sobre incidentes de daño en su país de origen. Si no tiene estos documentos, consideré tener a alguien en su país de origen para que se los envié a usted ahora.

5. Trabajo /Impuestos - Su trabajo y una historia de pago de impuestos muestran vínculos con los Estados Unidos y buen carácter moral.

a. Información - su historial de trabajo durante los últimos 10 años, y si usted ha pagado impuestos

b. Documentos - Impuestos, solamente federales, preferible por los últimos 10 anos.

Una vez más, esto es sólo un comienzo, y no una lista completa. Si está detenido, es probable que su abogado necesite más información y documentos, pero estos materiales serán muy útiles para proporcionar consejos concretos tan pronto como sea posible y también pueden fortalecer su caso.

También, mientras que la creación de este archivo puede ser aterrador, también vale la pena tener en cuenta que este archivo podría ser muy útil si usted es elegible para los beneficios de inmigración también. Los documentos y la información anterior serían vital no sólo para luchar contra su eliminación, sino también la preparación para cualquier tipo de solicitud de beneficios de inmigración, como el ajuste de status o TPS.

Bean & Lloyd, LLP es una firma de abogados de inmigración en Oakland, California, enfatizándose en casos inmigratorios para familias, defensa de deportación y naturalización.

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Prepare now for your future immigration defense

Immigrants worried about increased ICE enforcement under Trump can prepare to defend themselves now by beginning an immigration file.  Gathering vital information and documents now will save precious time if you are detained, and allow an immigration attorney to represent you more efficiently and effectively. (Note, this focuses on immigration case preparation, the Immigrant Legal Resource Center has a helpful guide with your legal rights and suggestions for day-to-day issues if a foreign national is detained.)

One huge challenge assisting people detained by ICE is that the family members looking for help on their behalf often do not know all the necessary information to evaluate the case right away. Similarly, they may not be able to get essential documents for their defense. This can mean the loved one spends more time in detention or has a weaker defense.

Therefore, if you are concerned about being detained by ICE, you should gather information and documents now, and put them in a file a loved one can access if you are detained. Also, I strongly recommend memorizing the cell phone number of someone who knows where the papers are and is permitted to find an attorney for you. If you are detained, you may not have access to the contacts in your phone, so will need to know the number.

Your immigration file should include the following:

1. Immigration history- this will be vital to any immigration evaluation.

a. Information: When did you come to the U.S.? Did you ever leave? Have you ever had contact with immigration authorities before? Has anyone ever filed a visa petition for you or an immediate family member?

b. Documents: Any immigration-related document you have.

2. Family- Your family ties may make you eligible for immigration benefits, or be a strong reason to argue you should be released.

a. Information- Names and immigration statuses of your parents, spouse, and children.

b. Documents- birth certificates, marriage certificates, copies of immigration identification (work permits, residency cards, etc.

3. Criminal history- Your criminal history may determine if you are eligible for any defenses or release on bond.

a. Information- a summary, including dates and dispositions of all arrests.

b. Documents- court complaint and disposition of all arrests.

4. Fear of return to your home country- if you are afraid to go back to your home country, it will be important to present this to immigration authorities

a. Information- a brief explanation of why you are afraid to go back. Who would harm you? Why? Were you ever harmed in your home country previously?

b. Documents- if available, any medical or police reports about incidents of harm in your home country.  If you do not have these documents, consider having somone in your home country send them to you now.

5. Work/taxes- your job and a history of tax payment make show ties to the U.S. and good moral character.

a. Information- your work history for the last 10 years, and whether you have paid taxes.

b. Documents- tax returns, federal only, ideally for the last ten years.

Again, this is just a start, and not a full list. If you are detained, your attorney will likely need more information and documents, but these materials will be very helpful in providing concrete advice as quickly as possible, and may also strengthen your case.

