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New USCIS Fees Are Unreasonably High

The U.S. Citizenship and Immigration Service (USCIS) announced on September 24 that fees for immigration petitions and applications will go up an average of 10% on November 23, 2010. Any petition or application postmarked on or after that date but which does not contain the new fee will be rejected as improperly filed.

The USCIS explained that the fee increase is necessary because it has experienced a reduction in federal fund appropriation and lower than projected fee revenue in 2008, 2009, and low revenue for this year.

Fees for 30 applications and petitions will increase while fees for 6 applications will be reduced. The fee for naturalization application will be unchanged.

The 6 applications and petitions that have reduced fees because of lower processing costs are Petition for Alien Fiancé (I-129F) which will be reduced from $455 to $340; Application to Extend/Change Nonimmigrant Status (I-539), $300 to $290; Application to Adjust Status from Temporary to Permanent Residents (I-698), $1370 to $1020; Application for Family Unity Benefits (I-817), $440 to $435; Application for Replacement Naturalization/Citizenship Document (N-565), $380 to $345; and Application for Travel Document (I-131) when filed for Refugee Travel Documents.

Among the applications and petitions affected by the fee increase are Petition for Alien Relative (I-130), from $355 to $420; Immigrant Petition for Alien Worker (I-140) from $475 to $580; Application for Employment Authorization (I-765), from $340 to $380; Application to Replace Green Card (I-90), from $290 to $365; Application to Adjust Status (I-485) from $930 to $985; Notice of Appeal or Motion (I-290B), from $585 to $630.

Three new fees will be imposed, namely, a $165 fee for recovering USCIS costs of processing immigrant visas granted by the Department of State, a $6230 fee for Application for Regional Center under the Immigrant Investor Pilot Program and a $615 for Civil Surgeon Designation.

Considering that the USCIS fees increased by 66% only three years ago the new fees are clearly excessive. The increase will hurt families, lower- wage immigrants, and small businesses.

It should also be pointed out that the fee for citizenship applications was increased by about 70% to $675 in 2007. This fee hike has been a serious obstacle to many immigrants who want to become citizens.

Immigrant advocates maintain that the fee increase is not justified as it will not improve the quality of immigration services. According to them, immigration services have deteriorated since the significant fee increase in 2007.

In opposing the fee hike, the American Immigration Lawyers Association (AILA) said that “many of the government expenses being underwritten by these fees are unrelated to the services for which fees are being paid. These are matters of public benefit and should be funded by appropriations, not applicants.”

AILA in its leadership blog also said that “these fee increases feel like a punch in the stomach… because they come at a time when the quality of decision-making and the ability to correct even the simplest errors or address basic problems with the USCIS are at an all-time low.”

Requirements for Grandfathering Spouse Under Section 245(i)

An alien who is out of status or who entered the U.S. without inspection or as a crewman is not allowed to adjust status to that of a permanent resident. The alien has to go to a U.S. Consulate abroad for immigrant visa processing and this means that the alien may be subject to the 3 year or 10 year bar for being unlawfully present in the U.S.

But there is a provision under the Immigration and Nationality Act known as Section 245(i) which allows aliens as described above to adjust status in the U.S. To be covered or “grandfathered” under the said section, an alien must be the beneficiary of a visa petition or labor certification that was filed on or before April 30, 2001.

The alien continues to be grandfathered until he/she adjusts status and there is no limit to the number of adjustment applications that the alien may file. The alien is not limited to adjusting on the basis of the qualifying petition or application but may seek to adjust on any other basis for which the alien is eligible.

Derivative beneficiaries such as spouses and children may benefit from the law. But there are requirements to meet before a derivative spouse or child is considered grandfathered.

If the spouse or child relationship existed at the time that the visa petition or labor certification was filed, Section 245(i) benefits apply even if at the time of the adjustment of the spouse or child (based on another petition, application, or any other proper basis) the spouse is already divorced from the principal beneficiary or the child is already 21.

If the spouse or child relationship began after the filing of the grandfathered petition or application and it still exists at the time of the adjustment of the principal beneficiary, Section 245(i) applies to the spouse or child if they adjust as dependents of the principal alien.

In a recent case (Matter of Legaspi), Michael Legaspi, a Filipino, married in 2003 a lawful permanent resident who was a grandfathered alien under Section 245(i). The spouse was grandfathered because her paternal grandfather had filed a visa petition for her father in 1987 and she was a derivative beneficiary of her father.

But she did not adjust her status under her grandfather’s petition but under an employment based petition filed in 2002.

Michael Legaspi argued that he was eligible to adjust under Section 245(i) because his wife was a grandfathered alien.

The Board of Immigration Appeals held that he was not a grandfathered alien because his wife was not the principal beneficiary of the 1987 visa petition. He did not have a qualifying relationship to his wife’s father who was the principal beneficiary of the 1987 petition. Therefore he could not be grandfathered as a derivative.

In addition, the Board ruled that had he and his wife been married when the 1987 petition was filed, she would not have qualified as a derivative beneficiary as she would not have met the definition of a “child” under immigration rules.

