Seattle Immigration Lawyer Blog

I am sipping an early morning Starbucks bold Italian brew on this gorgeous Seattle Fourth of July and reflecting on what it means to be a U.S. citizen. Today, across the country, U.S. Citizenship and Immigration Services will be holding large-group naturalization ceremonies in stadiums, concert halls and other big venues to coincide with our country's independence day. The ceremonies will be solemn on the one hand, and full of pomp and circumstance on the other, as those taking the oath of allegiance celebrate their new citizenship status on one of the most patriotic days of the year. Having been born in the U.S. myself, I can't possibly imagine what it must feel like to achieve the lifelong dream of U.S. citizenship from the perspective of someone born abroad. However, I have been to a few of these ceremonies in the past to see my clients take the oath of allegiance, and I always get goosebumps. The room is always full of people from many different lands, who came here for such diverse reasons as job opportunities, falling in love, uniting with family, escaping economic or environmental hardship, or fleeing physical abuse or oppression. Some were even brought here as children and always thought they were U.S. citizens until as adults they learned they were not automatic citizens. Naturalization ceremonies are one of the happiest services provided by USCIS and the courts. And, to their credit, they always do a nice job making the ceremony a pleasant and meaningful experience.

When I ask my clients why they want to apply for naturalization, the most common reason given is the "desire to participate in our system" or to vote. Another common reason for some who have had green cards for many years, is because their native country finally allows their nationals to have dual citizenship or because long time permanent residents finally "feel American." Other reasons include not wanting to jeopardize having a green card taken away due to a criminal or legal mishap or abandonment of residence. Still other reasons are to qualify for scholarships, or to obtain top level security clearances or employment opportunities for certain military, government and private sector jobs. Ability to sponsor relatives is sometimes given as a reason to become American. Others have spent years learning English and studying for the test or have worked two jobs to raise the high filing fees and now feel ready to apply and be successful. Still others have served our country through military service. Whatever the reasons, new Americans undertake this solemn oath of allegiance with dedication and excitement. Many of these reasons and others are shown in a new film by Alexandra Pelosi, the daughter of Nancy Pelosi in her new documentary film, "Citizen USA: A 50 State Road Trip" in which Ms. Pelosi interviews new Americans around the country. The film airs tonight on HBO at 9pm.

Being American As a State of Mind
The citizenship ceremonies being conducted across America today are the culmination of highly technical requirements and procedures, besides being emotionally exciting for the participants and their families. Many "followed the rules" the entire way of their immigration journey while others may not have, but found ways to lawfully immigrate in the end. Some have been here just a short time, while others have been here for years.

However, there are many people for whom "being American" is a state of mind only. While most U.S.-born citizens rarely take time to pause and reflect on the enormous privilege they have to be American, there are other people living among us who currently have no chance of becoming American citizens, but have for all intents and purposes grown up in America and feel American to the core of their souls. They are the Dream Act youth - the ones who would benefit from the Dream Act pending in Congress in one form or another for the last 10 years. If Congress would just get off its duff and pass the Dream Act, thousands of young people who are American in their souls as well as in their dedication to serve our country could be set on the path toward citizenship rather than languish aimlessly in the underground in what would otherwise be the start of their careers. They have grown up here most of their lives, have no allegiance to or knowledge of any other country, who desire to go to college and/or join the military. They all want to give back to America in one way or another. They have already shown they are a politically astute and well-versed in how to effectuate change. They are force to be reckoned with. Although the various versions of the Dream Act would put these kids on a ridiculously and unnecessarily long path to citizenship, at least they would be on the road, while their current road to nowhere is no fault of their own. As I said in a previous post, A Good Mind is a Terrible Thing to Waste.