Also, while creating this file may be scary, it is also worth keeping in mind this file could be very helpful if you are eligible for immigration benefits as well. The documents and information above would be vital not only to fighting your removal, but also preparing for any sort of application for immigration benefits such as adjustment of status or TPS.

Bean + Lloyd, LLP is an immigration law firm in Oakland, California, emphasizing family-based immigration, removal defense, and naturalization.

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Rescinding NSEERS regulations- a small, but welcome, obstacle to Trump's plans

On December 23, the Obama administration will rescind the regulations implementing a registration system which would have likely been the base of Trump's "Muslim Registry". What does this mean?

Short version- This is a welcome step, but will likely not have a major effect on Trump's plans. this is largely symbolic, and probably won't have more practical effect than delaying a Trump registry.


Longer version- By most accounts, a " #MuslimRegistry " under Trump will technically be a registry of nationals from countries with large Muslim populations. Despite the controversy, this concept isn't new. In the early 2000's, there was a similar program called the National Security Entry-Exit Systems, also known as "NSEERS" or "Special Registration".

This program required men from several designated countries to present themselves to immigration officials. The system did not result in a single terror-related conviction, but did cause tremendous upheaval and fear in immigrant communities.

Creating such a large scale program requires the government to first promulgate implementing regulations- essentially rules created by the government in accordance with governing statutes. Regulations can be timely to create, and usually require a period of notice and comment before implementation. (As a side note, much of the state suit against DACA was based on an assertion that the government failed to follow these requirements.)

The regulations implementing NSEERS (which were actually issued in the 1990's for a smaller program) allowed the DHS to designate countries subject to registration without additional the regulatory process. For NSEERS, the program ended when agency removed all countries from the program requirements, but their implementing regulations remained in place.

Therefore, the Trump administration could have simply resumed the registration program by designating countries subject to those requirements almost immediately.
Rescinding the implementing regulations will not stop a registry, therefore, but the Trump administration will need to promulgate new ones in order to create a "Muslim registry".

These regulations should take at least several months to implement, and will be subject to notice and comment requirements. It is, therefore, likely a small victory creating some poignant symbolism, chances for advocacy and perhaps a short reprieve. It will not, however, prevent a new registry program by itself.

Bean + Lloyd, LLP is an immigration law firm in Oakland, California, emphasizing family-based immigration, removal defense, and naturalization.

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What can you do in response to Trump's immigration plans?

Trump's election has caused a tremendous amount of fear and concern for immigrants and their advocates. Though we will not know the full impact of his election until after he takes office, here are some initial predictions on key immigration issues and steps people can take now.

As you will see, the two suggestions have two basic themes. Immigrants should use the time before Trump takes office to protect themselves as much as possible- but also recognizing the risks they may face presenting themselves to immigration authorities. Citizens should be prepared to voice their support of immigrants to Congress and the media to not only protect the non-citizens, but those in the U.S. who benefit from them.

End of DACA/ end of the road for DAPA

Trump has pledged to end DACA when he takes office. As a program created by the President's executive authority, he is permitted to do this, and there is no reason to believe he will not. Also, while the court case for DAPA (deferred action for parents of citizens) is technically still pending, Trump will presumably stop that as well.

What can you do?

Those DACA beneficiaries able to extend their applications now should do so now. It is not clear what will happen if the extensions are still pending when Trump takes office, but it is possible that USCIS will expedite the review of the applications before the change, and those with pending applications are far more likely to get an extension than someone who waits.

That being said, even those with current DACA should be prepared for the program to potentially end with both the protection against deportation and work permits being cancelled. Also, those who are considering an initial filing should review with an attorney whether it is worth the risk of presenting yourself to immigration authorities given the uncertainty.

If DACA ends, hundreds of thousands of people will lose their jobs. This loss will be especially harsh if their work permits are suddenly cancelled. Not only will DACA beneficiaries be harmed, but so will their family members and their employers.

