Musings on Immigration

Our Globally Recognized Team of Immigration Lawyers Sharing Knowledge and Providing Counsel on Immigration Issues that Affect You, Your Business and Your Family

The Proposal: Fact or Fiction?

Last weekend’s highest-grossing film at the box office was the new rom-com from Buena Vista Pictures “The Proposal,” starring Sandra Bullock and Ryan Reynolds. Bullock plays Margaret, the big-bad-book editor-boss (think Meryl Streep in “The Devil Wears Prada” but 20 years younger and sans the signature “that’s all” line) from Canada who blackmails her tail-between-his-legs assistant (Reynolds) into marrying her in order to escape her deportation order.

From an immigration perspective, there are several aspects of the film that are just laughable. “Immigration” is still referred to as “INS.” Mr. Adjudicator follows the happy couple all the way from New York City to Alaska in order to expose their fraudulent marriage (he must be operating under a different budget than the “real INS”). And the best, by far, was when Ms. Margaret and her “fiancĂ©” marched down to the USCIS office in Federal Plaza on a Friday afternoon, jump line, and are granted an interview for the following Monday (and I thought USCIS had made great strides getting wait times down to about four months!).

There was absolutely no accuracy to the representation of the immigration process for a family petition. However, while not the primary focus, the film touches on a huge problem in the US immigration system: people entering into fraudulent marriages for the purposes of immigration benefits. I’m sure at some time or another, we’ve all suspected a client of entering into a marriage with “ulterior motives,” but do we ever stop to consider why this is becoming a trend? In an immigration system that allows so few options for people seeking relief – be it economic, social, religious, or political relief – many turn to marriage fraud as a last resort. Because, if you think about it, at the very worst, you get sent home anyway, and at the very best, you get a shot at the American Dream. And for folks coming from faraway places with zero economic opportunity, rocky political climate or lack of freedom, pretty much any risk is worth taking to avoid a one-way return ticket.

The film is lighthearted in nature, but hopefully it will also bring to light some of the issues that this country needs to seriously address – and SOON. There must be more legal avenues through which to immigrate. There must be a greater number of visas allotted for workers in order to accommodate our 21st century economy. And there must be greater humanitarian considerations in the adjudication process. Perhaps if we can work towards these changes and reforms, we will see less instances of fraud and more instances of legitimacy; less instances of undocumented workers being exploited and more instances of companies paying everyone a fair wage; less instances of divided families and more instances of unification. For book editors or busboys, the system has to work for everyone, but first and foremost, it has to WORK.

Senator Schumer and Immigration

Okay, the opening salvo is fired. Senator Schumer has announced the starting point of this year’s immigration reform debate, kind of. In an article in the Washington Post, Senator Schumer has outlined what he sees as the baseline of immigration reform. Spencer Hsu, of Washington Post reports that Schumer sees immigration reform:

requiring that an estimated 12 million illegal immigrants register with the government and “submit to a rigorous process to convert to legal status” or face immediate deportation. [The][l]egislation must also create mechanisms to attract high-skilled immigrants, control the flow of low-skilled immigrants and protect native-born workers.

Senator Schumer is calling for a National ID card (something to displease everyone):

Schumer’s proposal for a national “biometric” identification system to verify work documents — based on fingerprints, iris scans or digital photographs –stems from a key weakness of past immigration overhaul efforts . . . .

and omits a temporary worker visa program. Both of these elements will be key discussion points for the overall package of immigration reform that kicks officially tomorrow with a meeting at the White House between President Obama and key Senators and Congressman.

What does Senator Schumer’s position statement, and the meeting tomorrow at the White House mean? First, and most importantly, it means the debate has begun. There is no going back now without loosing face, prestige, and likely more importantly, the support of millions of Latinos.

Second, it means we have a lot of work to do. We do not agree with all these positions, there is more to be done. We have to help shape this package and beat back some of the awful and hateful baggage that anti-immigrationists will try to add to it. We have to call, write, visit, cajole, argue, blog, twitter, march, protest and demand proper immigration reforms. We cannot allow what happened in the summer of 2007 (a closed door, back room deal with no negotiation from people who actually knew and understood the law). Now is the time to get the emails out and the fax machines moving. We will be sending out alerts to notify folks about what they can do to effectuate change.

