Immigration News & Analysis, Maggio & Kattar’s electronic immigration newsletter, offers up-to-date information and insightful commentary on U.S. immigration law and policy. Immigration News & Analysis is published monthly in an electronic format and is available via e-mail. Subscribe to Immigration News & Analysis.
Expanded Immigration Enforcement Efforts
The biggest immigration story in the news is the late September enactment of legislation to build a fence along the U.S.-Mexico border. Despite tremendous skepticism in the press that the border fence will ever be built, an untold and more significant immigration enforcement story has not been in the press: The U.S. Citizenship and Immigration Services ("CIS"), the immigration agency that adjudicates immigrant (green card) and nonimmigrant (temporary) visa applications, has begun a new, vigorous campaign to place more people in deportation proceedings. How will CIS become more involved in deporting people? Who is more likely to be deported now? And, why will this new deportation campaign be welcomed by some foreign nationals?
Historically, when a foreign national applies for permanent resident status or to change status from one nonimmigrant visa classification to another and the application is denied, the foreign national can either leave the United States or remain in the United States, often unlawfully. In some instances, the individual pursued reconsideration of the denial, appealed the denied decision, or even applied again at a U.S. consulate. But usually the person was not placed into removal proceedings. No more. According to an internal CIS memo obtained by the American Immigration Lawyers Association ("AILA"), deportation proceedings must be initiated by the issuance of a Notice To Appear ("NTA") for removal proceedings in order for a CIS negative decision to be statistically counted. In other words, negative CIS decisions (denials) that are not followed by deportation proceedings will be irrelevant statistically. Statistical relevance is significant because CIS funding and staffing are driven by the number of cases each CIS office and officer completes. CIS adjudicators certainly will connect the dots. More statistics, more funding.
And, the practical consequences for foreign nationals? This new and dramatic change of policy will result in removal proceedings against thousands of foreign nationals who previously were not placed in removal proceedings. The ripple effect, of course, is that the already severely backlogged immigration courts - where it now routinely takes many months for a removal hearing to be scheduled - will be even further backlogged with new deportation cases for denied immigrant and nonimmigrant visa applicants rather than for persons apprehended at the border.
Ironically, this new deportation campaign will be welcomed news for some foreign nationals who want and need to be placed in removal proceedings in order to renew an application for permanent resident status. Yes, that's right. Certain applications for permanent resident status can only be renewed (appealed) before an immigration judge, and many Department of Homeland Security ("DHS") offices long have ignored pleas by such foreign nationals for an NTA so they can renew their green card applications before an immigration judge. Over the years, we actually have been retained many times to help such people get placed in deportation proceedings. No more, or so it seems.
So, what about the "virtual fence" at the U.S. border "to stop illegal immigration" for which Congress recently authorized billions of dollars? That story continues to unfolds and far from silently. The Washington Post recently observed in an article headlined "Plenty of Holes Seen in a 'Virtual Fence'" that in addition to overcoming technological and management problems that have derailed similar remote-sensing networks set up over the decades shortly after Congress authorized the fence, lawmakers rushed to approve separate legislation to ensure that the fence may never be built. Apparently, congressional leaders pledged in writing that Native American Tribes, members of Congress, governors and local leaders will have a say in "the exact placement" of any structures. Moreover, Homeland Security Secretary Michael Chertoff has acquired the flexibility to use alternatives when fencing is "ineffective or impractical." The Post also points out that the views of the Mexican government must be considered before any fence, virtual or otherwise, is constructed on the U.S.- Mexico border.
"The Fence" remains, in our opinion as well as by others, more fluff than substance, another get-tough public relations ploy enacted with much fanfare as Congress adjourns to prepare for the upcoming November elections - elections in which it is agreed immigration is a major issue.
Premium Processing Expanded to Certain I-140 Beneficiaries
CIS announced late last month the addition of three new categories to its Premium Processing Services, which allows U.S. businesses to pay a $1,000 premium processing fee in exchange for 15-calendar day processing of their case. Historically, premium processing has been available for Form I-129 nonimmigrant worker cases, such as H-1B specialty workers, L-1 intracompany transferees, and O-1 extraordinary ability workers. Now, I-140 visa petitions will be accepted under the premium processing program for the following immigrant visa categories:
- outstanding professors and researchers, under the employment-based first preference;
- members of professions with advanced degrees or a bachelors degree plus five years of progressive experience not seeking a national interest waiver of the job offer; and
- professional and unskilled workers under the employment-based third preference category.
