Expanded DACA & DAPA – Fifth Circuit Denies Emergency Stay as Underlying Case on Immigration Action Proceeds Further

Yesterday (5/26/2015), a federal appeals court decided that President Obama’s most recent executive action on immigration (expanded DACA & DAPA) is to remain on hold during a further legal fight over presidential decision to provide as many as 4 to 5 million immigrants with a temporary relief from deportation. That means that the court rejected the administration’s request to lift an order blocking Obama from expanding his program for illegal immigrants who entered the country as children (DACA) and creating a new program for illegal immigrant parents of U.S. citizens (DAPA).

The 5th Circuit Court of Appeals voted 2-1 to deny an emergency stay of an injunction U.S. District Court Judge Andrew Hanen imposed on Obama’s plan back in February at the request of Texas and 25 other states challenging the president’s executive action. Hanen declared that Obama’s actions violated federal law because they were not properly announced and opened for public comment before being put into effect. Judge Hanen, however, did not rule explicitly on whether the president even has the legal authority to carry out such actions.

Writing for the majority, Judge Jerry Smith said the Justice Department had not met the legal standards required to block the lower court ruling. She was joined by Judge Jennifer Elrod, in stating that the federal government had failed to show that Hanen erred when he concluded that the new program amounted to a formal rule that should have been put through formal notice-and-comment procedures. The Obama administration claims that the policy involves the exercise of case-by-case discretion, but the appeals court found the evidence on that point to be conflicting and said Hanen’s conclusion wasn’t “clearly erroneous.”

The Obama administration can now turn to the U.S. Supreme Court, or Justice Department officials can wait until the 5th Circuit rules on the actual merits of Hanen’s legal rationale for the injunction he entered in February. A different panel of the appeals court is expected to hear arguments on those issues in early July.

Judge Stephen Higginson, the sole Democratic appointee on the 5th Circuit panel, dissented from Tuesday’s ruling. He portrayed Obama’s actions not as favors for certain groups of illegal immigrants, but a logical effort to prioritize deportation efforts. Higginson said he believes the lawsuit brought by the states is “non-justiciable,” meaning it is in a category of disputes the courts refrain from ruling on because doing so would impinge on the executive branch’s traditional authority.

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Can I Cancel My Husband’s or Wife’s Green Card?

The sad reality of marriage is that statistically about 50% of all marriages end up in divorce. Things get even more complicated when a US Citizen or Lawful Permanent Resident has filed a petition for spouse’s permanent residence but then no longer wishes to pursue the process due to a breakdown of the relationship. Can the Petitioner stop the process?

If the I-130 is pending with USCIS, the petitioner can usually submit a signed, notarized letter to the location where the case is pending advising that he/she wishes to withdraw the I-130.

If the I-130 has already been approved and the matter is pending with the National Visa Center (NVC), the petitioner should, as above, notify NVC, that he/she wishes to withdraw the underlying petition.

If the I-130 has already been approved, and the case has moved from the National Visa Center to the US consulate, then correspondence must be sent to the US consulate where the interview will be scheduled. Obviously, the petitioner should notify the consulate before the interview is scheduled that he/she wishes to withdraw the petition. Notification should be made by a written notarized letter.

While the actual procedure to withdraw the petition is actually quite simple, the decision to withdraw the petition should not be as easy. It definitively should not be a spur of a moment decision as the consequences are serious. Once the petition is withdrawn or canceled, the case is as good as over. If the petitioner changes his/her mind later on, it will not be easy to revive the case. A new petition will most likely have to be filed, resulting in more delay since the case will have to start over from the beginning. Therefore, couples who are having relationship or marital disputes during the pendency of the case must think twice before taking any action on the case. Just as couples who are having problems should not, under most circumstances, be rushing to file for divorce, neither should immigration petitions be taken lightly. Since marriage cases take some time, it is always advisable for spouses who have had an argument to “cool off” before the petitioner decides to take things further. The last thing a reconciled couple would want to learn is that the case has been canceled, and even though the petitioner’s request to cancel or withdraw the petition was a mistake made out of haste and emotion, a new petition with a new filing fee, will have to be filed. As such, withdrawing a petition should only be done once the petitioner has definitely made up his/her mind and understands the consequences of that decision.