Ask every one of the Dream kids, and they will tell you that they feel American and are American in all respects except having a piece of paper and the right to vote. Aside from living in fear of deportation, they live with stresses most American teens and young people don't live with: no legal right to drive in most states, no right to work, no right to attend college or get financial aid in many states, and no right to pursue a future consistent with their talents or dreams. However, they grew up with their U.S.-born neighbors, played soccer or baseball together, participated in Scouts, took music lessons, learned about U.S. and state history, attended countless Fourth of July barbecues and watched fireworks every year that they have been in the U.S. Some are valedictorians. Others are born leaders. Still others have started nonprofits or private businesses. Most have lived in America longer than many of the people being naturalized today. "Papers:The Movie" documents the Dream Act youth and their parents, teachers and mentors who have dealt with the multiple hardships these youth experience.

Let's hope that many of today's newly naturalized citizens will exercise their new status by writing to Congress and demanding passage of the Dream Act so that this group of young people may someday experience the emotional high and awesome responsibilities of becoming naturalized citizens.

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 Senate's failure to enact the DREAM Act was a blow to the young people who would have qualified and to their many supporters. The DREAM Act would have put young people living in the U.S. without status who came to the U.S. at an early age with their parents on a long 13-year path to legal status and citizenship if they commit to going to college or join the military. Other DREAM Act supporters included their families, employers looking for more college graduates and leaders, the military anxious to expand the pool of volunteer recruits, educators of all types at all levels of education, ethnic and immigrants rights groups, and many, many everyday Americans who are the relatives, friends, neighbors, fellow classmates, teachers, and service providers to DREAM youth.

Republican Senators Richard Lugar (IN), Robert Bennett (UT) and Lisa Murkowski (AK) very courageously voted in favor of the Dream Act last week. However, Democratic Senators Baucus (MT); Hagan (NC); Nelson (NE); Pryor (AR); and Tester (MT) all voted against the Dream Act. Senators Joe Manchin (WV), Bunning (KY), Gregg (NH), and Orrin Hatch (UT) (who ironically, was an original sponsor of the DREAM Act when first introduced in 2001) failed to even show up to vote on this important piece of legislation. 60 Senate votes in favor were needed to pass the DREAM Act, but fell just five votes shy of passing. Some Senators who voted against the DREAM Act have since stated they might have voted for it if it wasn't so broad.

Immigrant and gay rights are at the forefront of civil rights advocacy in the United States right now. Amazingly, the Senate had the guts to repeal Don't Ask Don't Tell (DADT), but it lacked the guts to pass this minor piece of immigration reform legislation that would have benefited the economy and security of the United States. Ironically, both pieces of legislation would have remedied this country's failure to accommodate people who want to pursue higher education and/or serve in the military because they love and want to give back to this country. Both DADT and DREAM recognize that this country has squandered opportunities to attract the best and brightest in academia and the military by discriminating against gays and immigrants.

By failing to pass the DREAM Act, the Congress has endorsed a policy of letting an estimated 65,000 undocumented high school graduates a year languish in the underground economy, keeping them disenfranchised and unable to pursue their talents, or preventing them from being able to pursue professions that could otherwise have resulted in the cure to cancer, developing the next great new technology, improvements to the environment, or leading great companies or organizations in ways that would benefit all Americans.

So, what happens now? Perhaps the failure of the DREAM Act will result in opportunities. As they say, "if you're given a lemon, make lemonade." There could be a silver lining in all of this despite predictions that it is unlikely the next Congress will vote for anything but enforcement-only immigration legislation. There are other approaches to take.

Continue reading "DREAM Act Failure: Nightmare or Opportunity?" »

The Senate voted Saturday not to move on the DREAM Act, H.R. 5281 by 55-41, just five votes shy of what was needed to move the bill. Senator Reid from Nevada had previously filed a cloture motion. Since the Senate failed to achieve the 60 votes needed, the bill will not proceed further. The new Congress is likely to enact enforcement-only legislation, but immigration rights groups, educators, business and other groups, emboldened by new organizing efforts, and who support immigration reform beyond enforcement-only laws will not give up. The New York Times quotes Senator Durbin, who originally introduced DREAM, as saying "'I want to make it clear to my colleagues, you won't get many chances in the United States Senate, in the course of your career, to face clear votes on the issue of justice.'"

