By P. Elizabeth Wittemyer, Esq.
As President Obama considers acting by executive action on immigration laws, it is important that those who may benefit be prepared. While any action that the President takes will not be a permanent change to immigration laws, only Congress can change those laws, executive action could defer prosecution of a target group of undocumented immigrants by giving them Deferred Action for a period of time, allowing them to stay and work in the United States.
While it is not yet known who will qualify, we can look to an earlier executive order granting Deferred Action for students brought to the United States as children in order to determine what may be some of the requirements for obtaining immigration benefits under a new executive action.
First, anyone applying will have to have a qualifying immediate relative who already holds Permanent Resident Status (Green Card) or is a United States Citizen. The indications are that the new executive action will target the parents of citizens and legal permanent residents.
Second, anyone applying will have to have a clean criminal record or prior convictions that do not disqualify them. This is very important as the student Deferred Action added minor misdemeanors as disqualifiers, including DUI's. In general, any crimes involving drugs and alcohol, crimes of violence, domestic violence, crimes involving moral turpitude such as theft and felonies will make someone ineligible to apply. Therefore, it is critical that anyone charged with a crime seek aggressive criminal defense representation and to obtain advice regarding the immigration consequences stemming from the criminal case. The District Attorneys and Judges are not there to represent defendants in criminal cases, nor will they give them specific advice regarding immigration consequences, therefore it is incumbent on you to defend yourself with experienced, competent and aggressive counsel.
Third, anyone applying will need to show that they have paid taxes. Any person can apply for an Individual Tax Identification Number (ITIN), even if they are undocumented. The IRS is not a reporting agency to the United States Citizenship and Immigration Services (USCIS or Immigration) as they want everyone to pay taxes, whether documented or not, so paying taxes will not expose someone to deportation. An ITIN can be obtained for anyone that is filing taxes or for a person who is a dependent and you are declaring on your tax form, such as a child, even if they live abroad. Once the person gets legalized or otherwise becomes eligible for a social security number, the ITIN number will remain the same and become the person's social security number.
While the requirements of any new executive action are yet to be determined, be prepared. Our experienced team at Feldmann Nagel Cantafio Margulis Gonnell PLLC, is ready to assist you as you seek legal advice, defend any criminal actions and pay taxes in order to benefit from any new immigration relief.