About: Ilona Bray

Ilona Bray is a former attorney and the author of several Nolo immigration books. Her working background includes both solo immigration practice and working or volunteering as an immigration attorney with nonprofit organizations in Seattle and California.

Recent Posts by Ilona Bray

It’s a Fine Executive Order, But What Will the 2017 President Do?

Obama immigration speechMany immigrant groups have expressed disappointment that President Obama’s Executive Order of November 20, 2014 did not go further in easing the lives of immigrants within the United States.

Latino groups, for example, would have liked to see relief for farmworkers, LGBT groups would have liked to see relief for those without family relationships to draw on, and young beneficiaries of Deferred Action for Childhood Arrivals (DACA) would have liked to see their parents and other non-DACA-eligible family members receive derivative benefits, such as a work permit and similar protection from deportation.

But I’m impressed that the order went as far as it did, basically stopping just short of granting any new, permanent legal status to non-citizens of the United States. Doing so is traditionally seen as the role of Congress, though the exact line between the president’s and Congress’s power over immigration matters has never been clearly drawn. (For a full legal analysis, see “The President and Immigration Law,” by Adam Cox and Cristina Rodriquez.)

The expansion of the provisional waiver program, for example, is a huge fix to what was essentially a procedural inequity, allowing adult children of U.S. citizens as well as spouses and children of lawful permanent residents who were living in the U.S. unlawfully and not among those allowed to file paperwork here, but too scared to leave to collect the green cards they were otherwise eligible for, to file a waiver request and obtain assurance before their departure that they’d be allowed back into the United States. (Sorry, there’s just no way to make that brief and easy to grasp. Put another way, the provisional waiver allows them to apply for a waiver of their unlawful presence in the U.S. before, not after taking the risk of departing and then being barred from return. Is it any wonder the press and public seem a little unclear on the details?)

For more on this and other changes made by the Executive Order, see Nolo’s update, “President Obama Announces Executive Action on Immigration.”

The bottom line, however, is that an executive order can be easily undone by the next executive — and we don’t know who will succeed President Obama after the 2016 election. Immigrants are plenty aware of this fact. That’s why far fewer young people applied for DACA relief than were eligible or expected.

If it’s true that young people have a sense of invincibility, then one might argue that the new group of deferred-action-eligible people created by President Obama’s order — parents of U.S. citizens and permanent residents — might be even less willing to say, in effect, “Hey look, I’m here illegally, here are my name and address for your files!”.

They know, better than many of the opponents of the President’s order, that neither DACA nor the new Deferred Action for Parental Accountability (DAPA) program is in any way an amnesty. Neither program offers a path to a green card — DACA and DAPA provide only a work permit and a short-term promise that those approved won’t be deported. As stated to the National Journal by Marc Rosenblum, deputy director of the Migration Policy Institute’s U.S. Immigration Policy Program, “Those who have a stable job and aren’t looking for a new one might decide it’s safer to keep their names off the government’s books.”

The one thing that every group representing, or even interested in the fate of immigrants and refugees in the U.S. seems to agree on, is that Congress needs to get its act together and actually pass immigration reform. That will no doubt fall short of providing the relief that everyone hopes for too, but at least it will offer some certainty.

Diane Guerrero’s Story of Parents Being Deported Represents Experience of Thousands of Children

ICE arrestActress Diane Guerrero (“Orange Is the New Black,” “Jane the Virgin”) recently described her traumatic experience, at age 14, of coming home to find that her parents had been picked up by U.S. immigration authorities. They were detained and ultimately deported. (See “Op-Ed ‘Orange is the New Black’ actress: My parents were deported.”)

She literally came home to an empty house, receiving no communication, much less help, from U.S. authorities. Only by relying on help from friends was she able to keep her life together and ultimately achieve the success that she did. (Many others aren’t so lucky.)

If that sounds like a script worthy of a movie, realize that it happens every day — no exaggeration. As described in the Huffington Post‘s article by Elise Foley, “Deportation Separated Thousands Of U.S.-Born Children From Parents In 2013,” Immigration and Customs Enforcement [ICE] last year carried out more than 72,000 deportations of parents who said they had U.S.-born children.”

That’s despite the supposedly active policy of “prosecutorial discretion,” under which ICE agents are expected to follow specific guidelines in choosing who to spend precious government resources on prosecuting, giving lower priority to cases where the undocumented immigrant is law-abiding and has ties to the U.S. such as U.S. citizen children and other family members.

In fact, Diane may have been lucky to escape U.S. government workers’ notice. The all-too-common scenario when a parent is deported is for the child to be placed into the foster care system, lose contact with the parents, and ultimately have the parents’ legal rights and relationship to them terminated. (See, “Thousands of Kids Lost From Parents In U.S. Deportation System,” by Seth Freed Wessler, Colorlines, November 2 2011.)

So, on top of using U.S. government resources to break up families, this misused exercise of discretion is costing the foster care system untold amounts. It’s a problem that could be solved without waiting for immigration reform, with more rational behavior by ICE in following its own guidelines, and attention to maintaining family ties within the foster care system. Let’s hope Diane Guerrero’s story, by putting a face on this crisis, will spur efforts in this direction.

