US Immigration News & Commentary

It’s a common issue arising in the area of immigration law. A US citizen marries someone in the United States who is here unlawfully and because they entered without a visa they must return to their home country if they want to obtain a green card. In most instances that means that the foreign spouse would be subject to at least a 3 year bar to re-entry and possibly a 10 year bar based on the length of their unlawful presence in the United States. There is an application process through with the 3 or 10 year bar can be waived but it’s lengthy and requires the foreign national spouse to be outside of the United States for a prolonged time, sometimes many years.

That can mean serious hardship to the family, both financially and emotionally, and many simply choose to live in the shadows.

However, circumstances may be changing enough that some people may now choose to come forward.

As reported in today’s New York Times, the Obama administration is proposing a rule changes that would allow a provisional waiver to be granted while the foreign spouse is still inside the United States and also streamline the consular process so that the green card is granted in a matter of weeks rather than months.

“Citizenship and Immigration Services proposes to allow the immigrants to obtain a provisional waiver in the United States, before they leave for their countries to pick up their visas. Having the waiver in hand will allow them to depart knowing that they will almost certainly be able to return, officials said. The agency is also seeking to sharply streamline the process to cut down the wait times for visas to a few weeks at most.

“The goal is to substantially reduce the time that the U.S. citizen is separated from the spouse or child when that separation would yield an extreme hardship,” said Alejandro Mayorkas, the director of the immigration agency.“

This is a developing story and I’ll update it as new information comes in.

In the adjudications context: The USCIS has provided internal guidance that filings based on same-sex marriages are to be held in abeyance rather than rejected pending the outcome of the DOMA activity. What that means is that even if the I-485 isn’t adjudicated right away it’s possible to get employment authorization and proof of the right to be in the United States while the issues are worked out.

In the removal context: Manhattan Immigration Judge, Terry A. Bain, and the DHS trial attorney agreed to halt the removal of Monica Alcota, who was married to Cristina Ojeda, a US citizen, Connecticut in 2010, based on the argument that their same-sex marriage should be recognized for the purposes of immigration benefits.

Recently the Obama administration decided that it will no longer defend the Defense of Marriage Act in court. The Defense of Marriage Act states that federal policy is that marriage is between one man and one woman. Therefore, despite a general USCIS policy that states that marriages which are valid in the jurisdiction in which they took place, same-sex marriages are not recognized even if they’re legal where they took place.

All of that could change if the US Supreme Court rules that the DOMA is unconstitutional, which is likely as the government will no longer be defending the law. Should that happen, or should it be repealed, same-sex marriages should be recognized by the USCIS for the purposes of family based petitions.

Permanent resident whose petitioning spouse passed away filed for citizenship. The USCIS challenged him about the validity of the original marriage and did not make a decision on the case. More than 120 days passed so we filed a 1447(b) action in federal court. The USCIS subsequently denied the naturalization application based on the fact that he was working for the government outside of the US for much of the time after his naturalization interview and because he filed 1 day too early. The AUSA filed a motion to dismiss. In response we argued that the USCIS did not have jurisdiction over the matter after the 1447(b) action was filed, the delay caused by the USCIS should not be used against the petitioner, and that he filed on time (3 months vs. 90 days). The judge agreed that the USCIS lost jurisdiction after the 1447(b) action was filed, frowned upon the reasons for the denial, and remanded the matter back to the USCIS for a prompt decision.

The USCIS dropped the inquiry into the marriage, approved the petition, and scheduled the client for an oath ceremony.

The Department of Justice is investigating Arizona Sheriff Joe Arpaio, known for parading immigrants in chains to his “tent city”, for racial profiling.

The DOJ is investigating whether or not deputies are engaged in “patterns or practices of discriminatory police practices and unconstitutional searches and seizures.”

(how could they not be if pretty much the only people they stop are folks who look “Hispanic” and they do their “sweeps” in Hispanic neighborhoods?)

Calls for an investigation from officials such as Phoenix Mayor Phil Gordon and some Democratic lawmakers, as well as justifiable outrage by immigrant rights groups, likely led to the investigation – described as the first of its kind related directly to immigration.

The sheriff vows to fight the federal government – of course.

Good luck with that Joe!

read more here

On 11/25/2008, Secretary of Defense Robert Gates signed a memorandum allowing the Army, Navy, Air Force, to recruit non-citizens and non-residents.

Titled “Military Accessions Vital to the National Interest” (MAVNI), the program allows some non-citizens who are legally present in the United States to join the military. Based on joining the military the individuals can then immediately apply for citizenship without ever becoming a permanent resident.

The program is limited in its duration and scope at this time. The military will only recruit 1000 people and the program will only last 12 months.

Individuals in the following statuses are eligible:

Asylee, refugee, Temporary Protected Status (TPS), or, E, F, H, I, J, K, L, M, O, P, Q, R, S, T, TC, TD, TN, U, or V.

The individual must have been in valid status in one or more of those categories for at least two years
immediately prior to the enlistment date and must not have had any single absence from the United States of
more than 90 days during the two year period immediately preceding the date of enlistment in the military.

The military is looking for physicians and nurses as well as individuals with language skills/cultural knowledge.

