Seattle Immigration Lawyer Blog

When I was about 16, I asked my father, "Why are most songs about love?" My father, ever the wise one, responded: "Why don't you write that down on a piece of paper and put it somewhere that you will not forget. Then open it up when you are about 25." Amazingly, I did just that! (More likely, I forgot I wrote it down and then stumbled upon the note years later.) While I don't have the perfect answer beyond the usual cliches of "love is what makes the world go 'round", or "love is universal", I do know after practicing immigration law for so many years, that indeed, a universal truth is that love has no borders. People find their soul mates all over the world. Nowadays, people can find that special someone online, while traveling, studying or working internationally, as well as through matchmaking, happenstance and serendipity. Unfortunately, our government doesn't make it easy, simple or quick for bi-national couples to be together. I just attended an immigration lawyers conference where one of the consular officers mentioned that his staff was gearing up for wedding season. As our office handles a lot of family based immigration matters, I thought this would be a good time to write about international love and how our immigration system deals with bi-national relationships.

At our Seattle immigration law firm, we frequently receive phone calls or emails from people asking these types of questions:
- "I married an American. Is that all I need to do to stay here legally?"
- "I just married an American (or green card holder). What's the fastest way to get my foreign spouse to the US or to get a green card?"
- "I just met the fiance(e) of my dreams. Can he/she just come here as a tourist and then we can get married"?
-"I just arrived on a tourist visa and married an American. It's just a simple case. Can you look these forms over and I'll just file for adjustment of status?"
- "My foreign national classmate and I just got hitched. As soon as we graduate and receive our degrees, we're going to travel the world and live or work in another country. Do I need a green card?"
-"My fiance and I want to marry and we want her 19 year old son to immigrate with her. Can we just file the papers now for a marriage case?"
-"I've been living in the US illegally since I was a kid and I just married my high school sweetheart who is American (or has a green card). Can I file for adjustment of status or should I go to the US consulate?"
-" I filed a fiance petition, but I'm tired of waiting for USCIS to approve it. What if my fiance and I just get married now instead?"
-"I'm married to an American. It's a simple case. How much do you charge for.....?"

Unfortunately, there is no "one size fits all" answer to these questions. When I look at my current roster of clients, every couple has unique circumstances. One of the reasons we require full initial consultations of prospective clients, is because we approach the process of marriage based immigration holistically and ethically, described more fully below.

Following is a very, very brief overview of some of the processes to immigration. This is not meant to be legal advice for a particular situation (or to establish an attorney-client relationship). Seeking legal advice for your particular situation is highly recommended. As you will see by the factors below, immigration law is complex and the best immigration method must be based on your particular facts. Many marriage and fiance issues and procedures have been litigated or are the subject of policy memos or operating procedures.

There are three main immigration options for couples:
a) K-1 Fiance(e) visas obtained at US consulates abroad before a couple is married;
b) Immigrant visas obtained at a US consulate abroad after the couple is married; and
c) Adjustment of status to permanent residence in the U.S., assuming the foreign spouse is eligible to adjust status and the couple is married. Adjustment is available as a remedy from removal in immigration court proceedings as well.
d) Some of the other family or employment based preference categories may include spouses of the principal immigrant. The discussion below pertains to the first three categories above.

Unfortunately, these options are not available to same-sex couples. Their options are more fully discussed in two prior blog posts, Same-Sex Marriage in Washington State and Impact of DOMA Developments on Bi-National Couples.

Continue reading "Love Has No Borders: Marriage and Fiance(e) Visas" »

CNN reports on a heartbreaking story Dangerous path to legal status about a young woman, Tanya Nava, who applied for her immigrant visa or green card at the U.S. Consulate in Ciudad Juarez, and now regrets that she ever did. Her husband, Jake Reyes-Neal, an American citizen and father of their child, had sponsored Tanya, only to be killed in the process while waiting with his wife to get her visa. Because Ms. Nava evidently had been in the U.S. illegally since she was a young girl, her physical departure from the U.S. to get her green card at the consulate triggered the 10-year bar to her return to the U.S. To come back earlier than 10 years, she filed for a waiver of the unauthorized stay bar. This additional application was filed at the consulate and then routed to USCIS which processes the waiver application. The only problem is that it can take weeks, months and even years in some cases for the waiver to be processed. While waiting in Ciudad Juarez, Mr. Reyes-Neal was shot to death. This is why the government's proposal to allow for stateside processing of waivers, mentioned in my blog post on Provisional I-601 Waiver Update, could provide relief for some families facing long periods of separation.