Oh Where, Oh Where Are the O-1 Visas Going?

o letterGetting approval of any type of visa for temporary work in the U.S. involves providing stacks of paperwork to U.S. Citizenship and Immigration Services (USCIS), with the goal of proving that the applicant meets a strict set of legal criteria. That’s part of why people hire immigration attorneys — not only to interpret the law, but to help assemble, file, and keep track of all the documents in a client’s case.

So when even the attorneys are complaining that USCIS is raising the bar on the type and amount of documents required, and ultimately reducing the numbers of approvals, you know there’s a problem. That’s precisely what’s happening in the case of O-1 visas for outstanding workers in the sciences, arts, athletics, education, or business.

According to to an October 17, 2014 report by Matthew Blake of the San Francisco Daily Journal, immigration lawyers are concerned that, “over the past year, [USCIS] has made it more difficult for their clients to get work visas, speculating that the agency is accepting more petitions for scientists at the expense of entertainers, or more cautiously following visa rules with national immigration policy in flux.” Applicants are being asked to provide “detailed, multi=year work itineraries,” and “more evidence that they are extraordinary.”

Some lawyers met with USCIS over this issue, but were disappointed at the answers (or lack thereof.) The lawyers have since requested a “summit” with federal immigration officials.

Perhaps these lawyers’ actions will bring about a resolution such that prospective O-1s can get on with their lives and visa applications. But if you are a potential O-1 seeker — especially an athlete — you’d do well to consult an attorney with lots of recent experience in this subspecialty of immigration law.

Dispelling Misleading Info About Same-Sex Marriage and U.S. Immigration

ringsWith every state that legalizes gay marriage, it gets a little easier for binational couples across the U.S. to marry and obtain a green card on that basis.

But let’s get one thing clear: It’s not critical that the state where the couple live have legalized same-sex marriage, nor that they get married there in order to claim immigration benefits. Ever since last year’s Windsor decision by the U.S. Supreme Court, a same-sex marriage in ANY STATE OR COUNTRY WHERE IT’S LEGAL has been enough to support the non-citizen’s application for a green card. (See Nolo’s article, “Same-Sex Marriage Now a Basis for U.S. Lawful Permanent Residence (a Green Card)” for more on this.)

This simple truth makes it downright puzzling to see an article like “Worries lessen for Virginia gay immigrants, who can now marry” in the Washington Post, by Pamela Constable. If I didn’t already know better, I would have come away from the article thinking that the Virginia-based binational couples profiled were in an absolute trap until Virginia legalized same-sex marriage – that they were unable to get the foreign-born person a green card (lawful permanent residence) based on their relationship.

The article describes the situation of a Richmond couple, for example, one member of whom is from Paraguay, as follows: “because . . . the two men could not marry without starting over and moving to another state, they faced constant financial, legal, and emotional strains.”

But, but, but . . . they could’ve traveled to another state or country that allows same-sex marriage months ago, and held a wedding without doing anything close to “starting over!”

States vary in what they require of couples who want to marry there, of course. Nevertheless, in California, Hawaii, New Mexico, and most of the other states where same-sex marriage is legal, you can get married with no residency requirement and minimal or no waiting period, immediately after receiving your marriage license. (See Nolo’s “Chart: State Marriage License and Blood Test Requirements” for more information, as well as “Where Can We Marry?” by the organization Immigration Equality.)

Constable quotes a member of another binational couple profiled in the article as saying, “This news came just in the nick of time,” before the non-citizen’s work visa ran out. Guys, Virginia is a quick trip away from Maryland as well as Washington, DC. Neither impose any residency requirements before marrying, and their waiting requirements are a mere few days after getting the marriage license. I’ll bet they’ve got many lovely wedding venues, too!

The article does mention that some binational couples in Virginia have already married in DC or Maryland, but you’ve got to read pretty far down to catch that. And I get it that having to travel far from one’s home base and bring friends along, too, would be a royal pain. So the news from Virginia is definitely good for binational couples there – it’s just not as monumental as it sounds.

Diversity Visa Lottery Officially Open!

enter to winHave you entered the 2014 visa lottery yet? (Officially called DV-2016, based on the year in which visas will actually be awarded.) It’s one of the best opportunities that people with no previous ties to the United States (such as a family member or a job offer) have to get a U.S. green card (lawful permanent residence).

Registration just began, on October 1, 2014. It’s open to the same group of countries as last year — which means most of the countries in the world — with the exception of citizens of the following, who are already considered to be over-represented in U.S. immigration numbers (based on recent entry statistics) and are therefore NOT ELIGIBLE:

  • BANGLADESH
  • BRAZIL
  • CANADA
  • CHINA (mainland-born)
  • COLOMBIA
  • DOMINICAN REPUBLIC
  • ECUADOR
  • EL SALVADOR
  • HAITI,
  • INDIA
  • JAMAICA
  • MEXICO
  • NIGERIA
  • PAKISTAN
  • PERU
  • PHILIPPINES
  • SOUTH KOREA
  • UNITED KINGDOM (except Northern Ireland) and its dependent territories, and
  • VIETNAM.

You must, however, meet certain educational and other requirements in order to apply. See the State Department’s instructions for details.  Also realize that “winning” the lottery — that is, having your name selected — does not guarantee you a U.S. green card. In fact, the U.S. government always selects more names than it can actually grant green cards to, and only the applicants who can move through the system quickly and efficiently will succeed. See the “Diversity Visa Lottery Green Cards” page of Nolo’s website for details. And good luck!

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