If the foreign national spouse has already been granted permanent residence, then for all practical purposes, the petitioner will not be able to withdraw or cancel the I-130. If the spouse has a conditional green card, however, the immigrant will usually be expected to file to remove the conditions on his/her residence ninety days prior to the second anniversary of the grant of permanent residence. So, if the US Citizen/Lawful Permanent Resident does not join in the petition, it may be problematic for the foreign spouse to obtain a permanent green card (there are exceptions, of course). If the immigrant spouse has already been granted permanent residence without conditions, the petitioner will not be able to “cancel” the green card.

It is important to understand that the above is only general information. The law is extremely fact and circumstance sensitive. For an individual legal analysis of your specific legal case, you should always consult with an attorney.

We hope that you have enjoyed this article and learned at least one new thing or tip that you may not have known. To keep informed about the latest legal developments, please subscribe to our blog by clicking on the “Sign me up!” button on the right.

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The Effect of the Affordable Care Act’s Current Tax Scheme on Nonresident Aliens, and Migrant Workers and their Employers

By: Giavanna M. Reeves, J.D.

Effective March 30, 2010, the requirement to maintain minimum essential coverage for healthcare insurance is applied to applicable individuals for each month beginning after 2013. The Affordable Care Act (“ACA”) defines “applicable individuals” as persons other than individuals who are “not a citizen or national of the United States or an alien lawfully present in the United States.” Thus, the ACA does not apply to individuals who are residing in the United States without legal status or citizenship, and no tax penalties can be assessed to these individuals for noncompliance within the ACA provisions. Even though the Act does not apply to nonresident aliens, it may apply to migrant workers and their employees. The substantial presence test, which is used to determine if a nonresident alien will be considered a resident for tax purposes, is not necessarily useful in determining if a nonresident alien must comply with the ACA.

Nonresident Aliens

The Internal Revenue Code defines a nonresident alien as an individual who is “neither a citizen of the U.S. nor a resident of the U.S.” Knowledge of immigration status is an alien’s first step in determining how he or she is affected by the Act. The White House has provided a healthcare marketplace website for the purchase of affordable health insurance and a list of immigration statuses that qualify for the Act’s mandate to have health insurance. Those who maintain certain immigration statuses are required to comply with the ACA and have at least a minimum essential healthcare insurance plan—the list of statuses are as follows :
• Lawful Permanent Resident (LPR/Green Card holder)
• Asylee
• Refugee
• Cuban/Haitian Entrant
• Paroled into the U.S.
• Conditional Entrant Granted before 1980
• Battered Spouse, Child and Parent
• Victim of Trafficking and his/her Spouse, Child, Sibling or Parent
• Granted Withholding of Deportation or Withholding of Removal, under the immigration laws or under the Convention against Torture (CAT)
• Individual with Non-immigrant Status (includes worker visas, student visas, and citizens of Micronesia, the Marshall Islands, and Palau)
• Temporary Protected Status (TPS)
• Deferred Enforced Departure (DED)
• Deferred Action Status (Deferred Action for Childhood Arrivals (DACA) is not an eligible immigration status for applying for health insurance)
• Lawful Temporary Resident
• Administrative order staying removal issued by the Department of Homeland Security
• Member of a federally-recognized Indian tribe or American Indian Born in Canada
• Resident of American Samoa

Applicants for the following statuses are also required to comply with the ACA and have at least a minimum essential healthcare insurance plan:

• Temporary Protected Status with Employment Authorization
• Special Immigrant Juvenile Status
• Victim of Trafficking Visa
• Adjustment to LPR Status
• Asylum

Even if an individual is deemed to be without a legal immigration status, or a nonresident, then the substantial-presence test may consider him or her a resident for tax purposes. There are two separate tests that will determine if an alien is a resident of the U.S. for tax purposes. The first test is the green card test. If an individual is granted a green card that has not been revoked, and is physically present in the U.S., then the individual passes the green card test is a resident for tax purposes. Lawful permanent resident is also another term affiliated with the individual who possesses a green card. The second test is the substantial presence test. Under the substantial presence test, individuals who are physically present in the U.S for 31 days during the current tax year and 183 days during the 3-year period, which includes the current year and the 2 years immediately before that, counting all the days of the present year and, 1/3 the days of the first year, and 1/6 the days of the second year.

