Back of the line! - but is it legal?

I’m going to explain how the immigration service has been unlawfully revoking the approval of petitions for nearly a quarter of a century.  The impact of this unauthorized action on hopeful immigrants has been terrible, resulting in many thousands losing their place in the queue after having waited many years, and having to move to the back of a line in some cases decades long.  To understand how this has happened, you’ll need to understand some basics of the immigration process.

We have a petition process in the U.S., which allows U.S. citizens and permanent residents to file an immigrant petition for a close relative, and allows a U.S. employer to file a petition for an employee after certain prerequisites are met.  The petition is a form that is filed with USCIS, the immigration agency, and when the petition is approved it is assigned a priority date which is the date the person got in line for one of the limited immigrant visa numbers.  In most cases, the priority date is the date the petition was filed, but in cases requiring Department of Labor certification before filing the petition, USCIS uses the DOL filing as the priority date.  Congress has established that immigrant visas, and thus green cards, should be given out in order of priority date, so that people whose petitions were filed before others in the same category should be given green cards first.

After USCIS approves the petition, the agency sends it to the State Department when the person is outside the United States.  It can be many years and even decades between the approval of an immigrant petition and a visa becoming available.  During those years of waiting, an immigrant can check the visa bulletin published by the U.S. Department of State on a monthly basis, or wait to be contacted by the State Department.  Since there are no accurate estimates of how long it may take to actually get a green card in a given category, most people wait to hear back from the State Department. 

After waiting years or decades, the State Department should ultimately send out a notice by mail and email to let the immigrant know their priority date is coming up for a visa number, and that they can apply.  This is called registration for a visa.  But the system of notification is far from perfect, and a person’s change in address or email address can result in the person not being notified.  Lots of people fail to receive notification.

Because there are some people who, after waiting so many years, decide not to immigrate after all, Congress authorized the State Department to terminate a registration where the immigrant has not contacted the State Department after a year.  There is no question that the State Department has been able to terminate registration for the orderly administration of visa issuance since the provision was enacted in 1976, when Congress authorized termination of registration.  In 1976, Congress also authorized automatic revocation of the petition itself.  Regulations were issued after that allowing not only for the State Department to terminate the person’s registration for a visa, but to also allow the immigration service to revoke the petition, effectively destroying it and the person’s place in line.  When that happens, everything is absolutely gone, and the person has to start over.  That’s a harsh result.  In 1991, however, Congress took away the immigration service’s ability to revoke the petition and take away the person’s place in line.  The regulations, however, were not updated, and in the past quarter century, the immigration agency has been revoking petitions based on the law prior to 1991.  This is unlawful and unauthorized.

There were good reasons for Congress to disallow the complete destruction of a petition and place in line just because the State Department terminated the person’s registration for a visa.  Back in 1975, when Congress was considering what to do with termination of registration and revocation of petitions, the State Department Assistant Secretary for Congressional Relations, Robert McCloskey, wrote a letter dated September 22, 1975 to the House Judiciary Committee Chairman.  In that letter, the State Department voiced its opposition to the termination and revocation law being considered by Congress.  Here is what the letter said:

“Section 5 (3) would amend section 203(e) by inserting therein provision for cancellation of an alien’s registration on an immigrant visa waiting list under certain circumstances.  Under this provision, an alien registered on an immigrant visa waiting list would face cancellation of his registration if he failed to pursue his application within one year after notification that his turn had been reached making it possible for him to do so.  The alien would be accorded one additional year during which he could seek restoration of his registration by establishing that his failure to pursue his application had been due to reasons beyond his control.  If the alien failed to come forward during the additional year or if he did so but was unable to establish that his failure to pursue had been due to circumstances beyond his control, the cancellation of his registration would become final and any petition approved to accord him an immigrant status would be revoked. 

The issue of registrants on immigrant visa waiting lists (often referred to as ‘insurance registrants’) who do not pursue their applications when given an opportunity to do so is a long-standing and difficult one.  The presence of such applicants on waiting lists adds to the recordkeeping and other administrative burdens on consular offices abroad and can create false impressions of the magnitude of active demand for immigration.  The Department is, therefore, sympathetic with the objective of this proposed amendment.  On the other hand, the Department foresees that there may well be difficulties in the implementation of this proposal and that its implementation could itself add to the administrative burdens on consular officers.

