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Bill Eases Green Card Wait for Some Countries

There is both good news and bad news in the immigration bill that was overwhelmingly passed by the House of Representatives last November 29.

Because the bill seeks to eliminate per-country quotas for the employment-based categories and increase quotas for family-based applicants, but without adding new visas, a few countries will have shorter waiting times for a green card while other countries will see an increase in visa backlogs.

The bill, called the Fairness for High-Skilled Immigrants Act, was sponsored by Republican Congressman Jason Chaffetz of Utah along with known immigration hardliner Rep. Lamar Smith of Texas. It is on its way to the U.S. Senate and, once passed, President Obama is expected to sign it into law.

Current law places an annual visa cap of 140,000 for employment-based categories and 226,000 for family-based categories, and only 7% of that total number can be allocated to nationals of each country.

The bill will benefit employment-based applicants from India and China. Under the EB-3 category, the December 2011 cut-off dates are September 8, 2004 for China (April 22, 2003 for EB-3 Other Workers) and August 1, 2002 for India (July 22, 2002 for EB-3 Other Workers). For the EB-2 category, the cut-off date is March 15, 2008 for both countries. Their cut-off dates will significantly advance if the bill becomes law.

Since the bill does not create new visas, retrogression will worsen for other countries. The Philippines and the rest of the world will experience further retrogression in the EB-3 category, where the cut-off currently is January 15, 2006 (January 1, 2006 for Other Workers).

And although visa numbers are currently available to all countries other than India and China in the EB-2 category, their nationals would have to wait longer for a green card as a result of the bill.

By 2015, there would definitely be backlogs for all countries in both employment-based categories because under the bill there will only be one waiting line, and one cut-off date, for each category for all countries.

On the other hand, Filipinos and Mexicans stand to benefit from the changes in the family-based preferences. The 7% per-country cap will be raised to 15%, which could result in further retrogression for other countries. As more visas become available, the wait for a green card becomes shorter for many Filipino and Mexican families.

The need to attract talent and maintain competitiveness is the main reason behind the bill. Businesses that hire highly educated and skilled workers, particularly in science and technology, have been asking the government to ease the wait for employment-based green cards.

A significant number of employer-sponsored immigrants come from China and India but because of the annual cap and per-country limits their visa backlogs are larger. For example, according to a study an Indian professional sponsored for an EB-3 visa today would actually have to wait 70 years to get a green card because of the sheer number of visa applicants from India.

Not surprisingly, critics of the bill say that fairness to highly-skilled workers from China and India is unfairness to highly-skilled workers from other countries. By replacing one backlog with another, the bill is perceived to be favoring Chinese and Indian nationals at the expense of nationals of other countries.

It remains to be seen if Congress will at least make more visas available instead of just reallocating them. The real solution is comprehensive immigration reform but, given the current political climate, it seems unrealistic to expect one to be passed in the near future.

Guidelines for Deportation Review Finally Issued

Immigration authorities are reviewing new and pending deportation cases to find out which cases should be prioritized and which ones should be administratively closed.

As announced on November 17, 2011, the Department of Homeland Security has launched a review of incoming as well as pending removal cases, currently numbering about 300,000.

This implements the June 17 memorandum directing ICE (Immigration and Customs Enforcement) personnel to prioritize the removal of criminals and public safety risks and focus the use of the government’s limited resources.

It is also a timely response to mounting criticism that the policy in the June 17 memo had been implemented unevenly among ICE offices all over the country. A recent report by the American Immigration Lawyers Association and the American Immigration Council showed that many ICE agents and attorneys did not consider the memo binding absent further guidelines.

The November 17 memo and accompanying guidelines outlined a more formal review process and listed criteria to help ICE attorneys determine whether to accelerate the case or to favorably exercise prosecutorial discretion.

Cases involving aliens who committed serious crimes and are national security risks will generally be accelerated. Examples include suspected terrorists, those convicted of a felony and certain misdemeanors, as well as those who committed immigration violations such as fraud and illegal entry.

On the other hand, eight criteria are enumerated so ICE attorneys can more easily know if discretion should be exercised favorably. These include service in the armed forces, presence in the U.S. for at least 5 years coupled with a high school or college education, presence for at least 10 years for those over 65 years old, and having a serious mental or physical condition.

The new guidance only covers clear-cut cases and does not replace or supersede the factors in the June 17 memo. ICE attorneys are still required to consider the broader and more numerous factors in the June 17 memo in determining which cases to close or continue.

