U.S. Immigration Attorneys
5005 Rockside Road Ste. 600 Cleveland Ohio 44131
info@sarmientoimmigration.com
1.800.496.8043
Our Associate Attorney, Sung Hee (Glen) Yu, Esq. was invited to talk about the practice of immigration law practice and his professional experience at the Third Annual Case Western Midwest APALSA (Asian Pacific American Law Students’ Association) Conference last February 18, 2012.
This year’s conference entitled “Building Your Niche: Creating a Professional Identity in Practice and Beyond,” was designed by law students in light of the challenging employment market. APALSA members sought to put on a conference that focused on the expansive opportunities that a Juris Doctor can open up for students, law related or otherwise. Over twenty-five attorneys, professors, and other professionals were invited to attend and share their experiences. More than 80 law students attended this all day conference.
Mr. Yu, a Case Western Law School alum, was invited to speak at the Immigration Law Breakout sessions with two other immigration attorneys. He discussed various issues common to the practice of immigration law and shared his experiences in handling employment-based, family-based, and deportation and removal cases. He also offered advice on how to find internships and employment in immigration law firms and other jobs related to the field.
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On November 29, 2011, Congress passed H.R. 3012 (The Fairness for High-Skilled Immigrant Act) by a vote of 389-15 with no additional amendments. The measure now moves on to the Senate for consideration. The Fairness for High-Skilled Immigrant Act was introduced on September 22, 2011 by Rep. Chaffetz (R-UT) to eliminate the employment-based per-country cap entirely by fiscal year 2015 and raises the family-sponsored per-country cap from 7% to 15%.
This passed Bill aims to move away from the current law, under which immigrants from an individual country who are in the U.S. on an employment visa such as an H1-B cannot apply for more than seven per cent of the 140,000 green cards issued annually by the State Department. The Act ultimately eliminates this per country percentage cap. What this implies is that countries that are facing the highest demand-supply mismatch for green cards, among which India ranks first and China second, then Mexico and the Philippines will see a benefit in terms of prospective green card issuance (shorter waiting time for priority dates to be current), whereas the waiting time for other nations would be significantly longer.
Therefore, the Act greatly will improve the processing times for Indian and Chinese green card applicants. However, an unintended consequence of the Act likely would be the slower processing times for natives of other countries.
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The Obama Administration and the Department of Homeland Security established a high-level joint DHS and Department of Justice (DOJ) working group to conduct a case-by-case review of approximately 300,000 cases pending before the immigration courts, Board of Immigration Appeals (BIA), and the federal court of appeals. Those cases that are identified as “low priority” will be administratively closed and the respondents will be eligible to apply for work authorization with the United States Citizenship and Immigration Service (“USCIS”). Because of this policy, additional resources can be focused on “high priority “ cases such as those individuals who pose a threat to public safety.
The DHS has stated that its enforcement priorities are national security, public safety, border security, and repeat immigration law violators. As to what constitutes “low priority cases, the DHS has made clear that no category of cases will receive a blanket exercise of favorable discretion, but they have identified certain categories of individuals that may receive particular attention. These include: veterans, long-time permanent residents, minors and the elderly, individuals who have been present since childhood, individuals with serious disabilities or health issues, women who are nursing or pregnant, and victims of domestic violence or other serious crimes. As to negative factors, serious felons, repeat offenders, and individuals with a lengthy criminal record would most likely not be given prosecutorial discretion.
Administrative closure is a procedural convenience used to temporarily remove a case from the immigration court’s docket. The case remains pending, though inactive. Immigration and Customs Enforcement (ICE) attorneys and officers have been asked to consider all cases in light of the DHS enforcement priorities. These requests should be made in writing and should include as much supporting documentation as possible.
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On June 23, 2011, the Board of Immigration Appeals (BIA) concluded that the derivative child of a finacee visa holder is not ineligible for adjustment of status simply by virtue of having turned 21 after admission to the United States on a K-2 visa.
In Matter of Le, the respondent came to the U.S. with his mother, who became engaged to a U.S. citizen. The K visa petition was approved for the respondent’s mother and respondent, and they subsequently applied for adjustment of status in the United States. Respondent was 19 years old when he filed his adjustment application. Eventually, his mother’s adjustment application was approved, however, respondent’s application was denied since he had already reached the age of 18 at the time of his mother’s marriage. He was therefore determined to be ineligible to adjust status.
The issue was whether a fiancé derivative child who accompanied or followed to join his alien fiancé parent to the United States remains eligible to adjust status, if after satisfying the other statutory requirements, he attains the age of 18 or 21. The BIA conclude that to adjust based on a K-2 visa, an alien derivative child must establish that he or she was under 21 years of age at the time of admission to the United States. In this case, the Respondent was 19 years old at the time of admission to the United States, thus, he was allowed to renew his application for adjustment of status.
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According to 8 C.F.R 1.1, the term arriving alien means “an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry. An arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after any such parole is terminated or revoked.” Under the current regulations, the USCIS can adjudicate an adjustment of status application of a parolee with a final order. Under the amended jurisdictional provisions of the interim regulations, USCIS has been given jurisdiction over the adjustment applications of all arriving aliens regardless of whether they are in removal proceedings, with a limited exception for certain advance parolees not relevant to this practice advisory. Specifically, the amended regulations grant USCIS “jurisdiction to adjudicate an application for adjustment of status filed by any alien, unless the immigration judge has jurisdiction to adjudicate the application under 8 C.F.R. § 1245.2(a)(1).” 8 C.F.R. § 245.2(a)(1). The regulations strip an immigration judge of jurisdiction over the adjustment application of an “arriving alien” in proceedings. 8 C.F.R. § 1245.2(a)(1). Consequently, since the immigration judge does not have jurisdiction over such applications, USCIS does, in accord with this regulation. See also 92 Fed. Reg. at 27587 (explaining that one purpose of the amendments to the regulations is to make clear that USCIS has jurisdiction over the adjustment applications of “arriving aliens” in proceedings).