For this reason, the Department several years ago established an administrative procedure which achieves the purposes sought by this proposal but without incurring the potential difficulties which this proposal might entail.  Consular officers have been instructed to separate all pending immigrant visa applications into two categories – active and inactive.  Among those cases considered to be ‘inactive’ are those in which the alien has failed to respond to an invitation to pursue his case within one year after the invitation is sent to him.  Records pertaining to ‘inactive’ cases are stored separately from those pertaining to ‘active’ cases and are generally not maintained in the working areas of consular offices.  Thus, the administrative burdens associated with maintenance of such records are avoided and there remain only isolated cases in which available storage space is constricted.  Furthermore, all summary reports of total registered demand for immigration are maintained by the two categories – active and inactive – and it is thus possible to identify without difficulty total active registered demand for immigration and, thus, to have a meaningful idea of its magnitude. 

Since this administrative procedure involves neither physical destruction of records and associated documents nor the loss by an alien of any entitlement under the law, it is our belief that it is preferable to the procedure proposed in section 5 (3) of the bill.  We are, therefore, opposed to the enactment of this section.”

So, the State Department was itself opposed to the termination of registration provisions, particularly because it would result in “loss by an alien of any entitlement under the law,” but Congress enacted the restriction in 1976 anyway, although later in 1991, Congress acted to restore a person’s ability to have their visa petition remain intact after State Department terminated registration for the visa. 

Digging into the statute, INA Section 203(g) is the current one which went into effect on October 1, 1991, and 203(e) was the statute in existence prior to that date.  The old 203(e) read as follows:

“(e) ...The Secretary of State shall terminate the registration of any alien who fails to apply for an immigrant visa within one year following notification to him of the availability of such visa, but the secretary shall reinstate the registration of any such alien who establishes within two years following notification of the availability of such visa that such failure to apply was due to circumstances beyond his control.  Upon such termination the approval of any petition approved pursuant to section 204(b) shall be automatically revoked.”

The new and current 203(g) section has almost identical language except for the last sentence, authorizing automatic revocation.  In 1991, the statute was amended to specifically remove that.  So that means as of 1991, USCIS had no authority to automatically revoke petitions in cases where the immigrant’s visa registration was terminated.  Yet, the automatic revocation regulations were drafted prior to the change, and were never updated, and thus USCIS has been unlawfully revoking the approval of petitions for the past 24 years based on outdated and unlawful regulations.

There is a section which authorizes USCIS to revoke petitions.  INA Section 205, states: “The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 204.  Such revocation shall be effective as of the date of approval of any such petition.”

That section does not, however, authorize automatic revocation.  Courts have held that the immigration service cannot automatically revoke petitions, and that “good and sufficient cause” requires something that would have formed the basis for a denial in the first place.  The Board of Immigration Appeals, in a case called Matter of Estime, held that petitions can only be revoked based on facts which might have resulted in a denial in the first place.  For example, if USCIS approves a case and then discovers later a fraud was committed, then that is good and sufficient cause.  Also, if someone does not respond to Department of State fast enough, then the statute authorizes the State Department to terminate their registration with the State Department.  But that by no means constitutes a basis for USCIS to then revoke the approval of the petition.  There are drastic consequences that result from termination followed by automatic revocation – loss of priority date is the big one. 

There is also the case of Singh v. Clinton, in the 9th Circuit, which holds that in order to be effective, the “alien” must be notified of the availability of the visa, which means the beneficiary, and you may well know that NVC has been bad about sending any notice to beneficiaries at all, instead sending the notice to the petitioner.  So most terminations are not valid for that reason.  But termination of registration can be remedied by paying the visa fee again, and getting the case put back into active status.  When USCIS revokes a petition, however, it has far ranging consequences.  As I said before, it results in the destruction of the petition, and also in the loss of one’s place in line. 

USCIS must immediately stop revoking petitions following a State Department termination of visa registration.  Then, the agency needs to update its regulations to be in compliance with the law passed in 1991.  If the agency fails to do these things, then the courts should step in and require them to halt the unlawful practice.  Longstanding canons of statutory interpretation hold that the regulations cannot do more than the statute allows.  Here the regulation does only what the old law allowed, and goes beyond the current law.  The USCIS policy here is vulnerable to a legal challenge, and the agency would be wise to update the policy before a judge tells them to.