The initial stage of the review ends on January 13, 2012. A second stage is reported to begin on December 4, 2011, where pilot projects in selected immigration courts will closely examine the docket and focus on cases involving aliens arrested for deportation.

The review process is expected to relieve clogged immigration court dockets and preserve government resources for the removal of the most egregious of offenders.

Anyone with a pending deportation case who believes that he/she would be affected by the guidelines should seek the advice of a competent immigration attorney.

It must be remembered that the new policy is not an amnesty program. There is no right to a favorable exercise of discretion and, even if favorably exercised, prosecutorial discretion does not give the alien legal status. Any alien who is unlawfully present in the United States may be placed under removal proceedings.

However, the new guidelines make it clear that the full extent of the law should not be imposed with equal force on convicted felons and DREAM Act students, the sick and elderly with many years of residence and strong community ties, and other low priority immigrants. Unless comprehensive immigration reform is legislated by Congress, positive executive action such as this helps address the clamor for a humane immigration policy.

New Policy of Easing Deportation Unevenly Applied

When the Immigration and Customs Enforcement (ICE) in a memo last June instructed its personnel to avoid the deportation of “low priority” or non-criminal aliens, immigration advocates and immigrant communities all over the country welcomed it as a humane and sensible approach to immigration enforcement.

The Morton Memorandum, named after ICE Director John Morton, ordered its personnel to exercise “prosecutorial discretion” when handling cases of aliens who have no criminal history and are not risks to national security or public safety. It called on them to regularly exercise their discretion at any time during the immigration process in order to prioritize the use of the agency’s limited resources.

The memo listed at least 19 factors to be considered by ICE personnel when making enforcement decisions. These include lengthy residence in the U.S., pursuit of U.S. education, community ties, and having a U.S. citizen (USC) or lawful permanent resident (LPR) relative.

However, ICE offices apparently have not been following the memo in the past five months since it came into effect.

A survey of immigration practitioners by the American Immigration Lawyers Association (AILA) and the American Immigration Council (AIC) shows that implementation of the new policy has been sporadic at best.

For instance, in New York, removal proceedings were terminated for an alien who had been present since childhood and educated in the U.S. and had strong family and community ties.

On the other hand, relief was denied to a long-time LPR who had two misdemeanors from a long time ago but whose case involved many positive factors, including being a victim of domestic violence or serious crime, having a spouse with a severe illness, and being a primary caretaker of a sick or disabled minor relative.

In California, surveyed attorneys reported little to no change in practice since June. In one case involving an LPR with an abandonment charge, termination of removal proceedings was denied in spite of the equities of the case. The LPR had no criminal history or only minor offenses and had a USC/LPR relative; no negative factors were present.

Many ICE officers and attorneys were reported as having said that there is no change in policy or that things were “business as usual” until they get further guidance. For example, in the Honolulu ICE office, it was said that prosecutorial discretion is denied unless there are life threatening circumstances.

The findings also reveal that the standards are sometimes applied inconsistently or interpreted narrowly. In Florida, for example, an ICE attorney said that a prosecutorial discretion request would be considered at the beginning of the case and not at any other stage of the proceedings. An ICE agent in Seattle reportedly said that discretion to release an alien would be exercised only when a detention center is full.

Despite the clarity of the guidelines in the memo, there is evidently a gap between the leadership that issued the policy and the rank and file tasked to carry out the policy in practice. The AILA and AIC pressed the DHS and ICE in particular to issue additional guidance and hands-on training to its personnel.

In order to give effect to a policy not only approved at the executive level but in fact supported by President Obama, ICE agents and attorneys need to understand that it is their obligation to exercise discretion in accordance with the memo.

Income Requirements for the Affidavit of Support

In a family-based visa petition, the petitioner must submit an affidavit of support to show that the intending immigrant has adequate means of financial support and will not become a public charge, or someone who depends on the government for subsistence. A person who is likely to become a public charge is inadmissible or not eligible to become a lawful permanent resident.

The sponsor in an affidavit of support (Form I-864) must be a U.S. citizen, national or a lawful permanent resident, at least 18 years old, and domiciled within the United States or a U.S. territory or possession.

The rules require a sponsor to have the means to maintain an annual income equal to at least 125% of the Federal poverty line for the sponsor’s household size. The household size for purposes of Form I-864 includes the immigrant being sponsored as well as all immigrants previously sponsored.

Take for example a U.S. citizen who filed an I-130 petition for his parent and now must submit an affidavit of support. If the petitioner has a spouse and one dependent child, he must have a minimum income of $27,937, which is 125% of the poverty guideline for a four-member household.