Finally, Senator Schumer’s comments today mark the official transition from Senator Kennedy to Senator Schumer as the water carrier on immigration reform. While we may not agreed with Senator Schumer on all aspects of his ideas for immigration reform, it is important to thank him for having the political courage to move this debate forward. Senator Schumer, Thank You! Hopefully, other Senators will get on this train and help drive it forward to a successful CIR Bill we can all support.

New Options for Surviving Spouses of US Citizens

A marriage ending in the death of the US Citizen spouse before the two-year anniversary has, in the past, translated into “sayonara,” for the immigrant spouse and their minor children. However, Department of Homeland Security Secretary Janet Napolitano recently issued a memorandum granting deferred action to these widows and their qualifying children. The memo outlines different policies depending on where these surviving spouses are in the immigration process, demonstrating that Secretary Napolitano will be a valuable component of a reform package that will, hopefully, make great strides towards humanitarian relief in the US immigration system.

The new memo is sort of like 31 Flavors in that there’s something for everybody. For instance:

If the Form I-130 (Immediate Relative Petition) has been approved prior to the death of the US Citizen spouse, the surviving spouse may request reinstatement of the petition, which, by law, is automatically revoked. US Citizenship and Immigration Services can use its discretion to grant any reinstatement based upon the humanitarian considerations of the particular case. From there, the surviving spouse may proceed to the adjustment of status process (if they are in the US) or the consular processing stage (if they are outside of the US).

If the Form I-130 is pending at the time of the death of the US Citizen spouse, the petition will be held in abeyance, along with any concurrently filed Form I-485 (Application to Register for Permanent Residence). In the meantime, the surviving spouse is eligible for interim benefits, such as advance parole or an Employment Authorization Document.

If the Form I-130 was denied before the issuance of the new memo due to the death of the US Citizen spouse, the surviving spouse may now request deferred action by filing a Form I-360 (Petition for Amerasian, Widow or Special Immigrant).

If Form I-130 was not filed prior to the death of the US Citizen spouse, but the pair were legally married, the surviving spouse may also request deferred action through the filing of Form I-360.

The validity period for the deferred action is two years from the grant of Form I-360, making this just another ticking time bomb in the arsenal of immigration issues that must be reformed and resolved sooner rather than later.

A “Widow” Relief Goes a Long Way

On June 9th, U.S. Department of Homeland Security Secretary Janet Napolitano announced a reformed policy of granting “deferred action” for two years to widows and widowers of U.S. Citizens, as well as their unmarried children under 18 years old, who are living in the U.S. and who were married for less than the required to years when their U.S. Citizen spouse died.

Under current U.S. immigration law, immigrants applying for Lawful Permanent Resident status and other immigration benefits through marriage to a U.S. Citizen must be married for two years in order to receive these benefits. However, when a U.S. Citizen spouse dies before the two-year mark, the petition for their alien relative dies with them, leaving the alien spouses to face not only the heartbreak and grief of losing a spouse, but the harsh reality of having to leave behind their lives in the U.S. and return to their home countries. This new policy of deferred action does not resolve the surviving spouse’s immigration status, but it does suspend removal proceedings against them, and offers them the opportunity to apply for employment authorization if they can prove economic necessity.

Additionally, Secretary Napolitano also ordered the suspension of the adjudication of visa petitions and adjustment applications filed for the widow or widower where the death of the U.S. Citizen spouse before the two-year mark was the only purpose for the reassessment of their status. Immigration and Customs Enforcement will not initiate or continue removal proceedings, or execute final orders or removal against these widows and their minor children. What’s more, U.S. Citizenship and Immigration Services will start to favorably consider requests for humanitarian reinstatement of previously approved petitions that were revoked because of the two-year rule.

While it is clear that these measures are not a permanent fix for our nation’s broken immigration system, they are a giant step in the right direction and demonstrate not only Secretary Napolitano’s intent to work for reform, but also the administration’s recognition of need to overhaul the U.S.’ archaic immigration laws and establish a more humanitarian system that puts families first.

Another Month, And No Movement Toward Reform.