Note, however, that the substantial presence test is used to determine income tax payment responsibility and it is not necessarily clear if the test can be used in connection with the Act’s healthcare mandate. The plain language of the ACA makes the health insurance coverage a requirement for citizens or aliens with legal immigration status. Thus, just because an alien meets the substantial presence test, that does not mean that he or she will be held responsible under the ACA for failure to maintain health insurance if he or she does not have legal immigration status, i.e. a green card, visa, or other immigration benefits granting stay within the U.S. Also, Congress has decided that access to healthcare is limited:

if an individual is not, or is not reasonably expected to be for the entire period for which enrollment is sought,
a citizen or national of the United States or an alien lawfully present in the United States, the individual shall not
be treated as a qualified individual and may not be covered under a qualified health plan in the individual market
that is offered through an Exchange.

In conclusion, the ACA will apply to citizens and aliens who have legal immigration status. The substantial presence test will deem an individual a resident for tax purposes, but without a legal immigration status, the ACA mandate will not apply to him or her.

Migrant Farmworkers and Employers of Migrant Farmworkers

Migrant farmworkers have lawful status to be physically present in the U.S. using an H-2A visa. Even though the work of a migrant farmworker is seasonal, the worker is expected to maintain minimum essential healthcare insurance. Starting in 2014, all employers that have at least 150 workers…will have to provide medical insurance for their employees, and that will have to be provided at the point of hire for new employees and retrospectively for all existing employees when the annual renewal of policy occurs. Also, working for an employer for less than 120 days in a given year, then that requirement does not apply…many workers do not work 120 days for a single employer and therefore that employer would not be obligated to provide medical insurance for them. If an employer is required to provide insurance to a migrant worker and fails to do so, the employer is penalized $2,000 per year, per employee.

In sum, migrant farmworkers, who are visa holders, are required to have minimum essential healthcare insurance. The employers of the migrant farmworkers will be required to provide a health insurance option starting in 2014. The penalty for failing to provide the farmworkers an option or making sure that they have health insurance is $2,000.00 per employee.

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Paying off Credit Card Debt after a Death

When dealing with a death of a loved one, his/her unpaid credit card bills are probably the last thing on your mind. But should you concern yourself with someone else’s credit card debt?

While paying off the debts of a relative might feel like a moral obligation, the answer as to whether it is a legal obligation is not immediately clear. Generally credit card debts are not the responsibility of any family members, but become a responsibility of the deceased person’s estate. In a nutshell, the debts of the deceased should be deducted from the estate’s assets. However, if there are no assets or the debts exceed the assets, the outstanding debt is usually “written off” by the creditors.

If the family members were, however, joint account holders, they may very well be on the hook for the debt. For example, a husband is not responsible for the credit cards of his wife, if wife was listed as the only user. But if the husband was a joint account holder, he could still be liable. If the husband was only an authorized user, however, he should not be liable for the debt, unless he was also actually using that credit card. As such, even those relatives who were not joint account holders or authorized users could still be liable for the debt if they used the deceased’s credit card. Note, that while the credit card companies may acknowledge that the family member is not responsible for the debt, they could still report him or her to credit reporting agencies.

There are exceptions, but typically the relatives are protected from creditors by the federal Fair Debt Collection Practices Act, or FDCPA. The law has severe penalties for violations of the FDCPA, and relatives who are being harassed by creditors can fight back. Once creditors or collection agencies contact heirs, they should be provided with the contact information for the person handling the estate (such as an executor or a personal representative), and under the law the creditors or collectors are not allowed to further contact the heirs. In addition, creditors or collectors are not allowed to mislead anyone into thinking that he or she has a legal responsibility for a debt if that is not the case. If you are being improperly contacted by a creditor or collection agency, consult with an attorney to determine your remedies.

If an estate goes into probate, which is the first step in the legal process of administering the estate of a deceased person, then the court typically decides which creditors get paid first, before any heirs receive their inheritance. In general, many states require written “notice” to creditors when probate is opened, giving them some time to make a claim. But credit cards are often one of the last items to be paid from an estate. Other liabilities take priority, such as taxes, mortgages, Medicaid, administration expenses, and funeral expenses.

