Immigration Law

From KatrinaLegalRelief

INFORMATION FOR NON-CITIZENS DISPLACED BY KATRINA & RITA

Contents 1 IMMIGRATION BENEFITS 1.1 Q: I lost all my immigration papers, how do I replace them? 1.2 Q: I lost my work-permit or green card, can I still work legally? 1.3 Q: I lost my documents but can’t afford the filing fees, will you waive them? 1.4 Q: I need to file an application for an immigration benefit and I’ve been displaced by the Hurricane, do I file it in person? 1.5 Q: Do I need to notify CIS that I have been displaced? 1.6 Q: I missed my interview because of the hurricane, what can I do? 1.7 Q: I had a pending court case, what effect has the hurricane had on my case? 1.8 Q: How can I keep myself informed on new services and policies relating to the Hurricane? 1.9 Q: I was applying for status through my wife but she died during the hurricane, can I still immigrate? 1.10 Q: What will happen to foreign students whose school has been affected by the Hurricanes? 1.11 Q: What should students do if they are unable to contact their school? 2 PUBLIC BENEFITS 2.1 Q: What disaster benefits are undocumented immigrants eligible for? 2.2 Q: If an undocumented household member applies on behalf of an eligible family member, will FEMA ask questions about the non-applying individual’s immigration status? 2.3 Q. What categories of immigrants are eligible for FEMA’s Individual and Family Grant Program? 2.4 Q: What categories of Immigrants are eligible for Disaster Unemployment Assistance? 2.5 Q: What categories of immigrants are eligible for Small Business Administration loans? 2.6 Q: What is the definition of “Qualified” immigrant? 2.7 Q: What is a “victim of trafficking”? 2.8 Q: What categories of immigrants are eligible for disaster Food Stamps 2.9 Q: For eligible immigrants, do they have to produce proof of their immigration status in order to obtain disaster benefits 2.10 Q: Are individuals without legal status in danger of being deported if they obtain disaster-benefits. 2.11 Q: If immigrants accept disaster benefits, are they at risk of being considered a “public charge”? 3 Procedural Affect(s) of Hurricane Katrina on ICE and EOIR 3.1 Introductory Note: 3.2 Immigration and Customs Enforcement (ICE) 3.3 Executive Office for Immigration Review (EOIR)

IMMIGRATION BENEFITS

Q: I lost all my immigration papers, how do I replace them?

Local USCIS offices across the country have a supply in hand of the forms necessary to replace immigration papers and will accept walk-in applicants. No INFOPASS appointments are needed but Hurricane victims must identify themselves as such when filing the application at a USCIS office. The USCIS will verify information through their database but bring any documents you may still have with you. Non-Hurricane victims are asked to use the traditional methods of replacing documents (see CIS website).

• To Replace a re-entry permit, travel document, or Advance Parole permission: complete Form I-131.
• To Replace your EAD (work permit ) complete Form I-765.
• To Replace your naturalization certificate complete Form N-565
• To Replace your green card, complete Form I-90 and bring two passport photos
• To Replace your Form I-94 (non-immigrant entry doc) file form I-102

Q: I lost my work-permit or green card, can I still work legally?

You should apply to replace your EAD (work permit) or green card. However, USCIS has suspended the I-9 requirements for 45 days (starting Sep 6, 2005). This means that individuals are not required to present proof of eligibility to work prior to working. This policy will allow you to work while you are waiting for your work permit or green card to arrive.

Q: I lost my documents but can’t afford the filing fees, will you waive them?

Normally, USCIS requires documentation to show inability to pay a fee. However, Katrina & Rita survivors may not have any documentation. USCIS has therefore instituted a policy that it will grant waivers to those who show an inability to pay based on an affidavit or unsworn declaration. Fee waivers will be decided on a case-by-case basis and are discretionary so you should do your best to explain your financial situation.

Q: I need to file an application for an immigration benefit and I’ve been displaced by the Hurricane, do I file it in person?

If you need to file an application or petition for anything other than a replacement document, follow the regular filing procedures. USCIS has not announced what they will do in situations where an individual missed a filing deadline (e.g. missed the I-752 removal of conditional resident deadline). However, it may be a good idea to attach an affidavit with your application explaining that you were displaced by the Hurricane and were therefore unable to file on time.

Q: Do I need to notify CIS that I have been displaced?

All non-citizens are required to file AR-11 each time they move. However, USCIS has hinted that you can wait to file the AR-11 until you are settled in an address you know you will be residing at for at least 30 days. For instance if you are currently in a shelter and looking for a permanent place, you don’t have to file AR-11 listing the shelter as your address. BUT, if you are waiting for communication from USCIS or the Immigration Court, it would be a good idea to submit an address where you can receive correspondence (a “c/o” address).

