Category Archives: Family-Based Immigration

Rough outline of Senate immigration reform gives answers, raises questions

The Twittersphere has been abuzz today with news of all flavors including updates on the tragedy in Boston. Those events have caused the U.S. Senate’s “Gang of Eight” to postpone their scheduled press conference on their compromise immigration legislation, but a rough outline of the proposal has been circulating on the Internet. Below we highlight some of the elements that are most important for our clients.

The document is very much a rough draft and further clarification will be needed to understand what is meant by some proposals. Moreover, it is the case that whatever is being proposed in this document is only an opening bid. The U.S. Senate could amend this legislation before passing it, and the House of Representatives will also weigh in with its own proposal. Final legislation would have to represent a merger of those two ideas.

Here are some key highlights as we understand them:

  • Attainment of Lawful Status

The outline describes a new status for undocumented immigrants known as Registered Provision Immigrant (RPI). To qualify for RPI status one must have been physically present in the U.S. prior to December 31, 2011 and continuously since then. One cannot be inadmissible for criminal, national security, public health, or “morality” grounds and cannot have criminal history that includes a felony, federally defined “aggravated felony,” 3 or more misdemeanors, any foreign conviction, or who has unlawfully voted.

To attain RPI status one would have to pay a $500 fine and “assessed taxes” in addition to any processing fees.  The status would be renewable in six-year increments with a $500 fine each time. Individuals would have one year from enactment to file for RPI status (possibly extended to two years).

RPI status would also be available to individuals who were deported for non-criminal reasons prior to December 31, 2011 if they have family in the United States. It is unclear what this means for individuals deported after December 31, 2011 – they seem not to qualify for either version of RPI.

  • Merit-Based System/Visa

All RPI individuals will have to adjust status to Lawful Permanent Residence through a “Merit-Based System” that takes into account an applicant’s education, employment, and ties to the country among other factors. Between 120,000 and 250,000 merit-based visas would be allocated per year. The terms “Merit-Based System” and “Merit-Based Visa” are both used and it is unclear if these are different concepts or the same thing called by different names.

This pathway to citizenship would not open until border security measures have been deemed successful, existing family- and employment-based backlogs are cleared, and applicant must have been in RPI status for ten years, have paid taxes and worked regularly, demonstrate knowledge of U.S. civics and history, and pay a $1,000 fine.

It is not explicit in the outline but potentially individuals could obtain RPI status for a time and then utilize another aspect of the immigration system (e.g. the traditional family-based system) to obtain Permanent Resident status.

Conflicting language is used regarding the relationship between the Merit-Based System and the options for DREAM Act and AgJOBS immigrants. Do they get their own path or will they enter the Merit-Based System?

  • DREAM Act and AgJOBS

The outline refers to the DREAM Act but does not explain which version of that proposed legislation would be used. DREAMers would become eligible for Lawful Permanent Residence after five years in RPI status and could immediately naturalize as U.S. citizens.

The proposal also absorbs the AgJOBS legislation permitting undocumented farm workers to obtain an Agricultural Card. The specifics of this Card are not available in great detail. To qualify one would have to pay a $400 fine, pay assessed taxes, and have a clean criminal history. After five years in AgJOBS status individuals could adjust status to Lawful Permanent Residence.

  • Family-Based Immigration

The outline states that it will clear out the backlog of family-based immigration but it is not clear if this will be done by increasing visa levels or by simply closing the line and letting time run its course. No new F-4 (siblings of U.S. citizens) applications will be accepted 18 months after the law is enacted. The current F-2A category will become part of the immediate relative category, and the IR category appears to be expanded to include derivatives of IRs. The F-1, F-2B, and F-3 categories will be reshuffled in ways that are not entirely clear but which appear to make use of the V Visa (permitting certain individuals to live and work in the U.S. while they await visa availability) and which cut off future immigration of married sons and daughters who are over the age of 30.

Turning F-2A individuals into IRs and retiring the F-4 category will help clear the backlog and these newly available visas will be shared among employment- and family-based categories. It is not obvious how the math would work out and if these measures alone (as opposed to raising the visa caps) could clear the backlogs in 10 years or less.

  • The Border Trigger

Six months after enactment of the legislation, two related border security policies must be created and begun. No undocumented individual may receive RPI status until these policies are in effect. Successful implementation of these policies will also be a requirement before RPI individuals (other than DREAM or Agricultural workers) can obtain Lawful Permanent Residence. The outline also authorizes billions of dollars in expenditures to increase border surveillance, speed up removals at the border, create a multi-layer border fence, and for other border security measures.

  • E-Verify

The use of E-Verify would become universal over a five-year period. All non-citizens would be required to retain a biometric-based employment authorization document in order to seek employment. U.S. citizens could use U.S. passports or state driver’s licenses for proof of employment authorization (as long as those state DMVs share photo-capture information with DHS).

