Ignorance of Immigration Law Abounds, Particularly with GOP Lawmakers

 When I read this article from ABC News on the plight of migrant children who cross the southern border from Central America, I was struck by the quote from Senator Jeff Sessions of Alabama. "It cannot be that every young person from Central America is entitled to asylum or entry into this country," he is quoted as saying. 

The quote, I believe, betrays the true thought process behind many Republican lawmakers and their tea party supporters on immigration issues. Sure, the stylish thing for conservatives to say is that they support immigration, just not illegal immigration. Except that hidden in Sessions' statement is a criticism of the legal programs and processes that exist in U.S. immigration law. 

Let's start with asylum. This is a program to give protection to people who fear persecution, such as the threat of serious violence, in their home country. On one hand, it is difficult to obtain asylum. But on the other, if a foreign born person proves that he or she qualifies for asylum, U.S. law mandates that the Federal Government grant protection and a pathway that could lead to permanent residency and eventually citizenship. 

Yet asylum, despite it being a legal program, is one of the key targets of conservatives' criticism. Indeed, some conservatives complain about the number of green cards the Obama Administration has handed out. Seemingly lost in the criticism is that the green card process is the process to become a legal permanent resident. 

What also seems to escape conservative critics is that there is a legal process for determining eligibility for legal immigration programs. This is a country of laws. Our Constitution requires Due Process. The Government cannot simply pick up a person near the border because they look Hispanic and automatically ship them back to Central America. Let's not forget how many citizens of this country are of Hispanic origin. Fortunately, this isn't like the film caricatures of Nazi German where the Gestapo get to demand to see the "papers" of everyone. Citizens are not required to carry proof of citizenship. 

But the immigration courts of this country are clogged. There are not enough judges and government attorneys to handle the cases already in court. No one seems to be willing to spend the money to create more courts, hire more judges and hire more attorneys. The result is that cases tend to remain pending for years. 

Even then, there are more programs available than simply asylum. I hesitate to list them here, for fear that if GOP lawmakers really did understand the breadth of immigration law would be motivated to repeal those programs. 

Probably most alarming in statements like that of Sessions is the callousness that it betrays. Central American countries such as El Salvador, Honduras, Guatemala and Nicaragua are plagued by gang violence. Yet, many in the United States like to turn a blind eye to that violence and deny the role of this country in creating a situation that the Central Americans governments are unable to manage on their own. 

We as a society are judged by how we protect the vulnerable. An immigration system without compassion erodes our humanity and condemns the helpless to situations they had no role in creating. 

By: William J. Kovatch, Jr.
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Special Immigrant Juvenile Status Findings Made by Virginia JDR Court

A judge in the Norfolk Juvenile and Domestic Relations General District Court granted an order making the findings necessary for a teenage girl to apply for Special Immigrant Juvenile Status (SIJS).  The order will now allow the girls to submit an application to U.S. Citizenship and Immigration Service to become a permanent resident.

Last year, thousand of unaccompanied minors fled Central America to brave the treacherous journey to cross the border into the United States.  This girl, whose father abandoned her before he was born and who was living with her grandmother, was among those unaccompanied children.  Her grandmother had become too ill to take care of her, and she wanted to be reunited with her mother.

Once across the border, she reported herself to the immigration authorities and was taken into detention. Eventually, the Office of Refugee Resettlement became involved and reunited the girl with her mother.

The girl was placed in removal proceedings in Immigration Court. Although she lived in Norfolk, there is only one Immigration Court with jurisdiction over aliens living in Virginia.  That is the Immigration Court located in Arlington.  This meant that the girl and her mother had to wake up early, and leave Norfolk by 4:00am in order to make a 9:00am Immigration Court hearing.

Initially, the case seemed hopeless.  However, more and more immigration practitioners have been using the SIJS provisions of the Immigration and Nationality Act (INA) to help children in similar situations.

The SIJS provisions permit a state court with jurisdiction over juveniles and custody matters to make findings that: (1) the child has legally been committed to, or placed under the custody of, an agency or deparment of a state, or an individual or entity appointed by a state or the court; (2) reunification with one or both of the parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law; and (3) it is not in the child's best interests to be returned to the child's or parents' home country or country of last residence.

Once the state court makes these findings, the child can then file an I-360 visa petition along with an I-485 application to adjust status to allow USCIS to make the child a permanent resident.

Because the language of the statute requires a finding that reunification with one or both of the child's parents is not viable, this has allowed a parent of a child who entered the United States unaccompanied to apply for custody through the state family courts and then apply for permanent residency for their child, so long as there is evidence that the other parent has been abusive, neglectful or has abandoned the child.  As was the case with the family who appeared before the court in Norfolk, the mother applied for custody and the court made findings that the father had abandoned the child.

This law has been used increasingly by single parents who are present in the United States without legal status to at least help give their foreign born children legal status.

