Monthly Archives: January 2013

Senators’ opening bid for Comprehensive Immigration Reform has echoes of past proposals

A day before President Barack Obama is slated to visit the Silver State and deliver a speech outlining principles for Comprehensive Immigration Reform (CIR), a group of U.S. Senators has unveiled its own set of general proposals. Although visible progress is a welcome sign to immigration advocates who thought they may have to wait until spring for any action, the details of what is being proposed are strongly reminiscent of past proposals that have not borne fruit.

Echoing all CIR proposals since 9/11, this one attempts to forge bipartisan compromise by tying any broad-based path to citizenship with “increased enforcement and border security.” Advocates of CIR have often asked in recent years what would satisfy this criterion if 400,000 deportations per year and a decade of constant year-over-year budget increases for enforcement are deemed to have not been enough.

Cheerleaders for CIR can find encouragement in the fact that the Senate is leading the way — although the political makeup of the Senate is arguably less conducive to passing a broad package of reforms, it also has higher procedural hurdles for advancing legislation. The most recent effort to pass immigration law reform — approval of the DREAM Act to offer relief to young undocumented immigrants — died in the Senate after failing to overcome a filibuster. Similarly advocates should be optimistic that broad principles are being introduced and a path to citizenship for all of the estimated 11-12 million aspiring citizens is on the table — some advocates had worried that only a piecemeal set of small reforms could pass both houses of Congress and that some groups might be left out. Finally, it is obvious that the political environment is different in 2013 than it was throughout President Obama’s first term: on this issue perhaps less so because he is a re-elected president who is seen as deserving to implement his mandate and more because the Republican Party desperately wants to make a viable bid for Latino votes in 2014 and beyond.

But the news is not all cheery when seen through a political handicappers eyes. First, the community of immigration advocates, aspiring citizens, and their families should know now that power players in Washington posturing toward a goal does not guarantee that said goal will be realized. The proposals being ballyhooed today are very similar to those put forth in prior Congresses dating back half a decade or more and changes in the electorate, where they have occurred, are arguably more stepwise than sweeping.

Some of the familiar ideas in this proposal include:

  • More border security including the use of drones to patrol the borders and a promise to provide Customs and Border Protection with the tools and resources it needs to “apprehend every unauthorized entrant;”
  • A path to Permanent Residence for aspiring citizens who pay fines and back taxes and pass a background check;
  • Expansion of high-skill work visas such as the tiny number in the H-1B category;
  • Provisions for an accelerated “alien entrepreneur” residency for job creators;
  • An improved system for employment authorization verification; and
  • Some form of guest worker program

Among the new approaches in this proposal are:

  • An explicit “enforcement-first” approach that would rely on approval from a new commission of governors rather than the usual rhetoric of “we have to secure the borders before we discuss legalization”; and
  • A new system for proactively tracking exits from the country to prevent overstays of temporary visas (one study finds that 38 to 50 percent of all unauthorized immigrants overstayed their visas).

Finally, there are a few potential poison pills in what is being proposed:

  • The enforcement-first approach is engineered to provide political cover for both sides if negotiations break down or bills fail to win approval — one political party can point to concerns over border security and the other can score political points by highlighting its rival’s intransigence;
  • We again see the notion that those currently out of status must “go to the back of the line,” but it is unclear precisely what is meant by this. For some visa categories (see the recent Visa Bulletin here) the “back of the line” is a far-flung place 16, 19, or even 23 years in the past.
  • Universal employment authorization — many observers say that to truly achieve robust, universal employment verification the U.S. would have to implement a national identification card that every authorized worker would bear. Such a proposal faces staunch opposition from civil liberties advocates from both ends of the political spectrum.
  • Ours is still a bicameral legislature, and any proposal must appeal not only to a handful of Republican Senators but also to enough Republicans in the House to make it to a vote and survive. The attitude that the Republican Party must moderate its policies if it is to survive is not one that is universally held.

All in all, we have this week signs of progress but nothing upon which to make firm plans or even friendly bets. President Obama will weigh in when he visits Las Vegas tomorrow and we will continue to keep an eye on these developments.

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Filed under Advocacy, Enforcement, Immigrant Rights, Legalization Process, National News, Uncategorized, Undocumented Immigrants

BREAKING : group of Senators to reveal blueprint for immigration reform

At this hour the New York Times is reporting that a group of senators is set to unveil a set of principles for this year’s bid for Comprehensive Immigration Reform. We will provide some analysis of these broad principles shortly and update our commentary as details emerge later today.

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A possible loophole in I-601A rules

We will have to see how this develops as USCIS clarifies and revises its guidelines, but it appears there may be a loophole — albeit an expensive one — for families hoping to use the new I-601A process despite having already reached a crucial point in the consular interview process.

A big disappointment with the Final Rule is that it maintains the mostly senseless and seemingly unjust stipulation that anyone whose immigrant visa appointment was already processed for scheduling as of January 3, 2013 is shut out of the I-601A process. This seems to make things easier for DOS and USCIS at the cost of penalizing the most proactive applicants.

The prelimiary publication in the Federal Register reads:

An alien who is ineligible to apply for a provisional unlawful presence waiver because of a previously scheduled immigrant visa interview may still qualify for a provisional unlawful presence waiver if he or she has a new DOS immigrant visa case because 1) DOS terminated the immigrant visa registration associated with the previously scheduled interview, and they have a new immediate relative petition; or 2) the alien has a new immediate relative petition filed on his or her behalf by a different petitioner.