  • High-Skill Labor

The outline scraps the existing Diversity Visa system that permits immigration from historically underrepresented countries and in its place increases opportunities for high-skilled workers and entrepreneurs. Caps on H-1B visas will be tweaked to make them more fluid to match labor conditions and to cut down on abuse. H-1B visas could nearly triple over time. Those who come on student visas for bachelor’s degree or higher programs will receive dual-intent visas (making it easier for them to choose to live permanently in the U.S.).

  • Low-Skill Labor

A guest worker program (the W Visa) will be created for individuals who live in a foreign country to come to the United States to work for three years at a time. Such individuals could bring their spouses and children with them and travel would be permitted. Principal W Visa workers may not be unemployed for more than 60 consecutive days but they may seek other job opportunities as well as promotions to higher-skill positions after 1 year with an employer. Employers who seek to have W Visa workers must comply with a registration process that must be renewed every three years. The registration process is meant to prevent unscrupulous or abusive employers from using W Visa workers. Policies would attempt to prevent W Visa workers from lowering the wages of native workers and to prevent W Visas from being over-represented in the construction industry.

 

More than anything, this outline feels like a catharsis. Observers have been pent up for months watching and waiting to see what the pathway to citizenship and overhaul of immigration policy may look like, and now we have a start to that conversation.

Many questions remain, among them:

How will business and labor interests receive the news of the W Visa, the tweaks to the high-skilled labor force, and the overhaul of temporary agricultural workers?

How will immigration advocates receive the requirement that most undocumented individuals wait 10+ years, master English and U.S. civics, and prevail in a competitive points-based system in order to attain lawful immigration status?

How will the public view the new approaches to employment- and family-based immigration?

Will the availability of waivers be expanded to cover the many circumstances not provided for in this draft legislation?

How can skilled immigration practitioners navigate between existing and new systems to help clients attain lawful immigration status, reunite families, and move forward on a pathway to citizenship?

As details emerge and answers to those questions reveal themselves we will keep our readers appraised.

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Visa Bulletin advances, opens door closed since 2001

A technical but important event occurred earlier this month when the upcoming April 2013 Visa Bulletin was released. For many Central Americans who have been waiting patiently since 2001 for the opportunity to gain lawful immigration status, the release of this document has unlocked a door that has been closed to them for over a decade.

Some of our readers may be familiar with adjustment of status under Section 245(i) of the Immigration and Nationality Act. Section 245(i) is important because it offers an alternate path to adjustment of status (“fixing your papers within the USA”) even if the applicant entered the country without permission, even if s/he worked without authorization, and even s/he entered with a visa which s/he overstayed or violated.

Section 245(i) was created in the 1990s but many potential applicants did not take advantage of it. The window for using this process was extended in the late days of the Clinton administration and included a filing deadline of April 30, 2001. Applicants pay a fine of $1,000 in order to utilize this alternate process, but they (like all visa applicants) must wait for a visa to become available.

That wait is not insignificant — it can take years and years, even ten, 15, or 20 years for a visa to be made available. In fact, what makes the April 2013 Visa Bulletin significant is that it reflects the first time* that the F-4 category (visas through U.S. citizen siblings) has been available to countries such as El Salvador, Guatemala, Honduras, and others for applicants with the filing date of April 30, 2001.

The largest group of undocumented immigrants — from Mexico — still have a long wait before that fabled period of early 2001 reaches current visa availability. Mexico’s visa line is still so far backlogged that visas in the F-4 category are only available for applicants who filed prior to September 1, 1996. You can review the April 2013 Visa Bulletin here.

When our conversation centers on the requirement that undocumented individuals “get in the back of the line,” it is important to remember what that means. For thousands of long-patient applicants from Central America, the back of the line has finally reached fruition.

* A note: visa availability for these categories actually came available in late 2010 but quickly retrogressed because the Department of State realized that it had moved the line forward to aggressively. Most individuals who filed for their visas during this period had their cases processed and then held in abeyance. Approval notices and interview notices for eligible cases on hold from this period are being issued now.

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In Obama’s latest CIR proposal, observers see politics as usual

Over the weekend draft legislation to implement comprehensive immigration reform “leaked” from the White House, ostensibly tipping the hand of the recently re-inaugurated president as Congress begins to tackle a massive and massively controversial issue. Sen. Marco Rubio (R-FL) and other Republican spokespersons immediately denounced the proposal as unrealistic and partisan, but it was harder to tell what lines of distinction could be drawn between competing proposals. But some observers aren’t buying that story line and argue instead that this is just part of the political theatre needed to secure passage of CIR.