Q: I missed my interview because of the hurricane, what can I do?

Contact USCIS customer service at 1-800-375-5283 to have them re-schedule your interview.

Q: I had a pending court case, what effect has the hurricane had on my case?

The New Orleans Immigration Court and the Fifth Circuit Court of Appeals closed due to the hurricane. The BIA also suspended work on cases originating from the Hurricane-affected areas. More information will be released in the near future, but most cases will receive new filing deadlines and hearing dates. See the section below on Procedural Effects for more information.

Q: How can I keep myself informed on new services and policies relating to the Hurricane?

The USCIS website at http://www.uscis.gov will maintain information regarding policies and services to displaced individuals. The Department of Homeland Security has information as well. Their website is www.dhs.gov. Several non-governmental agencies also have information on the websites, including: The American Immigration Lawyers Association at http://www.aila.org (includes a means to tracking down displaced attorneys); The Association of International Educators http://www.nafsa.org (information for displaced international students); And The National Immigration Law Center HTTP://www.nilc.org (includes information on state public benefits).

Q: I was applying for status through my wife but she died during the hurricane, can I still immigrate?

Yes, there are laws that pre-date the hurricane that allow individuals to continue their immigration process even if the petitioner has died. The request must be done timely, for instance, widows/widowers of U.S. citizens the application must be submitted within two years of the death.

Q: What will happen to foreign students whose school has been affected by the Hurricanes?

Foreign students should attempt to contact the designated school official (DSO) if available. If the DSO is not available, please contact the SEVIS office at 202-305-2346 or email SEVIS.source@dhs.gov and include date of birth, SEVIS ID# and school information. Foreign students should let the SEVIS officer know if they plan to delay entry until the school is operational, or transfer to another educational institution. New “F” or ”M” students who were unable to contact their designated school will receive a new report date and new I-20 if the school is operational. Students who transfer to a new school should contact the school directly for the new I-20. This particular transfer will not be subject to a new SEVIS fee. Still, students may need to obtain a new visa that indicates the new school. Students will also not have to pay a new MRV fee. SEVIS has detailed information on its website at http://www.ice.gov/SEVIS concerning the following issues: *Transfers *Transcripts *Status concerns *Residence and money problems *Lost documentation *Address changes *OPT issues *Fall enrollment problems *Contact information

Q: What should students do if they are unable to contact their school?

F-1 or M-1 student who are not able to contact his/her school should contact SEVIS.source@DHS.gov or at (202) 305-2346.

PUBLIC BENEFITS

Q: What disaster benefits are undocumented immigrants eligible for?

All immigrants, regardless of status, are eligible for short-term, noncash, in-kind, emergency disaster relief and similar services. Although undocumented immigrants will not be personally eligible for other FEMA benefits, an ineligible immigrant can apply on behalf of an eligible child or other household member who has an eligible immigration status. For example, an undocumented parent can apply for the Individual and Family Grant Program on behalf of their U.S. citizen or child.

Q: If an undocumented household member applies on behalf of an eligible family member, will FEMA ask questions about the non-applying individual’s immigration status?

According to their website, FEMA will not be gathering any information about immigration status in this circumstance. http://www.fema.gov/rrr/dafaq.shtm#0

Q. What categories of immigrants are eligible for FEMA’s Individual and Family Grant Program?

The categories of immigrants eligible for this program are similar to the categories eligible for a variety of mean-tested federal benefits. Immigrants designated under federal law as “qualified” immigrants or “victims of trafficking” are eligible for this program.

Q: What categories of Immigrants are eligible for Disaster Unemployment Assistance?

The categories of immigrants eligible for this program are similar to the categories eligible for a variety of mean-tested federal benefits. Immigrants designated under federal law as “qualified” immigrants or “victims of trafficking” are eligible for this program.

Q: What categories of immigrants are eligible for Small Business Administration loans?

A: The categories of immigrants eligible for this program are similar to the categories eligible for a variety of mean-tested federal benefits. Immigrants designated under federal law as “qualified” immigrants or “victims of trafficking” are eligible for this program.

Q: What is the definition of “Qualified” immigrant?

A: A “qualified” immigrant, as pertaining to prerequisites to obtain certain kinds of federal aid is: Lawful permanent residents, refugees, asylees, persons granted withholding of deportation/removal, conditional entry (in effect prior to Apr. 1, 1980), or paroled into the U.S. for at least one year, Cuban or Haitian entrants, and battered spouses and children with a pending or approved self-petition for an immigrant visa, or an immigrant visa filed for a spouse or child by a U.S. citizen or LPR, or an application for cancellation of removal/suspension of deportation, whose need for benefits has a substantial connection to the battery or cruelty. Additionally, a parent or child of such a battered child/spouse are also “qualified.”

