Musings on Immigration

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 “fiancé” 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 ...

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 temporar...

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 Serv...

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 stat...

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 vi...

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 rem...

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 chan...

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 you...

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 . Doe s 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 depri...

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.