As many regular readers of this blog know, I am impressed by the amazing work of Vivek Wadhwa, research associate at Harvard, and an entrepreneur in residence at Duke. This week his most recently published article, The University Of Competition, in Outlook India, points out the obvious–”with its flawed immigration policies, the U.S. has exported part of its economic stimulus and is providing a windfall of premium talent to these countries (India and China).”

Vivek also appeared in a NPR’s Marketplace segment on how sophisticated engineering jobs are disappearing from the U.S. and moving to India. The report by Janet Babin starts with an unemployed Silicon Valley engineer and ends with Wim Elfrink – Cisco’s Chief Globalization Officer who is based in Bangalore. In that piece, Vivek discusses how the world has changed and how companies now need to be near growth markets.

This pieces and other recent pieces show that plodding ideas about commissions and study groups to recommend visa numbers are relics of a past age. The question is, will Congress act quickly enough on immigration reform to actually make a difference in helping our economy recover. Every immigration lawyer knows these simple truths–lazy people do not walk across the desert. And, its corollary–the Hope that is American attracts those willing to work hard to succeed. Well, the former principle is still true, at least for now. The latter is giving way to hopelessness–backlogged visa numbers (”encased in amber”), and a growing and vibrant economy in China and India. The failure to act quickly is going to cost America in the long run. Let’s pray someone in the White House and on Capitol starts this immigration reform discussion moving before it is too late.

DHS Establishes Relief for Widows of U.S. Citizens

Finally, the U.S. Department of Homeland Security (“DHS”) is making smart decisions in favor of helping immigrant families and recognizing the emotional aspect of ensuring family unity here in the United States! The Secretary of the DHS, Janet Napolitano, issued a decision on June 9, 2009, granting deferred action for two years to widows and widowers of U.S. citizens, as well as their unmarried children under 18 years old, who reside in the United States and who were married for less than two years prior to their spouse’s death. Although there is not yet any legislation amending the definition of “immediate relatives”, but this is certainly a step in the right direction.

Furthermore, the Secretary also confirmed that she will halt all reassessments of adjudications of immediate relative petitions and adjustment applications where the sole purpose is to issue a denial based on the death of the USC petitioner. She has also advised that DHS will not be initiating removal procedures or executing final orders of removal for the same category of individuals.

Even more encouraging is the fact that this advisory applies to both those who had a petition filed on their behalf, as well as those who never had anything filed before the death of their immediate relative.

This is wonderful news and a huge step in the direction of making sensible changes to the existing laws. It is only a matter of time until the Immigration and Nationality Act is amended to statutorily allow widows of deceased U.S. citizens to apply for permanent residence status here in the United Status.

Immigration One Year Later

A year ago I began my journey as AILA President with a speech at the annual conference in Vancouver. I focused my words on five principles in which I believe, God, Family, the Constitution, Service, and Litigation. Today is my last day as AILA President. As I reflect on the last year, I see that it was my belief in these five principles which carried me through what has been an amazingly difficult year.

From the economic disaster that started in the fall and continued through the spring of this year, to an election that has promised change, but which has not yet had time to fulfill all its promise, to the impending departure of two of AILA’s long time and key leaders, we have seen our fair share of challenges and obstacles.

BUT, we stand at the dawn of a new day. We believe that with the key personnel the Obama administration has begun to put into place at the Department of Justice, USCIS, ICE, CBP, and within the White House that we will see aggressive and positive administrative change and reform. For example, just today we have seen the outrageous Mukasey Compean decision reversed by Attorney General Eric Holder. I believe this action is just the beginning of a restoration of constitutional due process principles for which we have long been clamoring.

We have great hope for this year. We believe that with the leadership of the White House and key Senators and Congressman that the Comprehensive Immigration Reform Train has begun to travel down the tracks. While we might not always agree with out partners from both sides of the immigration reform aisle on all the aspects of immigration reform, AILA is and will remain a key player to bring the disparate sides of the pro-immigration reform debate together to reach an achievable solution.

We also move forward with faith, believing that the economy will continue to recover (the signs are already there), meaning our practices will once again be active, and AILA will continue to be able to provide the extraordinary member services for which we have long been known.