Although an extreme situation for a family facing separation due to the bars or waiver processing, this family's situation is not uncommon. Undocumented applicants for visas include people from other dangerous locales, including Nigeria, Syria, Egypt, Somalia and more. Even families not from dangerous countries face months and months of hardship due to family separation. Often the breadwinners must leave the country and cannot find work in their home country while they wait. Applicants who spent most of their lives in the U.S. may not speak the language, have resources or know anyone in their home countries. Relatives might be ill or face other undue hardships. Families have to decide whether to separate during the long process or whether the American sponsor must give up everything to join family members in a country the sponsor may not know. The plight of the waiver seekers has been made into a film, Tony and Janina's American Wedding, about a Polish-American family facing the long hardships due to separation during the waiver process.

When this Seattle immigration attorney began practicing immigration law over 25 years ago, if someone was out of status, the penalty was to return to the home country and seek a visa at a US consulate. The applicant would be back in a few days or weeks with valid status and an immigrant visa. However, in the 1990s, Congress downsized consulates and beefed up security at facilities worldwide. At about the same time, Congress enacted one of the most onerous provisions in immigration law, the three and 10-year bars to return due to unauthorized stay. Perhaps an unintended result, today we have the largest number of undocumented immigrants in the U.S. ever, many of whom have been living long term in the U.S. with a legal route to lawful status, but who are not willing to risk the separation, hardships and unpredictability inherent in consular processing visa and waiver applications. Thousands of families are caught between a rock and a hard place: whether to remain in the U.S. illegally or whether to gamble one's life, family, and/or job by consular processing a visa. The irony is that now Ciudad Juarez is the largest consulate in the world, handling 10,000 immigrant visas/green cards per month because Congress chose to ding immigrants in unauthorized stay. Although the $66 million facility is supported in part by immigrant-paid processing fees, the facility handles other law enforcement and diplomatic relations functions as well as services for American citizens in Mexico, all at taxpayer expense.

The CNN article further notes that Tanya and Jake chose for whatever reason not to consult with a lawyer. Because of the serious strategic decisions to be made in whether to apply for a visa given Tanya's background in the U.S., families in similar situations should seek the advice of a qualified immigration lawyer. Handling immigration issues on one's own or with unqualified non-lawyers that on the surface appear simple ("It's just a simple marriage case") can lead to complications or even tragedies as this family faced.

Whether the proposed stateside processing of waivers will be a panacea that really helps families remains to be seen. The proposed regulation describing the process has not yet been released. Even so, USCIS presently contemplates the process to apply to a very narrow group of applicants. The better answer to the problem of family separation would be for Congress to repeal the unauthorized stay bars that have caused untold family hardships and have created a government cottage industry.

Washington State appears poised in the next few days to be the seventh state in the nation to legalize same-sex marriage. It would go into effect on June 7, 2012. Assuming expected legal and referendum challenges fail, what would that mean for immigrant couples?

Visas and Green Cards for Binational Couples

Unfortunately, it will still be impossible to obtain a green card or permanent residence through sponsorship by a gay or lesbian US citizen or permanent resident spouse until Congress repeals the Defense Against Marriage Act (DOMA). DOMA prohibits the federal government from recognizing same-sex marriage for the purpose of marriage-based green cards. Because who can immigrate in what category is statutory, the Obama administration is not in a position to deviate from the existing spouse sponsorship statute even though his administration is not defending DOMA in some litigation. Such an important change to the marriage based immigration statute requires an act of Congress, and this Congress is not likely to repeal DOMA.

Visas for Dual Foreign National Couples

In the case where both partners in a couple are foreign nationals, for temporary visas, same-sex partners and spouses are not specifically recognized as dependents where one partner qualifies for a specific temporary business, family or student visa. Therefore, both partners have to qualify individually for their own visa types. However, there are some policy memos and provisions in the State Department's Foreign Affairs Manual that allow certain qualifying partners to come to the U.S. with the principal visa holders. The most frequently used visa for non-principal partners or spouses is the B-1/B-2 tourist visa. However, it is limited as to length of stay and ability to work is not authorized. These and other lesser known provisions are described in an earlier blog post at "Impact of DOMA on Bi-National Couples."

For dual foreign national couples seeking to immigrate permanently, the law presently does not allow the non-principal partner to qualify as a dependent. For example, if one partner qualifies for a business based green card, the other partner will need to qualify for his or her own green card category or may have to rely upon the restrictions of other temporary visas.

Binational Couples Where the Foreign Partner/Spouse is Out of Status

There are some avenues for relief from removal proceedings where an individual has a US citizen or permanent resident partner. They include cancellation of removal, asylum and various types of waivers of inadmissibility or deportability. None of them specifically allow consideration of the hardships to gay or lesbian US citizen or permanent resident spouses/partners. However, their hardships can come up in the exercise of discretion or possibly in relation to other citizen or green card qualifying relatives for whom hardship can be shown. Recently, there have been a few cases in which Immigration Judges have allowed consideration of the hardships to gay partners or spouses as a matter of discretion.