The anti-immigrant rhetoric about the DREAM Act lately is disingenuous, to say the least, and completely false in other cases. Unlike experienced immigration lawyers, most legislators just don't have the day-to-day experience of implementing or using the laws they create, so they may not fully appreciate the real impact the laws they enact have on real people, families, employers, and the community at large. I show below how some of the anti-DREAM Act arguments being made by certain legislators and their supporters just don't stack up to the facts. As our colleagues at the Immigration Policy Center say, there's an appalling lack of "truthiness" by some legislators, to use a term coined by Stephen Colbert of Comedy Central.

1. Myth: The DREAM Act is Amnesty.
Reality: Amnesty is forgiveness for a wrong or past offense. DREAM Act is a process for legalizing the status of young people who were brought here at a young age through no fault of their own. We do not normally hold children accountable for the acts of their parents. DREAM Act has many steps and requirements for applicants to follow that will take years to obtain in order to earn legal status. Dreamers must meet certain age and application requirements, complete high school or a GED, attend higher education or serve in the military, pay of exorbitant filing fees, prove all taxes were paid, and pass English, government and civics exams. There is nothing forgiving about the process. Many people will be excluded because of the extreme requirements. Serious criminal histories will not be forgiven.

2. Myth: DREAM Act will open the floodgates to mass chain migration.
Reality: In my earlier post on Anchor Babies and the 14th Amendment, I gave specific examples of how long it takes for a U.S. citizen child to sponsor a parent or sibling from Mexico, where the quota or backlog is really long, and how long it takes to sponsor a parent or sibling from Canada, where the quota is the "shortest". Now, add the DREAM Act to the mix, and it's even longer for everyone. The DREAM Act, as passed by the House and to be voted on by the Senate, makes this program last for 13 years before a Dreamer becomes a U.S. citizen. Did you get that? 13 years! Applicants must spend 10 years in nonimmigrant temporary status, followed by three years of permanent green card status before becoming U.S. citizens. Only then can a U.S. citizen Dreamer sponsor a parent or sibling, and the Dreamer must be at least 21 years old.

Taking my examples from the earlier blog post, which used the State Department's September 2010 Visa Bulletin (monthly report of the quota and visa availability worldwide), the results of this "massive chain migration" will be as follows:

a) U.S. citizen Dreamer sponsoring a parent from Mexico: The category is "Immediate relative" (not subject to any quota). It will take 13 years of DREAM nonimmigrant status plus another 10 years if the parent lived in the U.S. illegally for a year or more (whether the parent entered illegally or arrived with a visa and overstayed by a year or more). This is because of the bar to adjusting status in the U.S. if the parent entered illegally or had unauthorized stay. As a penalty, he or she must process the visa abroad. Leaving the U.S. triggers the 10-year bar to re-entry, meaning the parent must reside abroad for 10 years before coming back to the U.S. with a green card. (There are rare exceptions to the 10-year bar.)

b) U.S. citizen Dreamer sponsors a Mexican Sibling: This is the fourth preference category which is subject to the quota. It will take 13 years from DREAM eligibility to sponsor the sibling, followed by a 16-year quota delay, plus 10 years living abroad if subject to the 10-year bar. Neither the Mexican parent nor sibling is eligible for a waiver of the bar because the U.S. citizen Dreamer adult child or sibling is not a qualifying relative for the waiver.

c) U.S. citizen Dreamer sponsors a Canadian (or French or Brazilian) parent: The parent is an immediate relative not subject to the quota. But, if the parent entered illegally, it will be 13 years to sponsor the parent and another 10 because of the bar to re-entry as described above.

d) U.S. citizen Dreamer sponsors a Canadian (or French or Brazilian) sibling. Again, fourth preference, 13 years for Dreamer to sponsor, followed by 9 years quota delay, followed by 10 years if subject to the 10-year bar.