The main issue in Freire case is whether the BIA abused its discretion in denying Freire’s Motion for Remand or Continuance while he sought adjustment of status before the USCIS. The Second Circuit held that although IJs and the BIA do not have jurisdiction to adjudicate most arriving aliens’ applications for adjustment of status, it does not prevent IJs or the BIA from adjudicating motions for continuance in removal proceedings over which they already have jurisdiction. Though the Second Circuit finds no reason why the request was not granted, it remanded the case to the BIA to at least provide adequate reasons for their refusal. The Second Circuit vacated the decision, and the case is remanded to the BIA.
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The Adam Walsh Child Protection and Safety Act is a federal statute that was signed into law by President George W. Bush on July 27, 2006 to protect children from sexual exploitation and violent crime and to prevent child abuse and child pornography. Section 402 of the Adam Walsh Act amends section 204 of the INA to prohibit U.S. citizens and lawful permanent resident aliens who have been convicted of any “specified offense against a minor” from filing a family-based immigration petition on behalf of any beneficiary, unless the Secretary of Homeland Security determines in his sole and unreviewable discretion that the petitioner poses no risk to the beneficiary. The “specific offense against a minor” includes the following:
If a person is subject to the act, he or she must demonstrate to the USCIS that there is no risk to the beneficiary. Also, this Act removes spouses or fiancés of U.S. citizens convicted of those offenses above from eligibility for the “K” non-immigrant status.
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On April 19, 2011, President Obama hosted a White House Meeting with 70 national leaders—including Mayor Bloomberg, former Governor Arnold Schwarzenegger, among others—to discuss the challenge of fixing our broken immigration system.
According to the press, the President expressed disappointment over Congress’s failure to produce comprehensive immigration reform (CIR), or even components of CIR like the DREAM Act, and enumerated the many problems resulting from our broken system—families torn apart, shipping talent overseas, wage equity and work eligibility issues, etc. In the same meeting, the President also stated that the “Administration continues to improve our legal immigration system, secure our borders, and enhance our immigration enforcement so that it is more effectively and sensibly focusing on criminals.” Many reports, however, argue that administrative reforms thus far have not been ambitious enough, or as effective as the White House claims.
Moreover, the President seems to be pinning all future immigration relief on Congressional action—stating that “the only way to fix what’s broken about our immigration system is through legislative action in Congress.”
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One of the elements for Cancellation of Removal for Non-LPR (10 year cancellation case) eligibility is “good moral character.” If the applicant has been convicted of a Crime Involving Moral Turpitude (CIMT), the applicant becomes ineligible for cancellation of removal relief.
In this case, the Respondent was convicted of assault. In his Individual Hearing, the Immigration Judge ruled that the respondent’s assault conviction was for a crime involving moral turpitude. On appeal, the respondent argued that he was not convicted of an assault involving family violence, but was instead convicted of simple assault, which is not a CIMT. Moreover, when the Immigration Judge ruled that the respondent was convicted of a CIMT, the IJ used police reports (which was not part of the record of conviction) to determine whether the respondent’s assault conviction was a CIMT.
The BIA though held that evidence outside the record of conviction may only be considered in determining whether a conviction is a CIMT when the record itself does not conclusively answer that question. Thus, this holding allows Immigration Judges to undermine plea agreements by going behind a conviction to use sources outside the record of conviction to determine that an alien was convicted of a more serious offense that call fall within CIMTs.
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The May 2011 Visa Bulletin is out and below are some notes on specific movements this month:
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On April 8, 2011, AILA released an update on what would happen to different immigration-related government agencies in case the government shuts down. Please note that if the budgetary issues are not resolved, the government plans to shut down at midnight on April 9. As a consequence, the government claims that all but “essential” government functions are not allowed to work.
USCIS (United States Citizenship and Immigration Service)
The USCIS processes permanent resident, naturalization, and non-immigrant visa petitions, among others. It is the agency that conducts interviews, reviews applications, and makes decisions on green card and citizenship applications. The USCIS has indicated that in the event of a shutdown, they will continue to operate except for the E-Verify section.
DOS (Department of State)
The DOS deals with most visa and consular processing applications. J-1 waivers and visa petitions for people outside the United States go through them. If a shutdown occurs, only applications related to diplomats and “life or death” situations would continue to function.
CBP (Customs and Border Patrol)
The CBP guards the port of the entries – shipping ports, borders, and airports. They inspect and decide on whether a person gets in the United States, and enforce applicable immigration laws when someone is inadmissible. Inspection and law enforcement personnel are deemed “essential” personnel, but a shutdown will also limit their staff. The ramifications of a shutdown are thus uncertain.
EOIR (Executive Officer for Immigration Review)
The EOIR is the immigration court system. Immigration Courts, judges, clerks, and the Board of Immigration Appeals all fall under this branch. A general warning that “non-essential” personnel would not be allowed to work has been set forth, and that the only aspect of operations that is certain to continue is the detained docket, which is considered an essential function.
DOL (Department of Labor)
The Department of Labor is one of the first agencies involved in employment-based petitions, as they review and make determinations on the Labor Certification process. Personnel would certainly not be available to respond to emails or other inquiries, but it is yet to be determined if the ICERT and PERM functions would shut down.
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