Continue reading "Same-Sex Marriage in Washington State: What Would That Mean for Immigrant Couples?" »

Today, I attended a USCIS Public Engagement Teleconference at which USCIS and State Department officials provided further details about the January 6, 2012 USCIS Notice of Intent to issue regulations, discussed in my earlier blog post, USCIS Proposes Stateside Processing of I-601 Waivers: Know Before You Go?. Recapping briefly the USCIS proposal, regulation will be issued for public comment describing new procedures for how and where immigrant visa applicants will file their waiver applications if they are subject to the three or ten-year unlawful presence bars to inadmissibility. The proposed regulation would change the place of waiver filings to the U.S. from the current rule of filing at the U.S. consulate while abroad. This would allow applicants to file before going to their green card visa interviews at U.S. consulates abroad. The purpose of the teleconference was both to further inform stakeholders as well as to solicit ideas for the proposed regulation.

USCIS plans an education push on the subject. Already, they say, notarios and other legal consultants are advertising a new law, a new benefit or other nonsense that simply isn't true. Anti-immigrant advocates mischaracterize this as President Obama's attempt to carry out a "back-door amnesty" or is "an abuse of his administrative authority," when in fact this is just a procedural change in the place of application. It would not be a change in the qualifications for waiver applications that already exist by Congressional statute. Others note that this is just a political ploy by the Obama administration to appeal to Hispanic voters. Nonetheless, USCIS has the regulatory authority to determine how to carry out a statute enacted by Congress.

Here are some highlights from the public engagement teleconference:

1. USCIS anticipates issuing proposed regulations "in the Spring" with a 60-day comment period and final rule "by the end of the year." The goal is to implement the regulation "this calendar year." Note, this is an election year; therefore, whether the regulation will really be implemented "by the end of the year" may depend upon the outcome of the Presidential election in November. Nonetheless, the agency will still exist and be responsible for the waiver adjudications unless Congress changes the overall structure of the bars and waivers before then.
2. Presently, there are 23,000 waiver applicants abroad around the world, which includes all waiver types, not just waivers for the unlawful presence bars. 75% of those are applicants for immigrant visas at the U.S. consulate in Ciudad Juarez. These are the people who have decided to take the risk to pursue their employment or family based green cards abroad (because they are ineligible to do so in the U.S.), knowing they may be separated from families while waiting for waiver applications or fulfillment of the three or ten years residence abroad before they can return. Meanwhile, millions of people eligible to immigrate at consulates abroad who need waivers have chosen to remain in the U.S. illegally despite being eligible for visas and potentially eligible for waivers. They are unwilling to take the risk of lengthy family or job separation under the current process.
3. USCIS wants ideas and comments now to help with rule formulation. Suggestions should be sent to: public.engagement@dhs.gov. Note that this process for input is no substitute for formal comments once the proposed rule is published. At that time, that's when public comments will really count, but suggestions submitted now can go into the initial rule formulation process.
4. USCIS reiterated that the purpose of the rule change is to reduce the separation period facing U.S. citizens and their families while immigrant visa applicants continue with the existing immigration process. This has the added benefit of saving the government money from inconsistent procedures, adjudication and constant routing of files between the State Department and USCIS. Note again, that this is strictly a procedural change, not a legislative change, amnesty or qualification change. See USCIS Q&A. Many stakeholders at the meeting commented on why USCIS was not including U.S. citizen parent beneficiaries since they are immediate relatives; permanent resident petitioners with U.S. citizen relatives who are qualifying family members for waiver hardships; and U.S. citizens with permanent resident family members suffering hardship who also qualify for waivers. All of these categories are waiver eligible and affect U.S. citizens.

Continue reading "Provisional I-601 Unlawful Presence Waiver Update" »

Today, U.S. Citizenship and Immigration Services (USCIS) announced a "Notice of Intent" that it is considering issuing a rule change to allow a narrow class of specified immigrant visa applicants to process their I-601 waivers of inadmissibility in the U.S. This means that they would have a provisional decision about their waiver eligibility BEFORE they leave the U.S. to complete interviews at U.S. consulates abroad. The rule itself has not been issued. There will most likely be a period for public comment before the rule is implemented. Therefore, it could be a few months before this procedural change goes into effect, and the nature of the final rule could change based on public feedback. Meanwhile, next week, USCIS will hold a teleconference with stakeholders.

The proposal would be a procedural change only. It is not a change to qualifications. It is not amnesty or another new benefit, as the anti-immigrant folks will surely claim. USCIS intends this rule to make the overall process more efficient and a cost saver for the government by reducing the back and forth of applications between the State Department (consulates) and USCIS. Most importantly, the change would reduce the amount of time some families are separated and promote family unity, something desperately needed in our immigration laws and procedures. However, the proposal is limited to a very, very narrow group of applicants. One has to ask why the government doesn't want to save more money by broadening the group of people to whom this procedural change should apply and suffer the same family hardships. Nonetheless, for the limited group to which it will apply, the change is a welcome assist to applicants for immigrant visas abroad who are presently in the U.S. Presently, they have to decide whether or not to take the risk of leaving the U.S. to complete processing their family based green card applications at U.S. consulates not knowing if their waiver applications will be approved. This change will presumably make that decision making process for families easier.

