Waiting on implementation of Obama’s executive action immigration reform

Last week President Obama announced his plans to take executive action related to the enforcement of immigration laws. Key in those announcements were:

  • Prioritizing the deportation of ‘felons over families’
  • Issuance of employment authorization to select individuals
  • Establishing a framework that would allow certain undocumented immigrants to remain in US without fear of deportation if they pass a criminal background check and pay taxes

Core Changes

The United States and Immigration Services website details the initiatives as follows:

  • Expanding the population eligible for the Deferred Action for Childhood Arrivals (DACA) program to young people who came to this country before turning 16 years old and have been present since January 1, 2010, and extending the period of DACA and work authorization from two years to three years
  • Allowing parents of U.S. citizens and lawful permanent residents who have been present in the country since January 1, 2010, to request deferred action and employment authorization for three years, in a new Deferred Action for Parental Accountability program, provided they pass required background checks
  • Expanding the use of provisional waivers of unlawful presence to include the spouses and sons and daughters of lawful permanent residents and the sons and daughters of U.S. citizens
  • Modernizing, improving and clarifying immigrant and nonimmigrant programs to grow our economy and create jobs
  • Promoting citizenship education and public awareness for lawful permanent residents and providing an option for naturalization applicants to use credit cards to pay the application fee

Waiting Game

Currently, none of these proposals have been implemented. Based on current chatter, it appears that it will be a few months, likely after the new year, before any of these changes are implemented.

So, at this point we cannot provide specific advice or assist any clients in filings related to the executive action on immigration. However, there are preparatory steps individuals can take to prepare.

Documents you should have ready for upcoming executive action on immigration

While the specifics have yet to be detailed, it is likely that certain documentation will be useful in taking advantage of the forthcoming executive action.

Individuals interested in taking advantage of the benefits of the executive action should gather documents demonstrating identity, any relationships with U.S. citizens and lawful residents and evidence demonstrating a continuous residence in the united states for 5 years or more. Having these documents ready prior to contacting an attorney to assist you further will likely decrease the amount of time it takes to process your case.

Obama to lay out framework for executive based immigration reform Thursday 11/20/2014 at 8:00pm EST

President Obama is scheduled to announce his framework for immigration reform tonight at 8:00pm EST 5:00pm pacific.

The plan allegedly will shield around 5 million currently present illegal aliens from deportation. There may also be reforms related to acquiring work permits and other benefits.

We will provide a detailed analysis of the executive action after its announcement.

We will also monitor any legal challenges this executive based action may face, as republicans have made clear they plan to oppose any action. This also could lead to a showdown financially, if the republican controlled legislative branch refuses to continue funding the government until comprehensive legislation is passed, or until President Obama repeals his executive action. The federal government will run out of funding on December 11th and may be able to continue functioning with some accounting antics for a short time thereafter. So mid-December may be a time of intense political wranglings.

As always, our goal is to provide the most competent and cost-effective advice to our clients as possible. Whatever framework is established, we will try to leverage it as much as possible to meet our clients’ needs.

Typical Pathways to Citizenship

Currently there are 4 typical ways an individual can get U.S. citizenship.  They are: 1) Individuals who apply and have had a green card for more than 5 years; 2) Green card holders who marry U.S. citizens; 3) Green card holders in the military and their family; derivative Citizenship through parents.

Recently there has been talk about a comprehensive immigration reform bill. If that bill passes it will likely contain some type of amnesty clause or a framework to allow currently present non-status individuals a pathway to residency if not citizenship. I will write further on that topic, and update this section, when the framework is known and concrete.

Below are the typical pathways to United States Citizenship

If you have been a green card holder (permanent resident) for at least 5 years, the general requirements are as follows:

  • Be 18 or older at the time of filing
  • Be a green card holder for at least 5 years immediately preceding the date of filing the Form N-400, Application for Naturalization
  • Have lived within the state, or USCIS district with jurisdiction over the applicant’s place of residence, for at least 3 months prior to the date of filing the application
  • Have continuous residence in the United States as a green card holder for at least 5 years immediately preceding the date of filing the application
  • Be physically present in the United States for at least 30 months out of the 5 years immediately preceding the date of filing the application
  • Reside continuously within the United States from the date of application for naturalization up to the time of naturalization
  • Be able to read, write, and speak English and have knowledge and an understanding of U.S. history and government (civics).
  • Be a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States during all relevant periods under the law

For green card holders that marry U.S. Citizens, the general requirements are:

  • Be 18 or older
  • Be a permanent resident (green card holder) for at least 3 years immediately preceding the date of filing Form N-400, Application for Naturalization
  • Have been living in marital union with the U.S. citizen spouse, who has been a U.S. citizen during all of such period, during the 3 years immediately preceding the date of filing the application and up until examination on the application
  • Have lived within the state, or USCIS district with jurisdiction over the applicant’s place of residence, for at least 3 months prior to the date of  filing the application
  • Have continuous residence in the United States as a lawful permanent resident for at least 3 years immediately preceding the date of filing the application
  • Reside continuously within the United States from the date of application for naturalization until the time of naturalization
  • Be physically present in the United States for at least 18 months out of the 3 years immediately preceding the date of filing the application
  • Be able to read, write, and speak English and have knowledge and an understanding of U.S. history and government (also known as civics)
  • Be a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States during  all relevant periods under the law

For individuals who have served in the military during peacetime the general requirements are (note there are different requirements in peacetime and during hostilities, also not the requirements vary for family members:

  • Be age 18 or older
  • Have served honorably in the U.S. armed forces for at least 1 year and, if separated from the U.S. armed forces, have been separated honorably
  • Be a permanent resident at the time of examination on the naturalization application
  • Be able to read, write, and speak basic English
  • Have a knowledge of U.S. history and government (civics)
  • Have been a person of good moral character during all relevant periods under the law
  • Have an attachment to the principles of the U.S. Constitution and be well disposed to the good order and happiness of the U.S. during all relevant periods under the law
  • Have continuously resided in the United States for at least five years and have been physically present in the United States for at least 30 months out of the 5 years immediately preceding the date of filing the application, UNLESS the applicant has filed an application while still in the service or within 6 months of separation.  In the latter case, the applicant is not required to meet these residence and physical presence requirements.

The rules for derivative citizenship through parents are complicated and vary depending on a variety of factors.

 

As always, consult with a licensed attorney prior to taking any action.

Five tips if you are pulled for DUI in Southern California

Being stopped on suspicion of DUI is a scary experience, even if you not impaired.  While you should always comply with the law, here are a few tips if you are pulled over under suspicion of DUI in California.

  1. The officer is conducting an investigation.
    • When you are first stopped the officer will work to gather objective facts that will help him or her make a determination as to whether you have violated the law. So everything you do and say will be evaluated and potentially used against you.  If you say “I had 6 drinks,” you can be sure that will go in the report.  Similarly, if you have bloodshot eyes, or the car smells like beer, that will be used against you too.
  2. Field Sobriety Tests are not your friend.
    • Many people think that if they “ace” the field sobriety tests they will get out of a potential DUI. Taking into account point one above, field sobriety tests (FSTs) are really just a way for an officer to identify more objectively identifiable facts of your potential intoxication. These tests are filled with very specific instructions and your failure to follow those instructions to down to the letter will create more evidence of your alleged intoxication.
  3. If you fail to take a breath or blood alcohol test you in California your license will be revoked for a year or more.
    • So while refusing to partake in FSTs may have no direct legal ramifications for you, refusing to provide a breath or blood sample of your blood alcohol level certainly will. Just know, that if you refuse a test, there are serious consequences. See California Vehicle Code Section 23612.
  4. Sleeping in your car when intoxicated could lead to a DUI.
    • California requires movement of the vehicle for a DUI conviction to stick.  However, depending on the specifics, you could be cited for DUI if you are parked and asleep at the wheel when intoxicated. There are factors the prosecutor, and fact-finder will look at to deterimine whether to file charges and whether to convict you.  For example, if you are pulled over alone on the side of Interstate-5 that is pretty strong circumstantial evidence that you drove the vehicle there. Tagging off of point one above, if you admit to the officer that you recently drove the vehicle, that, obviously, would be sufficient evidence too.  So, even though California requires evidence that the vehicle was volitionally operated, sleeping in a parked vehicle while intoxicated could still lead to charges being issued, whether they ultimately result in a conviction will depend on the specifics of your case.
  5. The best way to avoid a DUI is to never drive when impaired.
    • Simple advice for sure, but the best way to avoid a DUI is not to drive a vehicle when impaired.  Today, there are alternatives like Uber, Lyft, cabs, and even sober ride services that drive you and your car home at no charge.  There is no reason to get a DUI if you plan ahead, or are willing to spend a little money to get a ride home.  In the moment you may think a $50 taxi ride is expensive but a DUI is magnitudes more expensive when you factor in the thousands in court fees, fines, attorneys fees, and the increase in your vehicle insurance premiums going forward

Each case is different, if you have been arrested for DUI contact us for a free consultation.