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Irene Vaisman, Esq.

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Secretary of Homeland Security Jeh Johnson announced the process for individuals to renew enrollment in the Deferred Action for Childhood Arrivals (DACA) program. U.S. Citizenship and Immigration Services (USCIS) has submitted to the Federal Register an updated form to allow individuals previously enrolled in DACA, to renew their deferral for a period of two years. At the direction of the Secretary, effective immediately, USCIS will begin accepting renewal requests. USCIS will also continue to accept requests for DACA from individuals who have not previously sought to access the program.

The first DACA approvals will begin to expire in September 2014. To avoid a lapse in the period of deferral and employment authorization, individuals must file renewal requests before the expiration of their current period of DACA. USCIS encourages requestors to submit their renewal request approximately 120 days (four months) before their current period of deferred action expires.

DACA is a discretionary determination to defer removal action against an individual. Individuals in DACA will be able to remain in the United States and apply for employment authorization for a period of two years. Individuals who have not requested DACA previously, but meet the criteria established (see below), may also request deferral for the first time. It is important to note that individuals who have not continuously resided in the United States since June 15, 2007, are ineligible for DACA.

Individuals may request DACA renewal if they continue to meet the initial criteria and these additional guidelines:

1. Did not depart the United States on or after Aug. 15, 2012, without advance parole;
2. Have continuously resided in the United States since they submitted their most recent DACA request that was approved; and
3. Have not been convicted of a felony, a significant misdemeanor or three or more misdemeanors, and do not otherwise pose a threat to national security or public safety.

The renewal process begins by filing the new version of Form I-821D .Consideration of Deferred Action for Childhood Arrivals,. Form I-765 .Application for Employment Authorization,. and the I-765 Worksheet. There is a filing and biometrics (fingerprints and photo) fee associated with Form I-765 totaling $465. As with an initial request, USCIS will conduct a background check when processing DACA renewals.

As a reminder to qualify for DACA initially, individuals must show that they:

1) Came to the United States under the age of sixteen;
2) Have continuously resided in the United States for a least five years preceding the date of this memorandum and are present in the United States on the date of this memorandum;
3) Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
4) Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
5) Are not above the age of thirty.

Only those individuals who can prove through verifiable documentation that they meet these criteria will be eligible for deferred action.
If an individual was already granted DACA, but fails to renew it within one year of expiration, they will need to re-file all over again. If they renew before the expiration of their currently granted DACA request or within one year after its expiration, it will just be the renewal and the individual will just need to show the three renewal criteria listed above.

As always for further and more complete guidance contact my office at 646-253-0516.

The Senate Passes Comprehensive Immigration Reform Legislation

Yesterday June 27, 2013, the Senate took a momentous step forward with a vote of 68-32 in favor of final passage of S. 744, the "Border Security, Economic Opportunity, and Immigration Modernization Act." The comprehensive immigration reform legislation (S. 744) passed by a vote of 68-32 (including 14 Republicans) in the Senate. Now the bill moves its way to the House where it faces many challenges.

The House lawmakers are working on their own version of immigration legislation that varies from S. 744 originally proposed by a bi-partisan group of 8 Senators (4 Democrats and 4 Republicans) called "The Gang of 8" and backed by President Obama, who has made immigration legislation the corner-stone of his second term.

The legislation, if passed, would be the most sweeping overhaul of this country.s immigration system since about the 1980s. The majority of the members in Congress realize that America's immigration system is "broken", but they have differences in opinion as to how to go about fixing it. The House members for the most part prefer a piece by piece approach with various legislations on smaller issues focusing on border security and enforcement, while the Senate is in favor of one major comprehensive reform with a path to legalization of millions of undocumented individuals living in the country today.

Yesterday's vote moves the United States toward a real immigration reform which is so vitally important for immigrant families, businesses, and the entire economy. This vote reflects how far the country has come in understanding the significance of immigration reform to the health and well-being of the nation as a whole. Although the bill faces an uncertain future in the House, it certainly reflects the irrefutable fact that the social and economic benefits of immigration reform are tangible and achievable.

Defense of Marriage Act Struck Down, but Challenges Still Exist

Yesterday, June 26, 2013, the Supreme Court affirmed that there is no constitutional reason for the federal government to discriminate against married couples on account of their sexual orientation. The Justices struck down section 3 of the Defense of Marriage Act (DOMA), which defines marriage as between a man and a woman, noting in their decision, "DOMA's principal effect is to identify a subset of state-sanctioned marriages and make them unequal".

This historic decision means that our immigration system must stop treating gay and lesbian families differently than other families. For far too long, gay and lesbian U.S. citizens and lawful permanent residents have been barred from obtaining immigration status for their noncitizen spouses. As a result, families have been separated and spouses of U.S. citizens and permanent residents have been deported from the United States. With the aftermath of this decision, families can be reunited. Here are some examples of situations that the decision may impact: a United States citizen or Lawful Permanent Resident will be able to sponsor his or her spouse for a green card whether administratively or as a defense from removal; a gay or lesbian spouse will now be counted as a qualifying relative for certain reliefs from deportation such as cancellation of removal or a fraud/unlawful presence/criminal waiver; a person holding a student visa will be able to bring his or her spouse on a derivative student visa, a temporary skilled or non-skilled worker holding an H or an L or any other non-immigrant visa will be able to bring their spouse as a derivative; a person who was granted asylum will be able to file a petition to join with his or her spouse and numerous other situations. Under the immigration laws, these couples cannot simply be partners, they must be legally married in the state or country that recognizes same sex marriages.

President Obama issued an immediate directive to the Attorney General to "work with other members of my Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly".

The Secretary of Homeland Security, Janet Napolitano also issued a statement to the press confirming that DHS is "working with our federal partners, including the Department of Justice, [to] implement today's decision so that all married couples will be treated equally and fairly in the administration of our immigration laws."

In my opinion, same sex married couples will still face many obstacles when it comes to obtaining immigration benefits. Some of these obstacles may be life threatening. For example, a gay or a lesbian spouse may reside in a country where same sex marriage and relationship in general is not only stigmatized and frowned upon, but also illegal and even criminal. Another obstacle that same sex couples will face is providing joint documents that will establish that the relationship is bona fide. Many couples were unable to have joint documents. In short, I think it will take time, but we have certainly taken a major leap forward and applaud the Supreme Court.s decision and the quick reaction of our leaders to this decision.

The United States Supreme Court Strikes Down the Defense of Marriage Act (DOMA)

The U.S. Supreme Court issued a landmark ruling today by striking down the Defense of Marriage Act's (DOMA) provision prohibiting the federal government from recognizing same-sex marriages as unconstitutional. This decision is a major advancement in the LGBT fight for equality to protect their rights.

The U.S. Supreme Court's decision in United States v. Windsor can found here. The decision concludes that "DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment". The decision goes on to state "DOMA's principal effect is to identify and make unequal a subset of state-sanctioned marriages. It contrives to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same State. It also forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect".

The USCIS New York District has been postponing same sex based adjustment of status petitions ever since the Supreme Court case was pending. I assume that it will take some time for USCIS to amend their regulations to start accepting and actually adjudicating the same sex marriage based adjustment of status petitions.

If you are a gay or lesbian immigrant and married to a U.S. citizen, you should certainly consult with an experienced immigration attorney to discuss your rights.

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