Trump was elected on a pro-business platform, and a mass layoff without little or no preparation time will undoubtedly hurt business. Businesses employing DACA beneficiaries should be prepared to tell their stories and increase pressure to not only prevent sudden layoffs, but perhaps even keep the program going for those who are already enrolled.

Mass deportations

Trump has stated he will promptly deport all of the approximately eleven million people in the U.S. illegally. Not only would this be horrible for the United States, it would be nearly impossible without major changes in the law. As President, Trump could not change the law himself, but he can push Congress to do so, and can alter how the existing laws are enforced.

Generally, the government cannot simply deport people who are here illegally, because they are entitled by law to defend themselves in immigration court. Right now, the immigration court system is very backlogged, with about 400,000 cases stretching dockets past 2019. Adding over ten million people to this system would of course make the backlog far longer, with hearings scheduled well after Trump's first (and perhaps only) term.

It is possible that Trump could order changes in the immigration court to speed this process up- adding new judges, creating summary proceedings- but even those alterations would be slow, and would still have to comply with the law.

As a separate matter, Trump would have to locate people who are here illegally. Some of them may be found through criminal proceedings or if they have filed for immigration benefits and been denied, but it will be nearly impossible for them to find others without constitutional violations.

To be clear, Trump certainly could increase deportation levels. Many of the steps he would need to do this, however, provide opportunities to fight back.

What can you do?

Immigrants who are here illegally but have options to regularize their status, should consider doing so right away. This strategy, however, does carry some risk as it would require notifying the government of their status and location. Being here unlawfully has its own risks, however, and it may take some time for Trump to implement his changes. This means that those who wait may lose the chance to apply for provisional waivers or other opportunities. Whether to apply for benefits or not will therefore be a decision based on the circumstances of your case, and should not be made lightly.

If you are a lawful permanent resident eligible to apply for citizenship, please do so. As a citizen, you will be protected completely from deportation, and may be able to provide benefits to family members. You will also be able to vote.

If you are not an immigrant, still stay informed, and contact your Congressional offices to voice your support for immigrant rights. As explained above, Trump's ability to implement mass deportations will require changes in the existing law- which can only be done by Congress.

Banning Muslims, refugees, and others from entry?

There are far fewer protections for non-citizens who are outside of the United States seeking admission. Therefore, Trump's threats to ban large numbers of people from entering the country will take far less help from Congress to implement. There are some limited protections for people outside the U.S., and it's not clear an outright ban on members of an entire religion would be legal, but the extent of his powers would likely be decided by a court.

Therefore, it will very likely be much harder for millions of people to enter the United States, though we will have to see what happens to know much more.

What can you do?

Those outside the U.S. considering applying for a visa should do so soon. By extension, family or businesses looking to bring someone into the country should also move quickly and/or consider options if the visas are denied, such as working or meeting outside the U.S.

When there are the inevitable unfair denials, it will be important for those in the U.S. who are impacted to be sure to make their voices heard. This will not only include family and would-be employers, but those who will lose money if fewer people are allowed in, such as hotels, restaurants, and travel companies.

While the legal protections for those outside this country are limited, the people and businesses in the U.S. who will also suffer will have powerful stories that will hopefully influence the government's policies.

It is almost certain that a Trump presidency will be harmful to immigrants and their supporters. Nonetheless, there is still a chance to protect the immigrant rights which will be under attack.

Bean + Lloyd, LLP is an immigration law firm in Oakland, California, emphasizing family-based immigration, removal defense, and naturalization.

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TPS for Guinea, Liberia, and Sierra Leone Ending on May 21, 2017: Explore Your Other Immigration Options Now

On September 22, 2016, the Department of Homeland Security ("DHS") announced that it would terminate Temporary Protected Status ("TPS") for individuals from Guinea, Liberia, and Sierra Leone on May 21, 2017. Now is a good time for individuals from these countries who currently have TPS to explore their immigration options before their TPS protection ends next May.

Why is TPS ending for people from Guinea, Liberia, and Sierra Leone?