Q: What is a “victim of trafficking”?

A: A “victim of trafficking” is an individual who has been subject to a “severe form of trafficking in persons” as defined by the Victims of Trafficking and Violence Prevention Act of 2000. Severe forms of trafficking include sex trafficking and the forced or fraudulent recruitment, harboring, transport or provision of a person for labor or services that subject the person to involuntary servitude, peonage, debt bondage, or slavery.

Q: What categories of immigrants are eligible for disaster Food Stamps

The federal government is providing disaster-related Food Stamps in two separate ways. First, they are providing one month of Food Stamps to every family that was displaced by the disaster, and second, they have significantly simplified the application process for obtaining three months of benefits. For the first program, state officials are granting one month of Food Stamp benefits to all individuals who lived in a federally-declared disaster area in Alabama, Louisiana or Mississippi who moved either within their state or to another state and who apply by October 31, 2005. There are no other eligibility requirements. Nevertheless, the federal government told states that if the household volunteers information that would regularly render them ineligible (such as stating that they are in an ineligible immigration status or stating that they are a college student not doing work study) the state cannot issue the benefit. For the purpose of the program allowing receipt of three months of benefits, the household will be asked about their immigration status.

Q: For eligible immigrants, do they have to produce proof of their immigration status in order to obtain disaster benefits

In general, the federal government is temporarily allowing state agencies to accept statements as to immigration status, as well as other eligibility factors, without demanding documentation. However, the government is also generally requiring that individuals cooperate with officials in verifying both evacuee and eligibility status. Most agencies are deferring any additional requirements until early 2006.

Q: Are individuals without legal status in danger of being deported if they obtain disaster-benefits.

The answer to this question is complicated. On the one hand, FEMA’s website clearly states that the agency will not be collecting this information. However, in contrast to the reaction of federal officials after September 11th, the federal government has indicated that it could use information collected in the process of providing disaster relief in future deportation proceedings. Joanna Gonzalez, a Department of Homeland Security spokeswoman recently stated that, “[t]he administration’s priority is to provide needed assistance: water, food, medical care, shelter . . . However, as we move forward with the response, we can’t turn a blind eye to the law.” Immigrants who disclose their status to federal officials therefore appear to face some risks.

Q: If immigrants accept disaster benefits, are they at risk of being considered a “public charge”?

No. Accepting disaster assistance will not have a negative consequence on immigration status as long as the assistance is not obtained fraudulently.

Procedural Affect(s) of Hurricane Katrina on ICE and EOIR

Introductory Note:

As of September 27, 2005, ICE (part of DHS) and EOIR (part of DOJ) have been, by all accounts, flexible, but have not provided a great deal of in-writing, concrete changes to the rules and regulations regarding enforcement and litigation that people can rely on to at least some degree of legal certainty. In the ICE and EOIR sections, I have laid out what we have actually been told by the relevant government agency or authority.

Immigration and Customs Enforcement (ICE)

ICE has released a fair amount of information related to the affect of Hurricane Katrina on international students. For background, the Student and Exchange Visitors Program (SEVP) is a division of ICE. SEVP maintains SEVIS (the Student and Exchange Visitors Information System) which is a web-based system to maintain and disseminate information on international students and exchange visitors in the U.S.

[SEVIS] has received numerous questions regarding international students who have been impacted by Hurricane Katrina. ICE has established a toll free number (800-961-5294) for students who are attending a school that is affected by Hurricane Katrina and are unable to contact their Designated School official. Students can also email SEVIS at SEVIS.Source@dhs.gov. (source: ICE website)

As expected, advocacy groups have requested (via petition) that DHS place a moratorium on deportations with regards to the present crisis. As of date of publishing, DHS has not acted specifically on this request and, to date, no such moratorium is in place.

Executive Office for Immigration Review (EOIR)

The Immigration Court in New Orleans is closed until further notice, and thus filings cannot be made there. The BIA has suspended briefing for all cases arising out of New Orleans. (as of Sept. 27, 2005 DOJ/EOIR website reports only that the N.O. Immigration Court is closed and the BIA has suspended consideration for all cases arising out of N.O. – the website promises updates “as warranted.”)

EOIR is working on a uniform policy for filings, and hopes to release something soon. All specific inquiries thus far regarding deadlines affected by Hurricane Katrina have been met with great flexibility and understanding. (source: AILA)