Senate to Vote on DREAM Act

Senate Majority Leader Harry Reid announced on September 14 that the DREAM Act (Development Relief and Education for Alien Minors Act) will be brought to the Senate floor for a vote next week. It will be attached as an amendment to the Defense Authorization bill.

There is a strong bipartisan support for the bill. The last time the bill came to a vote in the Senate was 2007. Ten Republican senators voted for it.

The bill has been introduced in various forms several times in the U.S. Congress since 2001. It was included in the Comprehensive Immigration Reform Act of 2006, which was passed by the Senate, and the Comprehensive Immigration Reform Act of 2007.

If the bill passes the Senate it will go to a conference committee reconciliation and then to both House and Senate for a final vote.

The bill would allow certain undocumented students to adjust their status to that of a conditional permanent resident for six years.

To be eligible for benefits under the bill, the student must have entered the U.S. before the age of 16 and physically present for a continuous period of not less than 5 years immediately preceding the enactment. The student must be less than 35 years old when the law is enacted.

He must also have been enrolled in college or earned a high school diploma or GED certificate. He must be of good moral character.

As a conditional resident he will be eligible to obtain a driver’s license, attend college as an in-state resident, work legally, obtain a social security number, and travel outside the U.S.

To remove the condition the student would have to either 1) earn a degree from a community college; or 2) complete at least two years of a bachelor’s degree; or 3) serve in the U.S. military for at least two years.

According to an analysis made by the Migration Policy Institute, 726,000 undocumented young adults would be eligible for conditional permanent resident status and that approximately 114,000 would be eligible for permanent resident status after six years.

Supporters of the bill have argued that these students were brought to the U.S. by their parents when they were young and therefore they should not be held accountable for their parents’ action.

Many of these students are smart and talented and have excelled in their school, in sports, and in the fields of arts, science and technology. Because of their undocumented immigration status they have been unable to pursue their dreams of going to college.

Legalizing them would strengthen our economic infrastructure as it would expand our educated workforce.

While some argue that passage of the DREAM Act would distract from comprehensive immigration reform, the fact that it has been so close to being passed before should be a good reason for our community to strongly support it and actively campaign for its immediate passage. We should take action now and urge our senators to vote for the bill.

Why the Undocumented Immigrant Population is Down

There has been a sharp decline in the number of unauthorized immigrants in the United States, according to a report released on September 1 by the Pew Hispanic Center, a nonpartisan research group.  Annual unauthorized immigration inflow between March 2007 and March 2009 were almost two-thirds smaller compared to the period between March 2000 and March 2005.

The Department of Homeland Security (DHS) was quick to take credit.  Matt Chandler, DHS Deputy Press Secretary said in a press release that DHS enforcement measures have been a major factor in this dramatic drop.

According to Mr. Chandler, the DHS has doubled the number of border control agents from 10,000 in 2004 to more than 20,000 today.  It has cracked down on more employers that hire illegal labor, has increased seizures of illegal goods, and has removed criminal aliens at an unprecedented level.

Interestingly, some states directly affected by increased DHS enforcement and federal deployment of the National Guard to the border did not show extremely significant reduction in the unauthorized immigrant population.  Texas, for instance which is a vocal anti-immigration state, experienced only a negligible drop.

On the other hand, states that suffered from severe recession, such as Florida, Nevada and Virginia experienced large drops in unauthorized immigration in 2008 and 2009.  Arizona had a 20% drop before their harsh anti-immigrant law went into effect.  The decline in unauthorized immigration seemed largely the result of the housing bust that ended nearly all new home and real estate development in these states in 2008.

Closer examination into the historic rates of unauthorized immigration flow between the years 2000 and 2009 does not establish a convincing relationship between DHS activity and the steep drop in 2008 and 2009.  If the DHS’s claims were true, the data would show a steady decline in unauthorized immigration flow between 2004 and the present.  However, the data does not show a decrease in unauthorized immigrant flow compared to increased DHS activity.  In fact it widely fluctuates, and finally shows a dramatic decline between 2008 and 2009.

The data in the reports shows that the decreased flow of immigrants was due largely to a combination of abysmal economic conditions and the high levels of unemployment in industries that affected immigrants the most such as construction, hospitality and service.  In the past decade unauthorized immigration flow closely matched unemployment rates and economic fluctuations.

Previous to the drop described in the Pew Report, another drastic decline occurred between 2000 and 2002 coincidentally around the last recession.  Much like the current drop in immigrant flow, the previous drop coincided with weak job prospects and precarious economic conditions.  As long as economic conditions stay the way they are, unauthorized immigration flow will either remain the same or fall further only to pick up once confidence in the economy returns.

This Pew Hispanic Report has widespread implications for the current immigration debate.  Harsh enforcement measures will not fix our broken immigration system, regardless of what Mr. Chandler or Arizona Gov. Jan Brewer say.

It will make more sense to assimilate the unauthorized population and channel our strained government resources to improve our economy rather than to build fences on the border.

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