For Immediate Release
Proposed Rule Change Will Unify Families Subject to 3 and 10 Year Bars
January 6, 2012
Washington D.C. - Today, U.S. Citizenship and Immigration Services (USCIS) announced a proposal to streamline the application process for the spouses and children of U.S. citizens currently eligible for legal permanent resident status, minimizing the amount of time that applicants would have to be separated from their families. Under current procedures, thousands of persons who qualify for legal status must leave the U.S. to obtain their permanent resident status, but as soon as they leave, they are immediately barred from re-entering for 3 or 10 years if they have been unlawfully present in the U.S. for more than 180 days. Many are eligible for a family unity waiver, but under current rules (not law), the waiver can only be applied for from overseas. Because that process can often take many months and even years, it is believed that many otherwise eligible applicants do not apply for legal permanent resident status, remaining unauthorized in the U.S. rather than risk lengthy separation from their families.
Published in the Federal Register today, the proposal—or, at this point, a “notice of intent to issue a rule”— recognizes this Catch-22 by revising the procedures for determining the family unity waivers for spouses and children of U.S. citizens. However, the rule change will not cover spouses and children of legal permanent residents. Under this “in-country processing” proposal, which must still go through the formal rule-making process, spouses and children of U.S. citizens who apply for legal permanent residence and need a family unity waiver to re-enter the U.S. will be allowed to apply for the waiver without first leaving. This process does not alter or revise eligibility standards and only affects persons whose sole need for a waiver is based on having been in the U.S. without authorization.
This “in-country processing” proposal would permit USCIS to grant a provisional waiver, eliminating the often prolonged wait that many applicants currently face when they seek a waiver outside the U.S. Although applicants would still be required to depart from the U.S. before receiving final approval on their application, pre-processing of the family unity waiver will encourage applicants to come forward and create a faster and safer means for processing applications.
The emphasis on safety is particularly important, given the large number of applications processed in Ciudad Juarez, Mexico, a city that has been wracked with violence in recent years. Numerous cases of violence against persons waiting for their waivers have been reported, increasing the urgency of implementing the new rule quickly. For other applicants, the streamlined process will minimize the time away from family members, reducing the possibility of economic and other hardships caused by long separations.
Our current immigration laws are riddled with inconsistent and conflicting provisions which have the absurd result of discouraging legal immigration. Some of the most notorious are the bars to returning to the U.S. after a period of unlawful presence, even if a person has a legitimate relationship to a U.S. citizen. Today's announcement does not eliminate the bars, but it recognizes that there is no practical reason for forcing the spouses and children of U.S. citizens to wait outside the country for months or even years while their application for a waiver is pending.
According to Benjamin Johnson, Executive Director of the American Immigration Council, “By proposing new rules for processing waiver applications for spouses and children of U.S. citizens, USCIS has shown a commitment to addressing one of the most notorious implementation problems in our current immigration system. Improving this system, within the framework of the law, is the legitimate role of any administration. We commend USCIS for embarking on this rule change and its other attempts to bring efficiencies and fairness to the immigration system.”
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More DHS Oversight & Per Country Cap Elimination
On Wednesday, Secretary Napolitano will appear before the House Judiciary for an oversight hearing that will likely focus on what are now hackneyed themes of enforcement and prosecutorial discretion. If the recent Pulses have seemed repetitive that’s because this will be the fourth hearing on the Hill about the same topics. As with previous hearings, there will almost certainly be attacks on DHS for being weak on enforcement and for granting a de facto amnesty as well as a vigorous defense by the Secretary of her agency’s record.
More than four months after John Morton issued his prosecutorial discretion memoranda, how and whether ICE will actually implement the directives in the field remains in question. Last week, Senator Dick Durbin (D-IL) pushed the Secretary on this point:
“It's been four months since the Morton memo was issued and two months since you announced the process for implementing it. The review of pending deportation cases, as I understand it, correct me if I'm wrong, has not yet begun. In fact, we do not even know what the criteria will be for the review and you have not issued guidance on who will be put into deportation proceedings in the future.
Secretary Napolitano replied that DHS would be piloting a full review process within two to three weeks. At the House hearing, AILA hopes that the Secretary will provide more detail than a few sentences about this important policy development.
Also this week (likely Thursday) the House Judiciary committee is planning to markup H.R. 3012, the "Fairness for High-Skilled Immigrants Act." As previously reported in the Pulse, Rep. Jason Chaffetz (R-UT) along with Judiciary Chair Lamar Smith (R-TX) are the sponsors of this measure that would eliminate the current 7 percent, per country caps on all employment-based (EB) green card categories over a three-year transition period. If enacted, H.R. 3012 would create a strictly "first in, first out" system (based on priority dates) within the existing employment-based green card system. The measure would also immediately increase the family-based per country cap from 7 percent to 15 percent. Finally, the bill would eliminate the offset created by the Chinese Student Protection Act of 1992.
The 3-year transition period for the employment-based system bears some explanation: During year one, the country that received the most employment-based visas in the previous fiscal year can receive up to 70 percent of all visas. The country that received the second most visas can receive up to 15 percent. And the remaining 15 percent would be reserved for all other countries but no country may receive more than one fourth of that total 15 percent set-aside.
The second and third years of the transition period are identical to the first year, but only 10 percent is reserved for the remaining countries. In other words, in those years the country receiving the second highest number of visas could receive up to 20 percent of the visas, and the country receiving the most visas can receive up to 70 percent. After the transition period the per-country caps on employment-based visas will be completely eliminated. If all this sounds complicated, be grateful you’re not the one who will have to implement it.
Greg Chen
Director of Advocacy
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The Department of Homeland Security (DHS) today published the first in a series of regulations intended to promote the migration of U.S. Citizenship and Immigration Services (USCIS) benefit filings from a paper-based environment to an electronic one. The regulation is an important step toward modernizing how USCIS handles the more than 6 million benefit applications submitted annually.
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Obama administration amends deportation policy
By Franco Ordoñez
The Obama administration announced Thursday it plans to focus its deportation efforts on more dangerous illegal immigrants, a move that gives undocumented Charlotte students like Elver Barrios hope.
As part of the policy change, the Department of Homeland Security intends to review the cases of approximately 300,000 illegal immigrants facing deportation orders.
Those without criminal records who are found to be a low priority because they are students, were brought here as children, or have long family ties to the country could be released and granted a work permit.
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WASHINGTON, USA (CMC) — Human Rights Watch says it has discovered evidence suggesting that the United States federal immigration officials continue to impede Caribbean and other immigrants from accessing lawyers and also extending their time in custody.
In a report released here, Human Rights Watch said this is done despite assurances from immigration authorities that they would curb the practice of transferring detained immigrants to distant detention centres around the country.
The report, which analysed 12 years of federal data, acknowledged that after years in which detainee transfers sharply increased, the numbers started dropping in 2009 when the Obama administration announced a comprehensive overhaul of the detention system.
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The United States Embassy in Kingston puts little faith in the job letters which Jamaicans present when they are applying for a visitor's visa.
In fact, the embassy believes there are persons in Jamaica who make their living by producing fraudulent job letters, and persons desperate to get to 'foreign' are willing to pay as much as US$400 for these documents.
"Misrepresentation is very common and job letters are often false or misleading," the Kingston embassy told Washington in a diplomatic cable dated December 2008.