If the sponsor’s income is not enough, assets of the sponsor, the sponsored immigrant, and other household members may be counted. Another option is to find a joint sponsor who meets the financial requirements.

To prove that the sponsor’s income meets 125% of the poverty guidelines, a copy of the latest tax return is usually determinative. However, immigration authorities may request proof that the sponsor has sufficient current income and the sponsor may need to provide current pay stubs and an employer letter.

Petitioners who are self-employed or have a business that shows a loss in their tax returns may still qualify as a sponsor if they have enough income or assets that are readily available or could be converted into cash within one year. Examples of these assets include savings, stocks and bonds, and personal property.

If real estate sought to be included as an asset is situated in an area with a depressed real estate market, the examiner might not be convinced that it is “readily convertible to cash” within one year. Furthermore, if the property is underwater or subject to debt greater than its current market value, the examiner might exclude it as substitute for income.

“Income” includes income from employment, pension, interest income, dividends, alimony and child support. Receipt of means-tested public benefits does not disqualify a petitioner from sponsoring an immigrant, although these benefits do not always count as income. For instance, supplemental security income (SSI), food stamps and Medicaid are not income, but unemployment compensation and workers’ compensation may be included.

Failure to file tax returns sometimes arises in the case of petitioners who have worked on a “cash basis”. In some cases, the tax returns also show incorrect filing status (such as filing as single when married) and improper dependent claims. Petitioners must make sure that they have properly filed all necessary tax returns, and if they did not, that they file amended or late-filed tax returns.

Concealment or misrepresentation of material facts relating to income, assets and household size may not only lead to a finding that the affidavit of support is not sufficient to overcome the public charge ground of inadmissibility. It could also expose the sponsor or joint sponsor to liability for criminal prosecution for submission of fraudulent immigration documents.

With Deportations on the Rise, Here are Some Pointers

The government deported a record-high 396,906 individuals in the last fiscal year which ended in September 2011. Ninety-percent of the removed aliens fall under a priority category such as criminal offenders and repeat immigration violators.

More than half (55%) of the removals involved aliens convicted of felonies or misdemeanors, which is almost 90% more than the number of criminals removed since fiscal year 2008 and is the so far highest percentage in a decade.

This record is the latest of three years of increased immigration enforcement under President Obama. It reflects the government’s “focus on sensible immigration” by prioritizing the removal of criminal aliens, repeat immigration law violators and recent border crossers.

In June of this year, U.S. Immigration and Customs Enforcement (ICE) Director John Morton issued guidelines on the use of prosecutorial discretion by ICE employees and attorneys and called on them to use the agency’s limited resources on aliens who pose a threat to public safety or national security.

While these latest numbers affirm the government’s policy of prioritizing criminal aliens, it must be remembered that anyone who is without lawful immigration status can still be placed under removal proceedings.

Contrary to popular belief, unless subject to expedited removal an alien is generally entitled to court proceedings before being removed. Removal proceedings typically start with the service of a notice to appear (NTA) upon the alien.

The NTA specifies, among other things, the alleged immigration violation, the charge against the alien and the specific provision/s of the law alleged to have been violated, and the time and place of the hearing. An NTA may be served in person or by mail. As non-citizens are required to notify the USCIS of any change of address within 10 days of the change, in many cases the ICE may simply mail the NTA to the alien’s last addresses and it would be considered valid service.

If served with an NTA, the alien is strongly advised to consult an immigration lawyer because being placed under removal proceedings is a serious matter. An immigration lawyer can tell him whether proceedings can be terminated because of a problem with the NTA on its face or in the way that it was served. The lawyer can analyze the facts of the case, explain what options may be available, and if the alien would be eligible for a relief from removal. Reliefs include voluntary departure, asylum, adjustment of status and cancellation of removal.

The alien must attend the scheduled master hearing, which is a preliminary hearing where the charges are read and the alien is asked to admit or contest the allegations and whether he intends to seek relief from removal. An individual hearing is scheduled if the case will be heard on the merits.

The alien may be represented by an attorney at the master and individual hearings. However, unless provided pro bono or by a non-profit organization, any legal representation will be at the alien’s own cost because there is no right to government-appointed counsel in immigration cases.

The alien must keep the immigration court updated of any change of address and must attend his hearings. If he fails to notify the court of an address change, and because he did not receive correspondence he fails to attend a hearing, the proceedings may continue and may result in the alien being ordered removed in absentia.

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