If the immigrating parents or siblings live overseas and were never in the U.S. unlawfully for six months or more, they will not be coming to the U.S. for at least 13 years for the parents, and another 16 years if a Mexican sibling or another 9 years if a Canadian sibling. (All of the above assumes Congress has still not removed the bars, and has not changed the annual visa allocations by country so quotas remain similar to what they were back in September 2010.)

In sum, we're looking at some middle aged to elderly Dreamers becoming sponsors of elderly parents and siblings, who by then will prefer to remain in their home countries. Or, they could die waiting.

Continue reading "Anti-DREAM Act Rhetoric: Busting the Myths" »

On December 9, 2010, the Senate voted to withdraw its version of the DREAM Act, S. 3992, and to take up the House version, H.R. 6497, that was passed on December 8. The Senate still needs to plow through other tough legislation before it will vote on DREAM, but it is anticipated DREAM will be voted on next week. In the meantime, supporters should continue to fax or email the Senate in the next few days because at least 60 votes are needed to pass DREAM.

The House version has the two five-year periods of "conditional nonimmigrant status" before adjusting to permanent residence or green card status, the higher "surcharge" filing fees, and ineligibility for Stafford loans. It's not the best bill we could have hoped for, but it's better than no bill at all and will grant relief to young people who have grown up in the U.S. I will post a more thorough analysis of H.R. 6497 shortly.

The DREAM Act has gained incredible momentum among young people, educators, immigrant communities, the military, employers, and across many other segments of the population across the country. Undocumented students and young people have shown they are brave to come forward in the limelight; they are organized, dedicated and eloquent advocates. Meanwhile, as I cited in my earlier post, Congress to Vote on DREAM Act, the Congressional Budget Office and other organizations and economists have shown that the DREAM Act will be economically good for the country.

Today the House of Representatives bravely passed the DREAM Act by 216 to 198. It has taken a decade to get to this point. The bill, known as Development, Relief, and Education for Alien Minors Act of 2010, was attached to H.R. 5281 and was originally filed as H.R. 6497. This bill differs from the Senate bill S. 3992, which will be voted upon tomorrow morning. The Senate needs 60 favorable votes to pass. Keep making those calls to the Senate: 1-866-966-5161 or email.

Key differences in the two bills are that the House bill grants conditional nonimmigrant status in two five-year periods before students can file for green cards, whereas the Senate bill has just one 10-year period of status. The House version has a different fee structure and kicks in a $2000 fee for the second five-year period. The two bills vary as to when the higher education or military requirements must be met, and they vary as to when the deadline for initial application is required. The House bill makes DREAM Act students ineligible for Stafford loans while the Senate bill permits them. There are several other minor differences.

In the final roll call, , the Washington delegation was split with most voting for the bill except Representatives Hastings, Baird and Reichart. Rep. McMorris Roberts did not vote.

The House of Representatives is scheduled to vote on the DREAM Act later this morning. This is the first significant piece of legislation to actually help immigrants in over a decade. On Monday, over in the Senate, Senator Harry Reid (D-NV) filed a cloture motion to end debate to avoid a filibuster on S. 3992. Another attempt to get 60 votes is anticipated for this afternoon. Supporters should call or email Congress this morning:

Representatives: 1-866-967-6018
Senators: 1-866-966-5161
Email Representative and Senators

A Congressional Budget Office report released earlier this week stated that DREAM would cut the deficit by $1.4 billion and would bring in $2.3 billion in revenues over the next decade. This supports what Dreamers and their advocats as well as other economic researchers have been saying all along, that legalizing close to two million young people who have grown up here for most of their lives is a net economic benefit to the country if we keep them in school. It also helps our military with preparedness. The Obama Administration is supporting the DREAM Act. More importantly, over 70% of the public supports the DREAM Act.