What this seems to meanĀ is that an individual who had already reached the consular interview stage may choose to let his or her case and petition lapse and then re-file a new I-130, pay new fees to the National Visa Center, and then proceed with an I-601A process without leaving the U.S.

We are thinking in particular of one family that we are working with. “Alfred” is a national of Mexico who entered the United States without inspection. He has never left the country, he has a completely clean criminal record, and he is married to a U.S. citizen and they have three U.S. citizen children. When Alfred came to us, he had an approved I-130 petition and he wanted help completing the rest of his consular interview process. We finished those steps in late 2011 and then in January 2012 came the first mention of the new I-601A process. As we awaited a final rule on this process, Alfred’s consular interview came and went — he did not attend it and hoped that the I-601A process would offer him a way to gain lawful status without an unpredictable separation from his family.

Alfred cannot afford to be apart from his family for unknown months and years. He is the sole provider for his family, and his wife is not able to work. Alfred is instrumental to the wellbeing of these four U.S. citizens, and even though he has a strong case it is by no means guaranteed that he would be able to return to the U.S. quickly enough to prevent the family from suffering gravely without him. The I-601A process would allow Alfred to request a provisional waiver, gain pre-approval, and then depart the U.S. for a few days or weeks before returning to the U.S. as a Permanent Resident.

In Alfred’s case, the rules have been written in a way that leave him on the sidelines. He might choose to continue with the traditional I-601 waiver and accept the difficulty this will cause his family. Or, if this “loophole” is valid, he might choose to cancel his pending case and re-file a new one. Re-filing will come at a cost of nearly $1,000 in new filing fees, but it might be worthwhile for him.

We will await further clarification on this point from CLINIC, ILRC, and USCIS among other entities. Does the rule mean to distinguish a case in which “DOS terminated registration” from one in which the applicant chooses to have the case lapse? The language cited above is also clearly intended to permit individuals to pursue an I-601A despite having an old case pending through a previous petitioner.

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Filed under Family-Based Immigration, Undocumented Immigrants

Tip of the hat to DOS for I-601A heads-up messages

A quick word of thanks to the U.S. Department of State and the National Visa Center for its efforts to proactively identify individuals who may qualify for the new I-601A provisional waiver process.

Click here to see an example of what this letter might look like.

Anyone who has a pending case with the National Visa Center should contact them to ensure that all contact information (including physical mail and email) are current and accurate. Keep an eye out for a letter like the one above, and be sure to consult with a reputable immigration attorney or a BIA-accredited representative for more information.

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Filed under Family-Based Immigration, Undocumented Immigrants

USCIS Final Rule on family unity waivers is modest improvement over prior version

To put a light spin on an important topic, the Final Rule from USCIS on the I-601A family unity waiver roughly says, “We hear what you’re saying, and the answer is no.” [If you don’t get the reference, see this skit.]

According to USCIS, the regulatory agency received some 4,000 comments on its proposed rule between April and June 2012. (Our advocacy efforts alone yielded nearly 200 of these comments. You can see our explanation of what the new I-601A process means here.) In their publication in the Federal Register (preliminary version here) USCIS shows that they carefully considered the input of these thousands of commenters and ultimately decided to reject most of their suggestions.

We don’t mean to suggest that these decisions were not without merit, but the result is a disappointment for immigration advocates and undocumented immigrants and their families. Mostly unchanged from the Proposed Rule last year, these are the requirements to qualify for I-601A, ApplicationĀ for Provisional Unlawful Presence Waiver:

> Applicant must have an approved I-130 (or I-360) petition filed by his/her U.S. citizen spouse (or parent, if the beneficiary is unmarried and under age 21). DHS declined to expand the I-601A process to include preference immigrants (visa categories F-1, F-2A, F-2B, F-3, or F-4).

> The immigrant visa case must have advanced to the National Visa Center stage, and the Department of State filing fees must be paid, but the Department of State may not have initiated scheduling of a consular interview.

> Applicant must not be in removal proceedings unless proceedings have been terminated, dismissed, administratively closed and not re-calendared, or the NTA has been cancelled.

In order to obtain approval of an I-601A, the correct fees must be paid and the applicant must show extreme hardship to the qualifying relative(s) in order to obtain approval of the discretionary waiver. USCIS has clarified that there will be no fee waiver for the I-601A. Other technical considerations also apply but they affect only a small number of individuals in specific circumstances.

The major disappointments here are that the process will not be available to preference-system immigrants and that individuals who already had their immigrant visa appointments scheduled (that is to say, who already had things in process when this proposal was announced) will be barred from this beneficial process.

The good news is at least trifold:

(1) this process will take effect March 3, 2013 and stands to help thousands of families resolve immigration issues without unpredictable family separation;
(2) USCIS has changed its rule and will permit individuals to file multiple I-601A applications even if prior applications are denied; and
(3) USCIS has shown openness to expanding the process to family preference immigrants “after assessing the effectiveness of the provisional unlawful presence waiver process and its operational impact…”

This is all directly from USCIS, but the Final Rule will not be published until tomorrow. We will keep you posted as new clarifications emerge.

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Filed under Advocacy, Family-Based Immigration, Undocumented Immigrants

BREAKING: USCIS unveils final rule on I-601A provisional waiver process

Earlier today USCIS announced that it will publish a final rule tomorrow (03.Jan.2013) detailing the new provisional waiver process. We provided some preliminary information about this proposal earlier this year during other coverage of the I-601A provisional waiver. A pre-release version of the rule is available here.

We will continue to monitor this exciting development as new details emerge. USCIS will likely be holding informational conference calls in the coming weeks.

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