The military is looking for individuals with the following language skills/cultural association:

Languages

• Albanian
• Amharic
• Arabic
• Azerbaijani
• Bengali
• Burmese
• Cambodian-Khmer
• Chinese
• Czech
• Hausa
• Hindi
• Hungarian
• Igbo
• Indonesian
• Korean
• Kurdish
• Lao
• Malay
• Malayalam
• Moro
• Nepalese
• Persian [Dari &
Farsi]
• Polish
• Punjabi
• Pushtu (aka Pashto)
• Russian
• Sindhi
• Sinhalese
• Somali
• Swahili
• Tamil
• Turkish
• Turkmen
• Urdu
• Yoruba

Individuals who are out of status or here without authorization are NOT eligible.
[PDF}Fact Sheet on the Program

[PDF]More important information on the program

A story in the Washington Post exposes the Immigration and Customs Enforcement National Fugitive Operations Program – a program that received over $600 million from congress – as a federally funded racial profiling operation.

The program which, as it is named, is intended to be used to round up fugitives, is an abject failure by that measure. In 2007 nearly 1/2 of the people arrested were not fugitives from the law. The USICE says that number is going down but since they specifically allow non-fugitive arrests to be counted towards the quota that’s nonsense. In fact, it should be zero if they are only going after specific fugitives not stopping minorities at random. Clearly the USICE is simply going up to brown people and asking for their papers – and the video footage in the story supports exactly that conclusion.

In fact, according to the Post, some employees say that they were specifically directed to arrest non-fugitives to boost their arrest numbers. The USCIS and USDHS have declined to actually investigate the claims. That makes sense since it’s official policy.

The video evidence makes it clear the USICE officers were simply stopping men of Hispanic descent without reasonable cause or suspicion. The men detained included, Ernest Guillen, who was merely stopping for a cup of coffee on his way to be with his US citizen son who was receiving chemotherapy at John’s Hopkins and another man who was detained for 18 days even though he was in the United States legally.

The questions for the Obama administration are: 1) are you going to maintain a policy of racial profiling? 2) If you do believe racial profiling to be effective and are going to continue it will you expand it to include other agencies not related to immigration?

Or perhaps it’d be a better idea to use that muscle of yours to get comprehensive immigration reform passed.

Newly appointed Secretary of the DHS, Janet Napolitano (on NPR), shows that there will be little change between the Bush Administration and the Obama Administration with regards to immigration policy.

She’s for a border fence – in places where physically appropriate – but thinks the border needs to be more militarized (more boots on the ground) and also more technologically advanced (more expensive web cams).

She has no view (and probably little understanding of) the push factors that cause people to risk death to come to the US for work and only addresses the pull by saying that she’ll deport more people more quickly and punish employers more harshly.

As far as immigration procedures and policies, she will leave that up to Congress and offers no opinion at all.

Looks like more of the same unless Congress implements comprehensive immigration reform some time soon.

As an aside, someone might want to point out to Secretary Napolitano that the path isn’t from undocumented immigrant to citizen but from undocumented immigrant to permanent resident. It really sounds like she doesn’t know that.

Tom Friedman has an op-ed that may seem counterintuitive to some.

Referencing a statement by Shekhar Gupta of the Indian Express..

“All you need to do is grant visas to two million Indians, Chinese and Koreans. We will buy up all the subprime homes. We will work 18 hours a day to pay for them. We will immediately improve your savings rate — no Indian bank today has more than 2 percent nonperforming loans because not paying your mortgage is considered shameful here. And we will start new companies to create our own jobs and jobs for more Americans.”

Mr. Friedman points out that our economy was built through the power of migrant labor and that our status as technology leader is directly tied to our recent immigration patterns so more, not less, immigration is a good idea. In other words, protectionism, at least in some forms, will harm not help us.

Congress recently bought false [PDF] right-wing spin about H1B visas and banks using TARP funds and voted to numerous jobs and our rate of patents goes up with the rise in tech immigrants.

The workers are going to ply their trade somewhere and if not in the US it will be in their home countries meaning that those countries will reap the benefits of workers trained in our excellent educational system.

This is not a path that allows America to remain competitive in the future.

Some state & local governments are having second thoughts about trying to control immigration through the use of local laws as the cost has proven to be prohibitive and the measures a PR nightmare.

An example of some of the thinking that should have been done beforehand:

“Republican state Rep. Stephen Clark, author of one proposal, wants to delay the bill for a year to study the economic impact of illegal immigrants on the state.

Gov. Jon Huntsman Jr., a Republican, supports a delay, says spokeswoman Lisa Roskelley.

“We are in the process of making major cuts all across the board in government, including public education,” says Clark, who puts the cost of implementing the immigration law at $1.7 million. “We believe now is not the time to invest that money into this issue, especially when we don’t know whether illegal immigration is a financial plus or minus to the state.”

This isn’t surprising as these are merely red-meat election issues not measures that can actually affect migration patterns in any significant measure and it’s not unreasonable to believe that pushing undocumented workers out of your area can have an adverse impact on the local economy either through loss of labor or because the locality is shunned or even sued for discrimination.

A smart comprehensive plan or even something simple like raising visa caps and eliminating the 2A visa category would do a lot to reduce “illegal” immigration if that’s your goal. If your goal is simply to keep the brown people out (as the Americans in the past wanted to keep out the Irish, the Jews, the Italians, etc..) then that boat has sailed.