Photo by Digital Vision./Photodisc / Getty Images
Photo by Digital Vision./Photodisc / Getty Images

326 Thousand Wasted Visas

While the visa bulletin fakeout has been a major focus of everyone's attention, let's not forget that the same mismanagement resulted in the waste of hundreds of thousands of immigrant visas (green cards) that could have been used over past years.  Those visas are lost forever, and without special legislation will stay that way. The wasted immigrant visas are the reason the backlogs are so bad in the first place. Every single person impacted by the October 2015 Visa Bulletin Fakeout would have already received a green card by now if the 326,000 visas were not wasted in past years.  While desperate immigrants scramble for a few thousand visas each year, remember the wasted visas, and how the government has failed time and again to protect against it.

Listen to the podcast to learn the full details (either on the player above, or on iTunes by subscribing - see "get it on iTunes button to the left).  For listeners, here are some resources:

2011 NFAP Policy Brief: Waiting and Waiting 

"A surprising contributing factor to the employment-based green card backlog is unused visas from prior years. Between FY 1992 and FY 2006, more than 506,000 employment-based immigrant visas went unused, as illustrated in the Appendix.10 Administrative issues within the federal government, particularly prior to FY 2005, prevented the U.S. immigration system from distributing all of the employment-based green cards available under the law. The State Department reports that 180,039 of the 506,410 unused employment visas have been recaptured by special legislation.11 That leaves more than 300,000 never utilized." see page 8.

2011 Congressional Research Service Report on Per Country Limits

Extensive look into the per country limits and history

Analysis: New High Skilled Immigration Bills

"In order to reduce visa backlogs, the bill calls for the recapture of unused EB visas for fiscal years 1992 through 2013, to be used beginning in FY 2016. Going forward, it calls on the Department of Homeland Security (DHS) and Department of State to ensure that every EB visa authorized to be used within a fiscal year is issued to a qualified applicant. Any unused EB visas would roll over to the following fiscal year. According to U.S. Citizenship and Immigration Services (USCIS), over 500,000 EB visas were unused between FY 1992 and FY 2009, 180,000 of which were recaptured by previous legislation."

2010 CIS Ombusdman Annual Report

"Coordination between the agencies is improving, but remains a challenge." See Chart of Wasted Visas on Page 53 of the PDF report.

Wall Street Journal Graphic on Visa Wait Times over two decades

Waiting for a Green Card Chart

For background on the visa bulletin fakeout, see the last post and podcast.

Visa Bulletin Fakeout - Sign the Petition

Words cannot express how frustrated I am with the Department of Homeland Security and the Department of State.  Just weeks after announcing a "visa modernization" improvement with two visa priority date charts, which I blogged about as a positive improvement, the DOS has yanked back the priority dates for those eligible to apply for green cards by two (2) years!  What that means is that families, not just hundreds but thousands of families, who had hopes to apply for a green card in October, and who have worked diligently over the past weeks to collect documents, get medical exams, pay immigration lawyers like me, are suddenly with only a few days notice having their hopes and dreams dashed by what appears to be a government mixup.  But far and away the most frustrating thing is that this very thing happened before.  In 2007, the State Department moved all dates to "current" status, then before the month in which they would accept applications came, they yanked the dates back.  At that time, a class action lawsuit was prepared, and a "flowers campaign" started by Indian immigrants who sent flowers to the agency asking for help and sympathy.  This was referred to in the Times of India as a Gandhigiri, a peaceful act of protest.  The agency responded by allowing the filings to occur within a 30 day period.  So the protest and public outrage was a success in 2007.

I can understand that people make mistakes.  I have made some myself.  But the agency must own up to this mistake, and allow those who have relied upon their earlier published visa bulletin to file within a short 30 day window.  For this, someone has started a White House Petition.  I was among the first to sign it, and I hope others will do so as well:

Executive Action on Immigration

On November 20, 2014, President Obama authorized a number of significant immigration benefits under the Executive authority.  As the President explained in his speech, he did this because Congress has failed to act on immigration reform, and he had promised to do what he could under the current law to reform America’s immigration system in the meantime.  The reforms have not yet been implemented, and USCIS (the immigration benefits agency) is not yet accepting applications for any of the benefits the President announced. 

Our firm is planning a number of informational seminars on the executive action on immigration reform.  Please consider signing up for one of the sessions to learn about the following initiatives by the President:

·         Expansion of the Deferred Action for Childhood Arrivals (DACA) program in the next 90 days:

o   By removing the age limit to include people of any age provided they otherwise qualify for DACA;

o   By moving the date that the person had to be in the country from June 15, 2007 up to January 1, 2010;

o   By increasing the period of deferred action and work authorization from 2 years up to 3 years.