Originally, TPS was granted to people from Guinea, Liberia, and Sierra Leone because of the outbreak of the Ebola virus in those countries. Since then, DHS has determined that Ebola virus transmission is no longer widespread, so it is ending TPS for those countries.

How does this affect people with TPS from these countries from now until May 21, 2017?

DHS has automatically extended TPS for Guinea, Liberia, and Sierra Leone for six months, meaning that, if you are from one of those countries and you currently have TPS, you will maintain that protection through May 20, 2017. Note, however, that if you become ineligible for TPS for another reason, you could still potentially lose your TPS before that date.

You will also automatically maintain your employment authorization through May 20, 2017, even if your current employment authorization document ("EAD") says it expires in November 2016. To continue working legally, you can show your EAD and a copy of the Federal Register notice for Guinea, Liberia, or Sierra Leone to your employer.

You do not need to file any application or pay any fee in order to maintain your TPS and employment authorization from now until May 20, 2017. On May 21, 2017, however, your TPS and employment authorization will terminate.

This announcement does NOT affect TPS for individuals from any other country.

Do people with TPS from these countries have other immigration options?

This announcement does not affect any other type of immigration status (such as lawful permanent residence, DACA, etc.) that an individual with TPS might also have. Therefore, if you are from Guinea, Liberia, or Sierra Leone and have TPS, but you also currently have another form of immigration status, this announcement will not affect your other immigration status.

For individuals from one of these three countries who only have TPS, now is a good time to meet with a lawyer to see if you might have another option to remain in the United States. Possibilities for other forms of immigration relief include asylum, valid marriages to United States citizens or Lawful Permanent Residents, having United States citizen or Lawful Permanent Resident relatives, having certain jobs in the United States, or having been a victim of a crime in the United States. It may also be possible to get a travel document from the United States government in order to travel abroad and lawfully reenter the United States, which may increase the types of immigration relief for which you are eligible.

Under the Obama administration's current immigration "enforcement priorities," you may not likely be an immediate target of immigration enforcement once your TPS terminates. However, depending on the outcome of the November 2016 presidential election, these enforcement priorities could change drastically by the time your TPS terminates in May 2017, which could significantly increase your risk of deportation. Because of this uncertainty, the safest option is to explore your immigration options now before any immigration policies change.

Bean + Lloyd, LLP is an immigration law firm in Oakland, California, emphasizing family-based immigration, removal defense, and naturalization.

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Expanded provisional waivers bring new opportunities- and dangers

USCIS announced a major expansion of its provisional waiver program for immigrant visa applicants beginning August 29th. The good news- many more people will be able to apply for provisional waivers. The bad news- the provisional waivers process will be riskier, especially for those who do not get proper legal advice.

Background- what is a provisional waiver?

We provided in-depth analysis of provisional waivers here, here, and here, but, briefly, provisional waivers reduce the risk and time abroad for many immigrant visa applicants.

Foreign nationals applying for lawful permanent residency who entered the U.S. unlawfully (and often those entered legally but failed to maintain lawful status) generally must leave the country to apply for an immigrant visa at a consulate. This can be risky because those who are not granted an immigrant visa will not be able to return to the U.S. unless their problems are resolved.

Increasing the challenge is that departing the U.S. after 6 months unlawful presence triggers a 3-year bar to admission, increasing to 10 years after 1 year of unlawful presence. This means that those who depart the U.S. to apply for residency must often contend with the so-called "3/10-year bar" to return. Thankfully, this bar is waivable if the foreign national demonstrates a lawful permanent resident or United States citizen spouse or parent will suffer "extreme hardship" if the applicant must stay outside the country. This can be a relatively high standard, and by no means are all waiver applications granted.

Before the provisional waiver process began in 2013, foreign nationals subject to the 3/10-year bar had to depart, and then apply for a waiver from outside the U.S. At a minimum, this required waiting abroad while the waiver applications were reviewed. Those whose waivers were denied, however, had to wait for ten years before returning to their families.