The drawback to this law is that no parent of a child granted SIJS may then use that relationship with the child to apply for their own immigration benefits.  Thus, when a child granted SIJS status eventually becomes a citizen, that child cannot apply for a visa for his or her parents.

By:  William J. Kovatch, Jr.

For an appointment, call (703) 837-8832
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Can the Republicans Derail Administrative Action on Immigration?

The rumors are that President Obama will announce some kind of administrative action to address the large numbers of undocumented aliens already living in the United States.  What will that action be?  While at this point we can only speculate, the best educated guess is that it will be some type of expanded deferred action program, like the one the President adopted for undocumented aliens who were brought to the United States as children.  How broadly the program will cover remains to be seen.

Republicans, emboldened by their victories in the November mid-term elections, are warning that any executive action on the issue of immigration will meet with fierce legislative resistance.  The question, however, is just what can congressional Republicans do to derail any administrative action?

The President's safest bet would be to expand his Deferred Action for Childhood Arrivals, or DACA, program.  Deferred action is not really a legal immigration status.  It is merely a promise by the Government that it will not deport someone.  Deferred action is already built into the law.  The President can grant deferred action on a case-by-case basis.  Once deferred action has been granted, the law permits the alien to apply for work authorization.  Thus, while it is not a real legal status, and cannot lead to permanent residency or citizenship, it can allow an undocumented alien the ability to work and earn money legally.

There has been a lot of talk of impeachment.  That is, if the President were to act alone and announce such a broad-based deferred action program, some Republicans believe that there would be grounds to impeach the President.  The argument is that the President would be acting contrary to law by failing to enforce it.

Impeachment, however, would be a tough sell for Republican law makers.  First, as stated above, the law gives the President the discretion on a case-by-case basis to grant deferred action.  It has traditionally been a vehicle used for humanitarian purposes.  Nothing in the law says that the President cannot define a set of criteria on which he would grant deferred action.  Thus, on a purely legal basis, impeachment is on shaky grounds to begin with.

At any rate, a Republican-led House of Representatives has already impeached the last Democratic president, Bill Clinton.  While the grounds for Clinton's impeachment may have had sounder legal grounding (perjury by the chief executive officer in a sworn deposition of a pending lawsuit), the fact is that Republicans would have an image problem if they were to impeach two Democratic presidents in a row.  That is, it would leave the Republicans open to the charge of being willing to undermine the democratic process, instead of working together towards a solution to the nation's immigration problem.  (To those who would argue that the President is the one ignoring the democratic process by acting alone, it should be noted that the Republican-led House of Representatives has had numerous chances over the course of the past two years to propose and pass a serious immigration reform package.  They have failed to do so.)

The next strategy that appears to be gaining popularity is simply to de-fund the President's program.  This solution, some argue, would not require a shut-down of the Government, because the Republicans can just pass a continuing resolution that contains all of the funds necessary to have the Government operate, minus the funds needed to operate the President's program.

This strategy has two fatal flaws.  First, it fails to recognize how U.S. Citizenship and Immigration Services ("USCIS"), the agency that would be charged with administering any program the President adopts, is funded.  USCIS is not funded as a line item in the budget.  To the contrary, USCIS is funded through user files.  That is, every petition or application for an immigration benefit involves some sort of filing fee.  As it is, those filing fees are pretty high.  To become a permanent resident, for example, involves filings fees of almost $1,500.

All DACA applicants had to pay a filing fee of $465.  That included the cost of processing the DACA application itself, the work authorization application and the background check.  Thus, so long as the Administration sets the filing fee at an appropriate level, what Congress does with the budget will have little impact on the President's program.

The second problem with de-funding the President's program is that it assumes that the President will sit back and let it happen.  In our republic, all legislation, including the budget, has to be passed by both houses of Congress and signed by the President.  Bills concerning spending must originate in the House of Representatives.  But, if the House passes a continuing resolution that funds some, but not all, of the Government, the President could veto it.  The House tried this a year ago in an effort to de-fund Obamacare.  In the end, it didn't work.  Worse yet, the Republicans were politically damaged and had to spend the next few months repairing the damage before the November elections.  (It is important to note  that redistricting played a huge role in the Republican electoral victory.  That is, state legislatures redrew congressional districts in such a way as to create a large number of districts with very conservative majorities.  The result was that many very conservative candidates did well in the primaries and rode the redistricting wave to victory in the general election.  In a presidential election, the Republicans will have to face a national electorate, which will not likely be as conservative as the smaller congressional races.)

In the end, there may be very little the Republicans can do to prevent the President from implementing a carefully constructed program to address the presence of undocumented aliens.  The risks to the Republicans are great, considering the national electorate they will face in the 2016 elections.  A better course may be for the Republicans to offer a constructive counter-solution, one that involves more than simply building bigger walls and a push for indiscriminate deportations.