·         Creation of a Deferred Action for Parental Accountability (DAPA) program in the next 180 days which will allow parents of U.S. citizens and lawful permanent residents who have been in the country since January 1, 2010 and who are in unlawful status to obtain deferred action and work authorization.

·         Expansion of the Provisional Waiver program to include spouses and sons and daughters of lawful permanent residents and sons and daughters of U.S. citizens, which will allow them to use the I-601A process to waive the 3 and 10 year family separation penalty bars (also called unlawful presence bars) while in the U.S. instead of being separated from family members while the waiver is being processed.  There is no announced timeline for this process, but a regulation must be issued which is likely to take several months.

·         Modernize, improve and clarify immigrant and nonimmigrant programs in several areas including:

o   Developing a better method to allocate immigrant visas to ensure all visas authorized are issued;

o   Modify the Visa Bulletin system to more simply and reliably make visa availability determinations;

o   Provide relief to employment based immigrants who are delayed by priority date backlogs by creating some program to allow filing of an adjustment of status application, which can provide work authorization and increased job portability;

o   Clarify that national interest waivers may be granted to foreign investors, researchers and founders of start up enterprises to benefit the U.S. economy;

o   Authorize parole to certain investors, researchers and founders of start-up enterprises who may not yet qualify for a national interest waiver but who have been awarded substantial U.S. investor financing or hold promise of innovation and job creation through development of new technologies or cutting edge research;

o   Finalize a rule to provide work authorization to H-4 spouses of H-1B workers who are on the path to lawful permanent resident status.

o   Expand regulations on the use of OPT for foreign students;

o   Provide clear guidance on specialized knowledge in the L-1B program to bring greater clarity and integrity to the program.

·         Promote citizenship education, allow payment of the naturalization fee by credit card, and provide expanded fee waivers.

You can sign up for a seminar by visiting our website: http://www.entrylaw.com/seminars/

You can receive updates on the executive action on the USCIS website: http://www.uscis.gov/immigrationaction

Capitol Building.JPG

Congress to Business: Stop Hiring Global Talent

About 172,500 H-1B work visa petitions were filed for 85,000 annual slots in the first week of April, which means that the business community has a 50% chance of securing their share of global talent, and that is only if they happened to file in the first week of April.  New numbers won't be available until 2015.  See the USCIS Announcement.  I am in Washington D.C. this evening, and as I look out to the brightly lit Capitol building (a picture I took just now is below), I shake my head.  I know Congress will not act in time to avoid tragedy for businesses and those global professionals who seek to contribute to our economy.

Congress set the limit on the number of H-1B visas in 1990 and has only added 20,000 to that number since then, bringing it to 85,000.  It is proven that for every H-1B worker hired in the Science, Technology, Engineering and Math fields that more than two U.S. jobs are created as a result.  It is also a fact that our U.S. universities are not producing enough STEM graduates.  

As a policy matter, Congress should not be telling businesses, just when the economy is recovering, that they must stop hiring global talent.  The world is not flat, and American business cannot compete internationally when artificial caps are imposed limiting the H-1B visa.  As this problem persists from year to year, businesses will increasingly send jobs overseas where the talent and business climate for global talent is abundant.  Businesses will continue to fail to achieve their full potential with the edge that global talent brings.  Contrary to common misconceptions, H-1B workers do not take jobs from Americans.  Workers in H-1B status must be paid the same or higher than U.S. workers, and the high costs associated with hiring an H-1B worker mean that businesses seek to utilize global talent only when domestic talent is not available for niche positions.  Congress must act to eliminate the H-1B cap, because there are already sufficient labor protections built into the H-1B system.  In order to do this, Congress must enact comprehensive reform, and embrace a pathway to citizenship for the undocumented population.  The family separation penalty must be eliminated, and families reunited.

Congress has no business telling American companies they cannot have the global talent they need to grow their business.  Congress should be told to stop, listen, and enact comprehensive immigration reform.  

Citizenship for Spouses of Americans Abroad

A little known section of the immigration law allows spouses of Americans working abroad for American companies to become citizens without waiting three years.  Under INA Section 319(b), as long as a person is married to a U.S. citizen who is employed abroad by an American company at least 51% owned by American interests (or U.S. government employee, religious organization, or international organization in some instances), and the American citizen spouse is regularly stationed abroad for a certain length of time, the foreign spouse may be able to first obtain Lawful Permanent Resident status (LPR or green card), then immediately apply for naturalization under 319(b) under certain conditions.  This avoids the situation of the LPR having to reside in the United States for three years as a permanent resident before applying for naturalization, which would naturally result in the separation of the U.S. citizen working abroad, and the spouse who is an LPR.  The non-citizen spouse would usually be required to spend most of the time in the U.S. during the three years, but not under this exception.  Section 319(b) of the INA can be used in these circumstances to enable a foreign citizen spouse the ability to live together abroad with the U.S. citizen as an American citizen, and enjoy the freedom and flexibility that U.S. citizenship offers.  While not all will qualify, 319(b) should be considered together with counsel by those who reside abroad with their U.S. citizen spouses who work for American companies.