A condensed version of this theory is as follows: in the wake of the 2012 elections there is bipartisan agreement that immigration reform must move forward, but anything that appears to belong to President Obama is anathema to certain political elements on the political Right. Also while mainstream Republicans may support CIR their most conservative supporters may not tolerate a path to citizenship for those who are presently in the country without permission. Therefore the agenda of CIR can be advanced best by having the president float a proposal so these political elements can denounce it and replace it with other legislation that ultimately prevails.

It is an intriguing way to frame this discussion, and it is a theory that seems to be on the minds of some of Washington’s savviest observers. It also ascribes an impressive leadership quality to the president: that he would be willing to draw political fire on a proposal with his own name on it in order to clear the way for others to reach consensus and then propose a “middle of the road” proposal as antithesis to the president’s plan.

Overall the debate has hardly shifted: leading proposals are that, contingent on “increased border security,” a path to citizenship will be opened to some 11 million undocumented individuals by means of a combination of speeding up existing visa waits and issuing pre-Permanent Resident visas (possibly to be called Lawful Prospective Immigrant status) for a period of years. Additionally the employment-based immigration system would be overhauled to create more high-skill visas and a functioning guest worker program.

We’ll have to see how this debate unfolds. There are whispers that legislation may be on the table as early as early March.

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Alien smuggling could be barrier to new family unity waivers

We previously shared some initial thoughts on the “Gang of 8” U.S. Senators who unveiled a framework for comprehensive immigration reform (CIR). Most observers know that in the days since both President Obama and the House of Representatives have identified their own starting points for such a discussion. The national debate is taking shape with hearings and many major issues remain up in the air. It will be an exciting and important few months to come.

In the meantime, immigrant families and the advocates who try to shepherd them safely through a complex and often changing web of immigration laws are digesting what new policies such as Deferred Action for Childhood Arrivals (DACA) and the new Provisional Unlawful Presence Waiver (PUPW) have in store. These policies will matter in the interim and if CIR again comes up short this time around these policies will remain some of the most important tools in practitioners’ toolboxes.

One major disappointment of the Final Rule on PUPW was the administration’s decision to not permit individuals with inadmissibilty other than that arising from § 212(a)(9)(B) to utilize the new I-601A process. Our program and clients submitted two hundred comments among several thousand and advocated for consideration of waivers for other grounds of inadmissibility. This seemed fair because most waivers share the “extreme hardship” standard for overcoming § 212(a)(9)(B) or even use a lower standard of proof such as “family unity”; therefore a case that passes muster for waiving unlawful presence inadmissibility should also suffice for other problems.

It would have been understandable for USCIS to draw a line between unlawful presence (a relatively innocent inadmissibilty) and inadmissibility based on fraud or criminal convictions. But instead USCIS chose to draw a single, bold line with unlawful presence on one side and everything else on the other. Therein lies the problem.

Drawing from anecdotal experience, USCIS has recently ratcheted up its screening for an often-overlooked ground of inadmissibility: § 212(a)(6)(E) for alien smuggling. While the words “alien smuggling” smack of human traffickers and hard-nosed coyotes who help unauthorized immigrants to cross the border, the definition also includes families that travel across the border together. Here’s the statutory language:

Any alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is inadmissible.

This is a very broad definition of “alien smuggling” and the only exception is for certain individuals who were in the United States in 1988, prior to the passage of the Immigration Act of 1990. There is a waiver available, however. Here’s the relevant language:
 

[The government] may, in [its] discretion for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, waive application of [the alien smuggling rule] in the case of [certain Permanent Residents] and in the case of an alien seeking admission or adjustment of status as an immediate relative or immigrant under section 203(a) (other than paragraph (4) thereof), if the alien has encouraged, induced, assisted, abetted, or aided only an individual who at the time of the offense was the alien’s spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.

That’s quite a mouthful. Here’s what it means: if you are seeking an immediate relative visa you can also seek a waiver (with a low hardship standard) if you are inadmissible for alien smuggling and the person who you helped enter was your spouse, parent, or son/daughter.

In practice, these waivers are something of a formality. In fact, this rule seemed to have been forgotten about until recently, and we have seen a spate of cases being flagged for potential alien smuggling. Even where the case is so flagged, the hardship standard is so easy in most cases that it just adds a short delay to the overall process.

But here’s the snag — § 212(a)(6)(E) inadmissibility is not § 212(a)(9)(B) inadmissibility, and therefore individuals who entered the U.S. without permission and brought with them spouses or minor children are not eligible for the new opportunities offered by the I-601A process. In our experience this is frequently the case, and it is disappointing to explain to a client that this new opportunity — which USCIS acknowledges is intended to help families remain together throughout the process — is just out of reach because of an old, historically overlooked rule.

We will keep an eye on this issue to see if it presents in practice the headaches that it promises in theory.

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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 mean 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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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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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, Application 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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