If your relative dies with credit card debt, it is a good idea to inform the lender/creditor as well as the three major credit reporting bureaus (TransUnion, Equifax and Experian) of the date of your relative’s death and to close the credit account and credit profile. Also check if there was insurance for the credit cards that would pay off the amount due at death.

Closing the deceased person’s account will not only help you put your loved one’s affairs in order, but it can prevent a potential scam. Some unscrupulous collection agencies have been known to harass deceased person’s relatives claiming that the deceased had an outstanding debt. Typically, the claimed debt amount is sufficiently low as to make the survivors tempted to just pay it off instead of spending time arguing and seeking debt validation, which you typically should do.

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The current situation in Ukraine does not merit the filing of an asylum application

by Tatiana B. Durbak, Esq.

During the past month-and-a-half, I have received several inquiries from Ukrainians who would like to file asylum applications, based on the current situation in Ukraine. All of the people were quite insistent that their cases were urgent and were extremely confident that the applications would be granted. The last inquiry was from a gentleman who had already filed his application and who wanted to get employment authorization more rapidly. He believed that if the adjudicator understood the urgency of his need, not only the employment authorization would be granted, but it would be granted in an expedited time frame. That is not the case, however. There are no such shortcuts in asylum process.

These inquiries made me think that there must be people in the community who believe that political asylum applications are now a good way for Ukrainians to obtain or maintain lawful immigration status in the US. Unfortunately, this perception is inaccurate. At the present time, unless one is from Crimea or from one of the areas where Russian agitators are very active, there will usually be insufficient basis to file a successful asylum application.

To be able eligible for a grant of asylum, one must establish that one has a well-founded fear of persecution on the basis of race, religion, nationality, political opinion, or membership in a particular social group. The persecution must be carried out by the government or a group that the government cannot or will not control. There are additional requirements, and each employs terms that have a specific legal meaning that may differ from the ordinary meaning of the word.

Although past persecution can be used as a basis for asylum eligibility, it’s important to know that not all hostile behavior is defined legally as persecution. For example, if one was stopped or harassed by the police, or one’s home was searched a couple of times, or even if one spent a few days in jail, it is not necessarily true that the US government will find this to constitute persecution. Furthermore, if the US government proves that country conditions in the home country changed after the time that the persecution occurred and that the applicant no longer has a reason to fear future harm, the past persecution claim will not establish an asylum claim. If new people take charge of the government, or a new president or prime minister is appointed or elected, the US government will believe that country conditions are now changed and that persecution is no longer likely. The applicant must then prove that the new government will also persecute her/him or that the new government cannot or will not control the group that is causing the persecution.

In almost all asylum cases, corroborating evidence must be provided; a person’s statement or testimony alone will usually be insufficient to win a case. Any untrue or misleading information can result not only in a denial, but in a permanent bar to any immigration benefits.

An asylum applicant may not apply for permission to work (employment authorization) until 150 days have passed from the time of acceptance of the application by USCIS. There are no exceptions to this rule.

Asylum applications must be filed in the office with jurisdiction over one’s place of residence. The approval rates vary among asylum offices and vary from month to month; San Francisco usually has the highest rates of approvals (in the 60% range) and New York the lowest (usually below 20%); the over-all approval rate hovers in the upper 30% range. This means that, across the country, most applications are not approved. If an asylum application is not approved, and the applicant’s period of permitted stay has expired, the case will be referred to Immigration Court, and the applicant will be placed in removal (deportation) proceedings.

Although it is true that many people were killed during the Maidan demonstrations, that many others were beaten, and that much repressive action occurred, there was a change in the government as a result of the demonstrations. There is no indication that the current Ukrainian government is persecuting anyone who participated in or who supported Maidan.

It is possible, in particular circumstances, that a Ukrainian citizen may be eligible to receive an asylum grant. However, no one should file such an application without consulting an attorney who practices immigration law and who has experience doing asylum applications. An un-approved asylum application will usually lead to removal (deportation) proceedings, which are costly – in money, time, and energy. It is important for everyone to be aware of the fact that in the US, notaries are not legal professionals. Translators and other well-intentioned people who do not know the law often offer advice that is inaccurate and which can lead to removal proceedings. People who do not have sufficient money to consult an attorney should consider going to one of the many non-profit agencies, recognized by the US government, which have staff trained in immigration law. A list of such agencies can be found at this website: http://www.justice.gov/eoir/probono/states.htm ; they are listed by state.