Practically speaking, not many employers or foreign nationals will be interested in using the premium processing program for I-140 immigrant visa petitions because, at least at the moment, an immigrant visa petition can be filed concurrently with an application for adjustment of status (Form I-485) so long as the foreign national's priority date (place in line for their immigrant visa) is current. (See article below on immigrant visa and priority dates.) In other words, the foreign national already receives the desired benefits without the need for expedited processing.
However, certain H-1B workers who cannot file for adjustment of status because of immigrant visa backlogs may benefit greatly from the CIS' new premium processing program. A foreign national with an approved I-140 immigrant visa petition who is precluded from filing for adjustment of status because his or her priority date is not current may extend his or her H-1B status in three-year increments past the six-year limit.
First PERM Case Decided by DOL's Administrative Appellate Agency
The Board of Alien Labor Certification Appeals ("BALCA"), the Department of Labor's administrative appeals body, decided its first PERM appeal against the Department of Labor ("DOL"). In this significant decision, BALCA ruled in the Matter of HealthAmerica that DOL abused its discretion in denying a labor certification application based upon a non-material typographical error where the employer was able to present clear evidence demonstrating that it was otherwise in full compliance with the relevant law. DOL has been denying PERM applications that otherwise would be approvable for insignificant mistakes, such as neglecting to list the state of employment even though the postal zip code appears immediately thereafter. Unfortunately, such denials probably will continue because PERM labor certification applications are processed electronically, and thus it is doubtful that DOL's program can be changed to distinguish between non-material and material omissions. Consequently, employers will have to continue to address such denials through a Motion to Reconsider.
DOL Guidance on Conversion and Extension of RIR Eligibility
The Department of Labor ("DOL") has announced that traditional labor certification applications filed prior to March 28, 2005 without pre-filing recruitment completed, now may be converted to a faster-track Reduction in Recruitment ("RIR") case. This development will benefit those whose labor certification applications were filed without prior recruitment in order to meet the April 30, 2001 deadline to qualify for Section 245(i) coverage. This provision of the immigration law permits persons who are not normally eligible to adjust their status to permanent resident status while in the United States to do so if they were physically present in the United States on December 21, 2000, and if their labor certification application or immigrant visa petition was submitted by April 30, 2001. Converting such traditional cases to an RIR case generally is recommended.
Greater Backlogs for Most Immigrant Visa Categories Coupled With a Few Bright Lights
The State Department's Visa Bulletin for November reports some good news (shorter waits) for second preference (EB-2) professionals and persons of exceptional ability born in India, and most skilled workers and unskilled workers (EB-3). On the other hand, a significant backlog (a year) now exists for certain Schedule A workers. In the family-based preference categories, the news is not good, as all categories are experiencing longer waits, even longer than a month ago. (The November Visa Bulletin can be viewed online. See also the September, July/August and June issues of Immigration News & Analysis.)
How does the immigrant visa allocation system really work and why are some countries significantly backlogged while others are not? In a nutshell, there are a limited number of immigrant visas available under each of the four family-based and the five employment-based immigrant visa categories. No more than 20,000 visas may be issued annually to persons born in any particular country, thus there are the same number of green cards available annually to persons born in India and China as there are for persons born in Bhutan and Iceland. There are, however, no limits on the number of immigrant visas available to the "immediate relatives" of American citizens (spouses of American citizens, the parents of American citizens whose sons and daughters are 21 or older, and the unmarried children under 21 of American. citizens.) A foreign national obtains a priority date or a place in line for an immigrant visa either by the filing of an immigrant visa petition (I-130 for family-based cases, I-140 for employment-based cases) with the CIS or a labor certification application with DOL on his or her behalf. To actually receive the visa, the foreign national then adjusts his or her status to permanent resident or obtains a visa abroad. An application for adjustment of status for permanent resident, however, may not be submitted to CIS, and an application for an immigrant visa may not be submitted to a U.S. consulate, until the foreign national's "priority date", or place in line under the immigrant visa preference system, is "current." The Visa Bulletin, the Department of State's monthly report on visa availability, lists current priority dates by preference category and nationality, as well as provides a detailed description of the U.S. immigrant visa system
Maggio & Kattar Attorneys Recognized as "The Best Lawyers in America"
Every year since the book "The Best Lawyers in America" has been published, which bases its conclusion on the recommendations and views of attorneys, Maggio & Kattar attorneys have been listed among the best attorneys in America. The latest edition of this book recognizes Michael Maggio, Andres Benach, and Alison Brown as among the best immigration attorneys in America. A commemorative advertisement of the best lawyers in America recently appeared in The Washington Post Sunday Magazine.