"Provisional waiver" applicants can apply for the waiver in the U.S. and stay in the country while it is pending. If the provisional waiver is granted, they depart the U.S. and apply for the immigrant visa at the consulate. As long as no other grounds of inadmissibility arise, it is a relatively smooth and low risk process.

If the waiver application is denied, DHS has said it will not initiate removal proceedings unless the applicant is considered an enforcement priority. This means that provisional waiver applicants who are denied can still remain with their families.

As will be discussed below, it is vital to remember that provisional waivers apply only to the 3/10-year bar. There are many other bars to admission which a provisional waiver will not address.

(Again, this is huge simplification provided for context, do not rely on this summary for your own legal strategy.)

THE GOOD- HOW IS THE PROGRAM EXPANDING?

The new changes expand the provisional waiver process in a several ways including:

1. Provisional waivers are available for any family-based, employment-based or diversity visa petitions. Originally, provisional waivers were only available to beneficiaries of visa petitions filed by the spouses and parents of United States citizens.

2. USCIS will no longer deny a provisional waiver application for "reason to believe" the applicant is subject to an additional ground of inadmissibility. To be clear, provisional waivers still only apply for the 3/10 year bar. If someone is found inadmissible on another ground the provisional waiver is void, and the applicant will have to file for a new waiver of inadmissibility, if one is available.

Originally, USCIS would deny a provisional waiver based on "reason to believe" another ground of inadmissibility applied. This meant that USCIS often denied provisional waivers even when there was strong evidence that no other bars applied. Now, however, USCIS will not deny waiver applications on this ground, and applicants will have to demonstrate they are not inadmissible only to the consulate and immigration inspectors.

3. Foreign nationals with a final removal order can now file for a provisional waiver if they first get an approved I 212 application for permission to apply for admission after a deportation. This means that people with unexecuted orders of removal who cannot reopen their cases may still be able to apply for lawful permanent residency with minimal time outside the U.S.

THE BAD- WHAT ARE THE RISKS WITH THE NEW RULES?

Overall, the expanded provisional waiver eligibility is a very good thing because, properly applied, many more foreign nationals will be able to apply for residency with much less risk and time abroad. That being said, the new rules present several risks, especially for those who are not properly advised.

1. A new President can change enforcement priorities. This is a concern with many programs, but it is vital to understand that ICE will currently refrain from enforcement against provisional waiver applicants because of their policies- not because they cannot. These policies, however, ultimately come from President Obama, and can be changed with a new administration in January, 2017. Therefore, this program could become much riskier if Trump is president, especially for those with removal orders.

2. More provisional waivers will be found invalid at consulates. Again, provisional waivers apply only to the 3/10-year bars for unlawful presence, not other bars for multiple entries, fraud, crimes, and other grounds. Because USCIS will not review whether other bars apply, they will approve provisional waivers for people subject to other grounds. This means that many will leave with approved provisional waivers only to find them useless at the consulate because they are subject to an additional ground of inadmissibility. Again, people in this situation will have to remain outside the U.S. unless their issues are resolved, if they can be.

3. The rules look like they cure illegal re-entry after removal- but don't. Those who illegally re-enter the U.S. after a removal, deportation or exclusion order can be placed in reinstatement proceedings- essentially enforcing the old order without new removal proceedings. The new indicate that being subject to reinstatement proceedings by itself does not prevent a provisional waiver unless the reinstatement process has actually begun.

This suggests that someone who entered the U.S. after a removal order can simply apply for a provisional waiver- but that would be wrong. There is a permanent bar to admission for those who entered the U.S. illegally after 4/1/1997 subsequent to a removal, deportation, or exclusion order. The new rules do not change this law. Therefore, the new rules only help those who illegally reentered after a deportation or exclusion order before 4/1/1997.

This misleading rule, combined with USCIS not reviewing for other bars when processing provisional waiver applications, means that it is very likely people will apply for a provisional waiver, be approved, and then face a permanent bar to return at the consulate.