Ukrainians who enter the US on a valid visa and whose period of stay has not expired may have other options to prolong their period of stay in the US. A conversation with an attorney who is knowledgeable about such matters is probably a worthwhile investment, because it can enable one to understand the system and the process and to make the plans that best meet one’s needs. Proceeding on one’s own, or with the advice of people who are not experts in the area of immigration law can result in a waste of time, money and effort and in much heartache.

Tatiana B. Durbak has been an immigration lawyer for many years. She has worked in the private and non-profit sectors and currently practices in Pennington, NJ at the Teper Law Firm LLC. She can be contacted at tdurbak@teperlaw.com

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How to Stay Safe during Winter Storm

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  • Bring pets and companion animals inside during severe weather.
  • Remember that running water, even at a trickle, can help prevent pipes from freezing.
  • Keep garage doors closed if there are water supply lines in the garage.
  • Open kitchen and bathroom cabinet doors to allow warmer air to circulate around the plumbing. Move any harmful cleaners and chemicals up out of the reach of children and pets.
  • Keep the thermostat set to the same temperature both during the day and at night.
  • Go to a designated public shelter if your home loses power or heat during periods of extreme cold. Text SHELTER + your ZIP code to 43362 (4FEMA) to find the nearest shelter in your area
  • Avoid driving in dangerous conditions such as: sleet, freezing rain or drizzle, snow or dense fog. If travel is necessary, keep a disaster supplies kit in your vehicle.
  • Before tackling strenuous tasks in cold temperatures, consider your physical condition, the weather factors and the nature of the task. Overexertion can bring on a heart attack—a major cause of death in the winter. If you must shovel snow, stretch before going outside.
  • Protect yourself from frostbite and hypothermia by wearing warm, loose-fitting, lightweight clothing in several layers. Stay indoors, if possible.
  • Remember about people who require special assistance, such as elderly people living alone, people with disabilities and small children.
  • Never use a generator, grill, camp stove or other gasoline, propane, natural gas or charcoal-burning devices inside a home, garage, basement, crawl space or any partially enclosed area. Locate unit away from doors, windows and vents that could allow carbon monoxide to come indoors.

 

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5 Tips to Avoid Speeding Tickets

Let me begin this article by stating that there is no such thing as fool-proof system to avoid receiving speeding tickets … except always driving posted speed limit. However, there are a few things you can do (and say) that can help you avoid getting more speeding citations.

  1. Work on your situational awareness. If everyone on the road is slowing down, there probably is a reason for that. Don’t be that guy who burns rubber leaving everyone behind, sticking out like a sore thumb.
  2. So don’t stick out. Which car is more likely to get pulled over, the tan sedan traveling in the slow lane, or the hemi orange Challenger?
  3. Keep quiet and always be polite. Once you get pulled over, never get snippy with the officer. This is not a place or time to argue your case. Challenging a police officer will not help you make your case but may result in additional citations. If you truly believe that the ticket was unfair, fight it later in court. Hand in your license, registration and proof of insurance. Remain polite but do not volunteer any information.
  4. If you do decide to engage the officer and try to talk your way out of a ticket, don’t insult the officer’s intelligence with some ridiculous excuse. Many officers are more likely to let someone off with a warning or non-point citation if that person is truthful than someone who is lying.  A traffic cop has probably seen and heard it all, if he or she happens to be in a good mood you may get lucky but don’t count on being rewarded for creativity.
  5. If you’re going to speed because let’s be frank everyone does it from time to time, and if you drive in NJ it may feel like everyone is speeding all the time, keep in mind that many officers may not bother pulling someone over who is speeding 5-10 miles over the limit, but once you are going 10+ miles you’re starting to stick out. Going over 20+ miles over the speed limit is even more likely to result in some unwanted attention from the police. Having said that, let’s go back to the situational awareness – going 10 miles over the speed limit in a residential neighborhood is not the same as speeding on a highway.
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