View the State Department Guidance on 319(b) naturalization

View the State Department Guidance on 319(b) naturalization

Family Separation Penalty Must Go

Many are unaware that in 1996, Congress passed an immigration bill that would separate children from parents and husbands and wives from each other.  The Family Separation Penalty in the immigration law states that families must be separated three years if the family member remains without legal status for 6 months, or be separated for ten years if the time out of status is one year or more.  As a result, children are now being raised by one parent or by friends and relatives, and the family unit is separated.  U.S. citizen and permanent resident spouses are kept apart from their husband or wife.  Children suffer without the love, affection and assistance of their parent.  In the case of a relative who triggers the ten year Separation Penalty by leaving the United States, and then returns without authorization, the Family Separation Penalty increases to a lifetime bar. 

The point of the Family Separation Penalty seems to have been to curb illegal immigration, but the result is that U.S. citizen children and U.S. citizen husbands and wives are irrevocably harmed.  Even the limited waivers for extreme hardship fail to keep families together.  The Family Separation Penalty was passed at a time when another section of the law was in effect - the 245(i) adjustment statute - which allowed those who were in the United States without legal status, even for more than one year, to obtain legal status through a relative's petition with the payment of a $1,000 fine.  As a result, the Family Separation Penalty did not have a great impact on a large number of people at the time.  Unfortunately, however, the provisions of the 245(i) law expired in 2001, and families could no longer pay the monetary fine.  Instead, they would now pay with their suffering.  And those who suffer are not only the relative whose unlawful presence invoked the penalty, but those legally resident and American citizen children and spouses who are left behind when the loved one departs to fulfill the Family Separation Penalty. 

We are a nation of laws, but we are also a nation with humanity.  The Family Separation Penalty, found at INA Section 212(a)(9), is a draconian law and should be replaced with a civil money penalty like the 245(i) law, but without the process for adjustment of status in the United States.  A relative who has remained in the United States unlawfully should be required to pay a penalty and should apply for an immigrant visa outside the United States via consular processing in order to enter legally.  But the U.S. citizen and permanent resident relatives of the immigrant should not be made to pay with their own suffering.  The time to change the law and abolish the Family Separation Penalty is now.  Let's urge our lawmakers to end the 212(a)(9) Family Separation Penalty, and put in its place a monetary fine for consular processing.  Let's make 2014 the year of family reunification, not separation.

THE UNLAWFUL PRESENCE BARS SEPARATE FAMILIES  

THE UNLAWFUL PRESENCE BARS SEPARATE FAMILIES
 

Obscure Rule Lets Relatives Immigrate Quicker

A little known policy has allowed U.S. citizens to petition for their immediate relatives (spouse, parent, minor child) more quickly than with normal processing.  On May 14, 2012, USCIS issued a policy memorandum which allows the Embassies and Consulates, which are part of the U.S. Department of State (DOS), to accept an I-130 immigrant petition in certain circumstances and adjudicate it there instead of requiring the petitioner to first file the petition in the United States.  This is critical because USCIS is taking more than six months to adjudicate I-130 petitions, whereas an Embassy or Consulate might just take a few weeks!  Additionally, because the Embassy or Consulate already has the file, it can issue an immigrant visa (IV) relatively quickly after the I-130 is approved, in cases where a visa number is immediately available.  This would mainly impact spouses, parents and minor children of U.S. citizens, who are "immediate relatives" and always have a visa number immediately available. 

The Policy Memorandum sets out certain circumstances in which a petitioner can request this process, including but not limited to military emergencies, medical emergencies, threats to personal safety, cases which are close to aging out despite CSPA, where the petitioner has recently naturalized, adoption of a child, or short notice of position relocation, such as when a U.S. citizen living and working abroad receives a job relocation to the United States with very little notice.  Our experience has been that, with the proper USCIS authorization for this type of process, it takes just a couple of months to immigrate.

United States Consulates Can Process I-130 Petitions

United States Consulates Can Process I-130 Petitions