As we move forward toward an immigration reform package that will help begin solve many of the problems our country faces, the economy, health care, social security solvency, and a myriad of other challenges. By securing our borders, enforcing good and fair immigration laws, providing increased opportunity for legal family and employment based immigration, having a sensible temporary worker program-tied to the economy- to provide for future flow, and a sensible path to residence, with the registration of the undocumented, taxes being paid, and anyone legalizing going to the back of the line, we will achieve a workable immigration system. These key parts of the immigration reform plan are not pie in the sky. They are achievable goals this year.

At the end of my speech last year, I asked our members to stand with me to fight injustice and to fight for reform. You did join me. We used aggressive liaison and litigation to send a message this year—we will not stand for outrageous decisions without legal rationale. We will not stand for delays in adjudication. We will not be unwatchful shepherds who sheep are lead to the slaughter. We must continue these litigation efforts this year. But, we also must be proactive. We must focus on what is key–279 votes (218 in the House, 60 in the Senate, and the President. We need your help to reach out to our Congressmen and Senators. We need you to be a voice in the wilderness clamoring for sensible immigration reform. And, we must hold the feet of USCIS to the fire to justly interpret the law.

Waiver Basics

So your lawyer has told you that you need a waiver. What does this mean? In all likelihood, you are inadmissible to the United States for one of a myriad of reasons. In other words, even if your application is approved, you still cannot come to or remain in the United States because of a breach of the law which occurred in the past. This breach could be anything from remaining in the United States without the correct documentation or committing fraud to gain entry. A waiver is essentially a request to be forgiven for these breaches of the law. In most cases you will have to prove “extreme hardship” to a US citizen or lawful permanent resident spouse, parent or child. “Extreme hardship” is very vaguely defined as greater than the normal hardship than a similarly situated spouse, parent or child can be expected to experience should their alien relative be refused a green card. The likelihood of approval depends on the hardship that will occur if your application is not approved. If your immediate relative has a serious medical problem or if you are the sole care giver for a relative who needs constant care- you have a strong case. Likewise, your case will be strong if the country to which you would be deported would be considered unsafe for your US citizen relative. The adjudicator would also be more likely to improve a case if a relative had medical or educational needs which cannot be met in your home country. Although language difficulties and financial strain can be considered in aggregate with other hardship factors; these arguments are not in themselves strong enough to warrant an approval based on extreme hardship. Work closely with your lawyer and inform them of any factors that you think might assist him or her improving hardship to you and your family. Remember that the success of a waiver depends on the strength of your underlying evidence.

Special Immigrant Juveniles- Deprivation Orders

Children who are applying for green cards as Special Immigrant Juveniles must have a Deprivation Order from the Juvenile Court in the County in which they live. The Deprivation Order must contain several findings of fact.

1. The child falls under the jurisdiction of the Juvenile Court- this occurs simply by virtue of the age of the child and his or her county of residence. Note that different states apply different age limits for the children who can be considered to fall under the jurisdiction of the juvenile court.
2. It is not in the best interests of the child to return to his or her home country.
3. The child is eligible for long term
foster care. Does this mean that the child must go to foster care? No! It simply means that should the need ever arise, then the child would be eligible to receive foster care.
4. The child is a “deprived child” this basically means that the child’s situation warrants the involvement of the juvenile court.

If a child has become the subject of deprivation proceedings independently of the immigration process, he or she will not be barred from obtaining benefits from or for his or her biological parents.

However; once a child has gotten a green card as a special immigrant juvenile, he or she will not be able to apply for benefits on behalf of the biological parents.

Babies of Green Card Holders

What should you do if you are a green card holder and you give birth to a child outside of the United States? You may have realized in horror that it will take somewhere between 7 and 17 years to sponsor your child to come to the United States even if you file a petition for him before you leave the delivery room. Luckily, as long as you are admissible as a lawful permanent resident and your child is under the age of two- he will be issued an I-181 (record of permanent residence) upon entry into the United States. Most ports of entry will require your child to have his own passport and a valid B (tourist) visa. The US embassy will require evidence that you are a green card holder, your child’s passport and his birth certificate. Children born to lawful permanent residents inside the United States are of course citizens.