About Unlawful Presence Waivers

Briefly, if an applicant has been unlawfully present in the U.S., whether by unlawful entry or other visa violation, for six months or more, the very act of leaving the U.S. to legalize status by obtaining an immigrant visa abroad triggers the three or ten-year bar to returning to the U.S. Once the bar is triggered, a waiver of the unlawful presence bar is required to come back earlier than three or ten years. Not everyone who has been in the U.S. unlawfully needs to consular process or is subject to the unlawful presence bar. Examples include unlawful entrants who are eligible for section 245(i) adjustment of status in the U.S., or certain immediate relatives who entered with lawful visas who may have overstayed. Whether one is or is not subject to the bar or must consular process should be determined in consultation with an experienced immigration lawyer.

Because waivers are decided by USCIS and not the consulate, applicants can be stranded abroad, separated from families and jobs while waiting for waivers to be decided. Once the waiver is approved by USCIS, the applicant returns to the consulate for issuance of the visa. If the waiver is not approved, the applicant remains outside the U.S. until the three or ten-year period ends. This separation creates huge hardships for families. Wouldn't you want to know the likelihood of your waiver application being granted BEFORE deciding whether to leave the U.S. for the final visa interview?

The U.S. consulate in Ciuadad Juarez, Mexico is the largest consulate in the world. It has the greatest number of visa applicants waiting for waivers. Many applicants or their families have suffered from the violence in Mexico while waiting for the outcome of their visas. Similar fates await visa applicants in other countries such as Nigeria, Sudan and places where there is internal conflict. There are immigrant visa applicants all over the world currently waiting for waiver decisions while being separated for months or years from their U.S. citizen or green card holding family members.

Waiver eligibility weighs heavily into the applicant's risk/benefit analysis for deciding whether to leave the U.S. Unpredictability in the waiver adjudications puts applicants into a Catch-22 situation and is one reason why many people in the U.S. who could regularize their status remain unlawfully in the U.S. The proposed rule change, however, will not impact waiver requirements or adjudication variables. It only affects whether one applies for the waiver before or after leaving the U.S. USCIS acknowledges this irony in its proposal, thanks to Congress, who in 1990 enacted the bars and waivers: "The action required to regularize the status of an alien, departure from the United States, therefore is the very action that triggers the section 212(a)(9)(B)(i) [unlawful presence ground of ] inadmissibility that bars that alien from obtaining the immigrant visa." As I have mentioned in prior blog posts, eliminating the unlawful presence bars should be an essential element of immigration reform that would also save the government lots of money. The government bureaucracy devoted to waiver adjudications has mushroomed over the years as has the cottage industry of psychologists, doctors, country condition experts and others who often weigh in on the hardships an applicant will face.

Narrow requirements for stateside processing of waivers

If and when the rule becomes effective, unfortunately, it will be very limited as currently proposed. First, it would apply only to immediate relative visa applicants (spouses, minor unmarried children under 21, and parents of U.S. citizens) and some self-petitioners (widows/widowers of U.S. citizens). It would not apply to the same family members of green card holding sponsors or other family member combinations, nor to employment based visa applicants. The rule is only intended to modify the time of family separation among U.S. citizen family members during waiver processing. It does not change the extreme hardship qualifying standard or statute.

Continue reading "USCIS Proposes Stateside Processing of I-601 Waivers: Know Before You Go?" »

Most people are confused about green card quotas and how they impact application processing times. Permanent immigration through a relative or work can take many, many years. This is because our legal immigration visa allocation system was established in 1965 and has only been amended a few times since, mostly dealing with how unused numbers spill into other categories. In 1965, Congress changed the visa allocation system from race based to country based calculations, designed in part to prevent any one country from monopolizing available immigration numbers. It is the system we still use today. This post attempts to explain the quota system more simply and provides some references to further explanations and background for what is otherwise a complex subject. The terms "permanent residence" and "visa" are used here interchangeably to refer to green card status obtained by 1) seeking an "immigrant visa" at a U.S. Consulate abroad, or 2) through "adjustment of status" in the U.S. at a USCIS office. There are differences in the two processes, but they both lead to permanent residence and they are based on the same family and work related categories. Both procedures require the applicant to be at the front of the line in the quota system in order to complete the application process and receive a green card.

What is the quota?