By:  William J. Kovatch, Jr.
(703) 837-8832
wkovatch@kovatchlegalservices.com

H-1B Cap for Fiscal year 2015 Met

On April 7, 2014, U.S. Citizenship and Immigration Services received enough H-1B petitions to account for the annual quota for fiscal year 2015.  In fact, USCIS announced that it had received enough petitions to account for the 20,000 H-1B visas set aside for alien holding advanced degrees from U.S. schools.

H-1B visas are also known as specialty worker visas.  They are visas that allow a person to come to the United States temporarily to work for a U.S. employer.  To qualify, the alien worker must be coming to perform a job that requires the equivalent of a bachelor's degree or higher.

H-1B visas are initially granted for three years.  The visas begin on October 1, the start of the fiscal year.  Application can be submitted up to 6 months before the start of the fiscal year, or April 1.  There are 65,000 H-1B visas available every year.  Another 20,000 H-1B visas are available for alien workers who hold an advanced degree from a U.S. institution.

In some years, the annual quota is not met until later in the year.  However, when U.S. employers need skilled foreign workers, the H-1B quota can be met early in the H-1B filing season.  If more than enough H-1B petitions are received by USCIS before April 7, a lottery is held to see which applicants receive the available visas.

By:  William J. Kovatch, Jr.
(703) 837-8832
wkovatch@kovatchlegalservices.com

Details of the Proposed Immigration Reform

The Gang of Eight introduced its proposal for immigration reform in the Senate today.  The bill is 844 pages long, and will take time to read, digest and analyze.  However, one organization, the Migration Policy Institute, has published a detailed comparison of the proposals introduced in this bill, and the proposals made in 2006 and 2007.

The heart of the proposal appears to be to require the Department of Homeland Security to create strategies to provide greater border security, and to implement those strategies, in exchange for permitting those who are present in the United States without legal status to be given provisional status, which could eventually lead to citizenship.

First, Homeland Security must submit strategies for protecting the southern border within six months of the passage of the bill.  Once the strategies have been submitted to Congress, then a new status, Registered Provisional Immigrant ("RPI"), is created.  The Secretary of Homeland Security must then certify to Congress and the President that the plans have been submitted, implemented and substantially operational or complete.  A mandatory employer verification system (E-Verify) and an electronic exit system at air and sea ports must also be implemented.  Once all of these conditions have been met, then those with RPI status may apply for permanent residency.

RPI status must be renewed every six months.  Eligible aliens must have been continually present in the United States from December 31, 2011.  Those with RPI status must learn English, and pay all taxess before they can adjust to permanent residency.  However, certain deportees who were present before December 31, 2011 may apply for re-entry under RPI status, if they were not deported for criminal reasons and other criteria are met.

To received RPI status, there will be a $500 fee at filing, and a $500 fee upon renewal.  To adjust to permanent residency, there will be a $1,000 fine, plus a processing fee ($400 fine for agricultural workers). 

It should be stressed that this is just a proposal.  It is subject to mark-up and amendment in the Senate.  It must also pass the House of Representatives and be signed by the President before it becomes law.  Thus, changes should be expected.  More details on the proposal shall follow.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Want to Help a Brother or Sister Come to the U.S.? You May Need to Act Soon!

The so-called "Gang of Eight" unveiled its immigration reform proposal in the Senate today.  The proposal contained a lot of changes; too many to detail in a blog entry such as this.  It does appear that that in order to account for the undocumented aliens who may be permitted to stay in the United States, other visa categories may be restricted or eliminated altogether.  The full text of the 844 page immigration reform bill, titled the "Border Security, Economic Opportunity, and Immigration Modernization Act," can be found at this link.

One of the more surprising proposals is the elimination of permanent residency visas for brothers and sisters of U.S. citizens.  Currently, a U.S. citizen can petition for a visa for a foreign-born brother or sister.  A very limited number of such visas are available on an annual basis, meaning that there is currently a backlog of approved visa petitions waiting for a visa to become available.  Dubbed category F4, for most countries visas for brothers or sisters of U.S. citizens are just becoming available for petitions which were filed on or before May 1, 2001.  For brothers and sisters from the Philippines, visas are just becoming available where the visa petition was filed on or before October 1, 1989.

The bill will now be introduced in the Senate, and will go through debate and "mark-up."  Mark-up is where amendments to the bill can be considered.  Even if the bill passes the Senate, it must pass the House of Representatives as well.  This means that it is likely that the bill which was introduced today will undergo numerous changes should it become law.

Nonetheless, the proposal to eliminate the brothers and sisters of U.S citizens category should cause some degree of urgency for those who wish to assist their sibling in coming to the United States.  If a citizen wants to help a sibling, that citizen should not delay in filing the visa petition.  Waiting to file could mean that the citizen and the sibling have lost their opportunity to obtain a permanent residency visa.

If you want to consult with an immigration attorney about filing a sibling petition, or for any other immigration matter, call me at (703) 837-8832 for an appointment.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com