Senator Reid introduced the 5th version of the bill last week as S. 3992. The new version makes the DREAM Act more difficult for young people to qualify and is an obvious attempt to broker a compromise with Senators who were on the fence despite earlier versions of DREAM Act having been supported by both sides of the aisle for close to a decade now. S.3992 would allow students who were brought to the U.S. before age 16 and have been here for at least five years to file for a new "conditional non-immigrant status", a status not found elsewhere in the immigration laws. They would need to be in such status for 10 years rather than the previously proposed six years before they could obtain lawful permanent residence. They could become U.S. citizens once they have held green cards for three years. Obviously, the lengthy process was meant to prevent these young people from sponsoring their parents anytime soon, which they cannot do anyway until they are over 21 and are U.S. citizens. Ironically, complaints from the anti-immigrant crowd that DREAM would benefit too many older adults and not just young people will be the result anyway with a 10+-year program. 29 is the age-limit to apply but a 29-year-old will not have a green card until he or she is 39. Meanwhile, other provisions of the Senate version would prevent students receiving in-state tuition rates and would prevent them from qualifying if they have certain misdemeanors. In both bills, applicants would need to complete high school or earn a GED, enroll in higher education or join the military, pass an English and civics exam and pay back taxes if not paid previously. The Senate bill would also require good moral character since date of entry versus date of enactment.

Continue reading "Congress to vote on DREAM Act Today" »

A good mind is a terrible thing to waste, especially the mind of a motivated young person. And, I'm not talking about wasting a brain to drugs or crime. Instead, I'm talking about wasting the minds of tens of thousands of young people in the U.S. every year who have grown up here and are anxious to contribute to America, but who cannot go to college, get jobs, drive cars, or join the military simply because they lack papers to be here lawfully through no fault of their own. Most came when they were small children and were not capable of making decisions on their own. In my law practice, I have met young people who did not even know they were in the U.S. illegally. Until they went to sign up for drivers training, applied for a pilot or professional license, or tried to fill out the FAFSA form for college financial aid, these kids always thought they were Americans. Only then did their parents reveal the family secret about their undocumented status. To say the students, their mentors or teachers were shocked would be an understatement. Why continue to punish them for their parents' decisions when they are motivated to succeed and contribute to our country?

What is better for the United States? To deport these ambitious young people to countries they have never known or no longer remember? Let them languish with nothing to do? Or let them settle for a life of menial labor where they can be taken advantage of? We should be encouraging them to reach for the stars, and enrich our nation with their abilities and desire to lead. If they want to find the cure for cancer or improve the environment or become teachers, we should encourage them to do so. Why does the anti-immigrant crowd not want every child in America to succeed as we would want for our own children and our neighbors' children? If you feel as I do, please contact your Senator and Representative in Congress THIS WEEK and ask him or her to support the DREAM Act.

Senator Harry Reid of Nevada is predicted to file for cloture in the coming week with anticipated action on the Development, Relief and Education of Alien Minors Act, or DREAM Act. Building upon a decade of bipartisan support for the DREAM Act, it would be a fantastic accomplishment if the lame duck Congress enacted this bill and did what is right, moral, humane, and sensible, not to mention good for our country. Whether the bill gets acted upon this week or next term, the U.S. Congress really needs to do something quickly for this large group of young people. Migration Policy Institute estimates that there are roughly two million people or 65,000 graduating seniors every year who currently lack post-high school options. There are no longer any justifiable excuses not to pass the DREAM Act.

The DREAM Act would put young people on the path to green cards and U.S. citizenship if they complete high school and are willing to go to college or join the U.S. military. Eligible students, who graduate from a U.S. high school, will become conditional lawful permanent residents. They will then be required to earn citizenship by pursuing higher education or military service over a six-year period. The DREAM Act is supported by the Defense Department so that it can expand its recruiting pool.

Continue reading "PASS THE DREAM ACT: A Good Mind is a Terrible Thing To Waste" »