The quota is the annual allocation of permanent visas or green cards by country of birth and category. It should not be confused with bureaucratic processing delays or "agency processing times" that have more to do with available agency personnel, resources and priorities. Congress established a finite number of visas per country and per category. However, annual demand for green cards usually outweighs supply, thus creating a backlog. For FY2012 that began October 1, 2011, the annual worldwide limits are 226,000 family-based green cards and 140,000 employment-based green cards.

I tell my clients to think of the quota like a movie theater. Suppose there are only 100 seats in the theater but more than 100 people want to see the movie. Once the 100 seats are sold out, everyone standing in line has to wait until the next show. In the case of visas, that means waiting for the next month, or perhaps the next fiscal year to determine if a new group of visas (tickets) are available. Visas are allocated annually by category and country via a formula determined by Congress. Estimates, (note the word "estimate"), of visa availability are published monthly by the U.S. State Department in the "Visa Bulletin." The State Department refers to categories that are backlogged as being "oversubscribed." Where visas are available, the categories are said to be "current." Oversubscribed categories are referenced by a date, called a "priority date." The priority date is the date in which the applicant first got in line. If the Visa Bulletin shows dates, it means it is issuing visas to applicants who were in line prior to that date. Current quotas are reflected in the visa bulletin by a "C". If visas are not available at all, the category is noted by a "U." Priority dates are discussed in more depth below.

The annual "diversity visa" lottery also has a maximum limit. Generally, more applicants are notified than visas are available because many people will turn out not to qualify or will change their minds. But nonetheless, the demand exceeds the supply and creates a backlog or quota that is also reported monthly in the Visa Bulletin. The State Department has published a more detailed explanation of how the quota system works. For academic readers, data crunchers and historians, there are additional statistical reports on historical data, country, category and regional reports published by the State Department here.

Why is the quota important?

In order to receive an immigrant visa abroad at a U.S. consulate, or in order to apply for adjustment of status in the U.S., a visa must be "immediately available." In other words, the quota must be current in order to complete immigrant visa processing or to file for adjustment of status in the U.S. (Form I485). When there is a backlog in any visa category, the applicant cannot get into the theater and has to stand in line waiting for the next show, using the movie theater analogy above.

Thus, one could have filed initial labor certification (PERM) and/or visa petitions to start a case months or years before, but be unable to file the last set of paperwork due to the quota backlog. The quota need not be current to file PERM or visa petitions to start the immigration process. Another scenario that sometimes occurs is that one may have filed for an immigrant visa or adjustment of status when the quota was current, but while the application was being processed by USCIS or the State Department, the quota retrogressed or became backlogged. In that unfortunate situation, the State Department or USCIS can process the application but cannot grant it until the quota is current again. Therefore, it's important to track the quota in the Visa Bulletin on a monthly basis.

Continue reading "FAQs:Understanding Quotas and Green Card Delays: Why is My Case Taking so Long?" »

How do our immigration laws help (or hurt) our members of the military and their families? There are several programs that expedite citizenship for those who have honorably served in the military. Other programs help families with lawful permanent residence (green cards) and expedited citizenship. This firm has had the honor to handle a number of military related immigration and citizenship cases. Even the show "Army Wives" has an episode devoted to the issue of immigration problems of a deployed Army wife. Other examples abound in the media. Washington State is home to several military bases where many families have at least one immigrant relative. Immigration issues commonly arise in the military, many of a complex nature requiring help from an immigration lawyer. This article will be posted in two parts. This part focuses on benefits for active duty or honorably discharged members. The subsequent post will focus on benefits for family dependents.

Who can join the military?
The Selective Service statute makes it "the duty of every male citizen of the United States, and every other male person residing in the United States, who...is between the ages of eighteen and twenty-six, to present himself for and submit to registration." See www.sss.gov. This statute does not apply to any nonimmigrants maintaining lawful status such as F-1 foreign students, J-1 exchange visitors, H-1B temporary workers, or others set forth in the nonimmigrant immigration statute. However, since the statute does apply to any male residing in the US, even those who are not US citizens, that means undocumented immigrants must register. Registration is does not mean enlistment, however. The purpose of registration is in the event there is a draft because there are insufficient volunteers who have enlisted. There are a number of laws affecting what would happen if the draft is called up and how that would apply to undocumented individuals.

Voluntary enlistment rules are much more complicated. For the most part, enlistees must be US citizens or lawful permanent residents. In some cases, legal but non-US citizen or legal non-permanent residents may enlist. In 2009, a pilot program ran called "Military Accessions Vital to the National Interest" (MAVNI) to promote enlistment of 1000 lawfully present individuals, not having green cards or citizenship, but who had special skills such as medical training and language skills. This successful program attracted the most highly qualified and skilled individuals such as certain nonimmigrants and asylees. However, the program expired and many people are petitioning the government to reinstitute MAVNI. In sum, to enlist, one must have legal status. Undocumented individuals must register but may not voluntarily enlist for the most part at this time. The DREAM Act, had it passed the Congress, would have allowed those without papers to enlist if they applied for status under DREAM.