Therefore, the new rules have the potential to truly help many people. Unfortunately, they also carry some very real risks that are not immediately clear. Those who apply on their own or through untrained document preparers are going to be especially vulnerable to unseen dangers.

Bean + Lloyd, LLP is an immigration law firm in Oakland, California, emphasizing family-based immigration, removal defense, and naturalization.

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TPS extended for El Salvador- must re-register by September 6, 2016

Temporary Protected Status ("TPS") for El Salvador has been extended for another 18 months through March 9, 2018. The filing window for extension applications has already begun, and will continue until September 6, 2016. People who timely apply for the TPS extension are also eligible for automatic extensions of their work permits until March, 2017.

Please note- the Salvadoran TPS extension generally only benefits those who already have the status since the original application period beginning in March, 2001. In rare cases, Salvadorans who have been here since February, 2001 but have been in a different status since February, 2001 may also be able to apply for TPS benefits.

In addition to employment authorization and protection against removal, TPS may provide a way for those married to United States citizens or permanent residents to file for residency with less risk than if they did not have TPS benefits. Therefore, we strongly urge anyone with current TPS status to be sure to file for an extension as soon as possible, and absolutely before the September 6, 2016 deadline.

Bean + Lloyd, LLP is an immigration law firm in Oakland, California, emphasizing family-based immigration, removal defense, and naturalization.

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New California Law Will Help Many Avoid Harsh Immigration Consequences Of Drug Possession.

Last week, Governor Jerry Brown signed a new California law giving certain immigrants the right to withdraw a former plea of guilty or nolo contendere (no contest) for possession of a controlled substance. To do so, defendants must prove that they successfully completed a deferred entry of judgment program and had their charges dismissed on or after January 1, 1997. They must also show that they will suffer the loss of certain benefits, such as immigration relief, because of the original plea. The law becomes effective January 1, 2016.

 

This is great news for non-citizens, including lawful permanent residents, because they often face many adverse immigration consequences when found convicted of drug possession. While these consequences require a much deeper discussion beyond the scope of this article, they generally include deportation, mandatory detention, and ineligibility for immigration benefits, such as adjustment of status.

 

Even though California's deferred entry of judgment program is designed to avoid a criminal conviction, eligible defendants must still plead guilty or nolo contendere to participate in the program. For immigration purposes, this plea nonetheless results in a criminal conviction because of how immigration law defines a conviction. Section 101(A) of the Immigration and Nationality Act provides:

 

The term 'conviction' means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.

 

This means that California's deferred entry of judgment program does not prevent a conviction for immigration purposes because the program requires a plea of guilty or nolo contendere, and participation in the program is easily interpreted as a form of punishment. However, thanks to this new law, which has been added to California's Penal Code section 1203.43, an immigrant can go back to court to withdraw the harmful plea so that the deferred entry of judgment program will no longer reflect as a drug possession conviction for immigration purposes.

 

While this new law will help many immigrants, they must still enter a plea of guilty or nolo contendere in the first place to be eligible for a deferred entry of judgment. Notably, on the same day he signed Assembly Bill 1352, Governor Brown vetoed Assembly Bill 1351, which would have eliminated the plea requirement altogether. As a result, immigrants will continue to be deportable or inadmissible for drug possession in California until they finish the deferred entry of judgment program and return to criminal court to withdraw their pleas.

 

If you believe you might benefit from this new law, which becomes effective January 1, 2016, you should consult with an experienced immigration attorney for a detailed review of your case. Bean + Lloyd LLP will be available for such consultations. Keep in mind that you will also likely need to consult with a criminal attorney who can help you prepare and file your request for a plea withdrawal.

 

Written by Sara Silvia Taylor. Ms. Taylor is an associate attorney at Bean + Lloyd LLP, an immigration law office in Oakland, California emphasizing family-based immigration, citizenship, removal defense, and deferred action.

 

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