Military Related Immigration Benefits
The Immigration Statutes allow for expedited naturalization, posthumous naturalization, and immigration benefits for spouses, parents and children of US and green card holding military service members.

1. Expedited Naturalization
Qualifying members of the military service can obtain expedited naturalization under two statutes. Service must be in the U.S. Army, Navy, Air Force, Marine Corps, Coast Guard, and certain components of the National Guard and the Selected Reserve of the Ready Reserve. Active duty members can apply for naturalization in the U.S. or abroad. Some of the usual requirements for naturalization are minimized or waived for qualifying service members as noted below. The filing fee and biometrics fees are waived.

Normally, applicants for naturalization must prove they: 1) are at least 18 years old; 2) are lawful permanent residents for three or five years prior to filing, depending upon the category, 3) with half of that time (1.5 or 2.5 years) being physically present in the U.S., 4) are of good moral character, 5) are able to speak, read and write English and pass a civics and history exam, 6) are attached to the principles of the U.S. Constitution, 7) and they must pay the $680 biometrics and filing fee.

a. Section 328 requires the applicant to have served honorably in the U.S. armed forces for at least one year and, if separated from the U.S. armed forces, must have been separated honorably. In addition, the applicant must be a permanent resident at the time of examination on the naturalization application, be able to read, write, and speak basic English and pass the history and civics exam, be a person of good moral character, and attached to the Constitution. However the residence/physical presence requirement is waived if the applicant files for naturalization within six months of separation. This provision is sometimes called "Peace Time Service."

Continue reading "Immigration Issues and the Military: Honoring our Veterans and their Families" »

On February 23, 2011, U.S. Attorney General Eric Holder sent a letter to Speaker of the House, John A. Boehner, indicating the Administration's decision not to further defend Section 3 of the Defense Against Marriage Act (DOMA) in two pending cases, Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.) and Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.) Although the general rule in immigration law is that the U.S. must honor the laws of the place where marriages (deaths, births and divorces) take place, DOMA provides an exception since DOMA declares that marriage can only be between one man and one woman. Accordingly, although same-sex couples can marry in several states and countries, for immigration purposes, these marriages are not recognized as either a category of direct spousal sponsorship, or in the area of dependent visas, or as qualifying relatives for waivers and other relief from removal or inadmissibility.

On March 31, 2011, Congressman Rush Holt (D-NJ) wrote to Homeland Security Secretary, Janet Napolitano, requesting that she immediately halt the deportations of same-sex binational couples and resolve the case of Henry Velandia.

Then, on April 6, 2011, approximately 85 organizations sent a joint letter to Secretary of Homeland Security (DHS), Janet Napolitano, Juan Osuna of the Executive Office of Immigration Review (EOIR) in the Justice Department, and Thomas Hussey of the Office of Immigration Litigation (OIL) in the Justice Department asking that:
• I-130 visa petitions and refugee/asylum relative petitions and others filed on behalf of married same-sex partners as principals or derivatives or self petitions under VAWA be held in abeyance pending development of interim measures or resolution of DOMA;
• Concurrently filed applications for adjustment of status and petitions if filed on the above grounds be allowed to be filed and held in abeyance;
• The agencies decline to initiate or continue removal proceedings against noncitizens who are principals or derivative beneficiaries on petitions filed by or on behalf of same-sex spouses, or grant deferred action status;
• Derivative applicants in asylum applications involving same-sex spouses be allowed to seek relief from removal, in addition to similar relatives in cancellation of removal, waivers or VAWA cases;
• Proceedings in immigration court be terminated, or allow motions to reopen or reconsider to administratively close or continue proceedings until there is a final judicial resolution regarding DOMA;
• OIL attorneys be allowed to agree to or not oppose requests for stays of removal in federal court litigation until the DOMA case is resolved or there is a legislative resolution concerning DOMA and/or to request a continuance or request the court to hold such cases in abeyance or to stay the order until there is a resolution concerning section 3 of DOMA.

The Administration took a historic step forward in announcing its conclusion that Section 3 of DOMA is unconstitutional and indefensible. A Massachusetts federal court has ruled that DOMA cannot withstand even rational basis review. See Gill v. Office of Personnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010).

In a blog post by Victoria Nielsen, Legal Director of Immigration Equality (www.immigrationequality.org), she recommends that same-sex couples:
• Not race to the courthouse to challenge DOMA since the House of Representatives is likely to defend it some how. Instead, litigants or potential litigants should consult Immigration Equality or the American Immigration Lawyers Association (AILA) to discuss litigation strategy and get amicus help.
• Getting married might now makes sense in certain situations where the person is already out of status or is on a dual intent visa. People coming and going on temporary nonimmigrant visas or the visa waiver program requiring a permanent home abroad should probably still not get married to preserve future rights to use temporary visas or else they will be denied entry if the border officials have reason to believe the applicant is coming to the U.S. to stay permanently.
• DHS is still denying I130s visa petitions for same-sex partners, so it would not be advisable to step forward and apply until there is a firmer policy in place that would help applicants.
• Advocating for better laws, policies, and interim relief may be a better strategy unless litigation is adequately coordinated with groups that know this area the best such as AILA and Immigration Equality. For example, while DOMA is challenged, an important strategy is to call upon Congress to enact the Uniting American Families Act ("UAFA"), a bill that would allow U.S. Citizens and Lawful Permanent Residents to sponsor their long-term partners for immigration benefits whether or not they are married. Senator Patrick Leahy (D-Vt) reintroduced UAFA on April 14, 2011. A similar bill was introduced in the House on the same day by Congressman Jerrold Nadler (D-NY).

Continue reading "Impact of DOMA Developments on Bi-National Couples" »

In a few earlier posts, I discussed how the permanent immigration quota system works, or doesn't work because of its impact on illegal immigration. In my recent post, Why Don't They Just Come Legally? - Myths Part II, I mention that two of the causes of illegal immigration are due to there being no lines for legal visas to get into in the first place because there are no categories for certain employment and family categories. And, in cases where there are applicable categories, the lines can be very, very long - decades in some cases. In my post on the Anchor Babies and the 14th Amendment - Myths Part I, now called the "birthright citizenship" movement devoted to repealing the 14th Amendment, I discuss how American born kids can't sponsor their parents or siblings until they are 21, and even then, at least for siblings, they have to endure the quota backlogs. Finally, in an article on the DREAM Act, I showed how the last proposal before Congress added 10 years to the DREAM Act process. As a result, the beneficiaries would have to wait 10 years to become a U.S. citizen before they could even start the process of sponsoring relatives. The sibling quota delays would add another 10-20 years to the process. Well, now the February issue of the U.S. State Department's monthly Visa Bulletin really demonstrates just how bad the quotas can get based on demand and small supply of available green cards or visas.

The term "retrogression" in the Visa Bulletin refers to the quota getting longer or the line moving backwards rather than advancing forward toward being current. For years, ALL of the family based preference categories, which do not include spouses, parents or minor children of U.S. citizens, have been subject to lengthy backlogs, regardless of country of birth. Siblings of U.S. citizens are always the worst, and if the person immigrating is from China, India, Mexico or the Philippines, or the Dominican Republic, the quotas are the worst of all. Starting in January, the family based quota retrogressed for most people in most categories which means demand has increased.

In the employment based immigration context, foreign investors and creme-de-la-creme employees (those that are world renown or hold advance degrees) typically have no backlogs unless the person is from India or China. Everyone else immigrating based on a job requiring limited work experience or a bachelors degree is subject to a quota delay with Indians having the longest wait. Most Indian and Chinese nationals are here on H-1B temporary work visas because of strong hiring trends several years ago, but because demand is high, they have longer waits, and for many of them, their H-1Bs will run out before they reach the front of the line of the quota. Many have already gone home because of better opportunities abroad. Accordingly, many experts view the employment quota backlog situation in America as a cause for concern about an outbound brain drain.

Starting next month, the the February 2011 Visa Bulletin has a new column for people from the Dominican Republic. Evidently, there is high demand by Dominicans but insufficient visas in both family and employment based immigration categories. Permanent residence (green card) levels were set by Congress over 20 years ago according to a complicated formula. A general idea about how the numbers are allocated is described in the The Operation of the Immigrant Numerical Control System. Briefly, visas are allocated by per category limits which are then allocated by per country limits. Then there are rules about spillovers from one category to another. Demand for visa numbers can fluctuate from one month to another, with the inevitable impact on cut-off dates. A person's place in line in the quota or backlog is called their priority date, which is established when the government receives the first application type that starts the immigration process in that category.

Continue reading "Green Card Applicants Must Wait Even Longer According to February 2011 Visa Bulletin" »

The U.S. State Department announced today that the family-based permanent legal immigration quota will retrogress in January. The State Department makes monthly estimates about visa use around the world through an extremely complex formula that hardly anyone understands. Although the State Department posts a brief explanation online, it does not adequately reflect the true complex nature of calculating when visas are available. Not only does the State Department have to monitor how many permanent immigrant visas are being issued by each U.S. consulate world wide, but applications filed within the U.S., called "adjustment of status", also have to be monitored. Immigrant visas and adjustment of status applications can only be filed and granted when the quota is current. But in between those times, the quota can retrogress or become backlogged.

The quota status is published monthly in the Visa Bulletin at www.travel.state.gov. By understanding how the quota works, one can better understand why fixes are needed to the legal immigration system. Without these fixes, enforcement-only legislation will increase the numbers of people who fall out of status, or will encourage people to come illegally if one understands anything about the human condition or drive to protect and feed one's family.

I tell my clients to think of it this way. Suppose you are trying to see a movie at a theatre with 100 seats. You arrive at the theatre and the seats are sold out and you have to stand in line. How long you stand in line depends on demand for the limited supply of seats. You may get into the theatre for the next movie, or after several movies. Think of movies as months, maybe years. When people try to immigrate through family members, depending upon the relationship combination involved, the beneficiary may be waiting in line at theatre A, theatre B or theatre C for example, which we call preference categories. These are all defined and explained in the Visa Bulletin every month.

Where you are in line is further complicated by where you were born since visas are issued by country of birth, not citizenship, and each country is allocated a finite number of visas per category. If you were born in India, China, Mexico or the Philippines, you will usually wait much longer than everyone else. There are a few obscure rules on "cross-chargeability", so it's worth getting some legal advice to see if the beneficiary might fall into the world-wide category, which covers everyone else. But, for the most part, every single family preference category has been backlogged for years, and even moreso for Chinese, Mexicans, Indians and Filipinos. The only people NOT subject the quota backlogs are spouses and parents of U.S. citizens and minor unmarried children under 21 of U.S. citizens.

Continue reading "Legal Immigration Quota Backlogs Increase: Why Enforcement-Only Legislation Creates More Ilegal Immigration" »

Anchor Babies - The Myth

"Anchor Baby" is a derogatory term and a figment of imagination. Anchor for what? Nativists believe that immigrants come to the US to "drop babies" so they can bestow an immigration benefit upon the parents. This is pure nonsense and not the law or fact! There are no immigration categories in our present system that allow a U.S. born child under 21 to sponsor his or her parents! Under current law, whether the parents entered legally or illegally, they will have to wait at least 21 years for a green card if sponsored by the U.S. citizen child. Similarly, a U.S. citizen cannot sponsor a sibling until the citizen is 21 years old.

How Many U.S. Citizen Babies are Born to Immigrants in the U.S.?

An August 11, 2010 Pew Hispanic Center study, "Unauthorized Immigrants and Their U.S.- Born Children", reports that only 8% of children born in the U.S. in the year 2008, or 340,000 of 4.3 million babies, had at least one parent without documents, while 16% of U.S. citizen children born in the U.S. that year had one or more parents who are immigrants with legal documents. Overall, the Pew Hispanic Center estimates there are 4 million U.S. citizen children living in mixed status households out of 8.8 million mixed-status families in the United States.

According to a Pew Research Center for People and the Press article, "Obama's Ratings Little Affected by Recent Turmoil", Part 3, most of out-of-status mothers with U.S. born children have been here at least a year, and more than 50% have been here for five years or more without status. This means that most immigrants who have their babies in the U.S. do by so happenstance, not as the primary reason for coming to the U.S. The only exception may be people who live along the U.S.-Mexican border who have easier access to quality U.S. medical facilities for giving birth. A September 3, 2010 Boston Globe article, "'Birth Tourism' a Tiny Portion of Immigrant Babies", mentions Demographer Douglas Massey of Princeton University who has researched Mexican immigration trends. He says he has never met anyone who came to the US specifically to have a baby here, which mirrors the experience of most immigration lawyers. This is certainly consistent with this author's experience in immigration law.

The "anchor baby" argument, or the "birthright" movement, is intended, presumably, as a theory to reduce illegal immigration. But, if we repealed the 14th Amendment (see below) or otherwise prohibited U.S. born children from being American citizens at birth, according to a September 2010 Migration Policy Institute study, "The Demographic Impacts of Repealing Birthright Citizenship," between 2010 and 2050, we would actually double the number of people without status from 10-12 million to 25 million because the children of those children born in the U.S. would create yet another generation of children growing up in America without status or rights.

Other Considerations of U.S. Born Children in Immigration Law

Even when the U.S. citizen child turns 21, the sponsored parent or sibling may have to wait years more to immigrate or might not be able to immigrate at all. This is because of two main factors - quota delays for siblings of U.S. citizens, and the three and ten-year bars that require many sponsored relatives who entered the U.S. illegally to complete processing of a green card at a U.S. Consulate abroad. The act of leaving the U.S. to visit the Consulate can trigger the bars to re-entry despite otherwise having a way to immigrate legally. Those who are subject to the bars must first obtain an "extreme hardship" waiver to avoid waiting the three or 10 years abroad. Waiver approvals are unpredictable. Quota delays and the three and 10-year bars are why most people without legal status in the U.S. cannot immigrate today despite having an employer or family sponsor.

Continue reading "Anchor Babies and the 14th Amendment - Immigration Myths Part I" »