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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The Reentry Permit is a travel document issued to Lawful Permanent Residents who wish to travel for over six months. Federal regulations require permanent residents to be physically present in the United States when the application is filed. Once the application is filed, the applicant may depart the United States, and the approved document can be delivered abroad. The applicant may also wait for the reentry permit before leaving.
Currently, applicants of reentry permits may request expedited service in cases that fall under one of the following categories:
The application also requires that biometrics be completed, and as a practical matter, the applicant must be physically present in the United States to complete the biometrics. This has led to difficulties in some cases where an applicant needs to leave as soon as possible.
In response to this biometrics issue, the USCIS recently announced new guidelines for expeditious biometric appointment requests:
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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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On November 7, 2011, the USCIS published a policy memorandum regarding the priorities that they will follow in placing certain immigrants in removal proceedings through the Notice to Appear).
This newly issued policy memo provides guidance to USCIS officers on how to initially issue the NTA. The policy memo states that cases involving fraud, serious crimes, categorized as aggravated felonies under the Immigration and Nationality Act, (murder, rape, sexual abuse of minors, possession and/or trafficking in illicit firearms and explosives, crimes of violence, ransom, child porn, human trafficking, drug trafficking, alien smuggling, human rights violators, gang members, and re-entry after a prior deportation), and threats to national security will be the top immigration enforcement priority. Other cases are categorized as “non-egregious public safety” cases. Depending on the circumstances of each case, the policy memo requires the USCIS to follow a complicated referral procedure where USCIS will refer the case to ICE first and let ICE decide whether it is worth their while to pursue. Absent a finding by ICE, USCIS will not issue an NTA in those cases. In other cases, USCIS may automatically refer the cases for an NTA.
Also, under this new policy, USCIS will issue NTAs where required by statute or regulation. For example, such cases include termination of conditional permanent resident status, denials of form I-751 petitions, denials of form I-829 petitions by entrepreneurs to remove conditions, termination of refugee status, denials of NACARA 202 and HRIFA adjustments, referrals of asylum cases to immigration court, and when an asylum applicant withdraws his/her application. USCIS will also issue an NTA if a Statement of Findings substantiating fraud is part of the record.
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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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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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He was tired. He just got out of jail a few weeks ago. Ten plus years in the United States. Multiple lawyers, hearings, consultations, all for nothing at that point. He had a dream during that faithful day at the airport in New York, somewhere around 2000, after a month long trip, the itinerary of which was deftly planned by some snakehead, one who instructed him to destroy his passport in the plane prior to landing, which he did.
At customs in the airport, as it was with every foreigner trying to enter the United States, he was inspected and questioned by an officer. He had nothing. Not his real passport, not a fake passport, not a card, no immigration document whatsoever, just as the snakehead instructed him.
A common occurrence in the mid to late nineties on to the turn of the century, he was a Chinese national who was paroled as an arriving alien. Through a myriad network of “travel agencies” and lawyers, he went through what a lot of Chinese individuals went through around that time. Some ended up with brilliant lawyers, eventually winning their asylum cases, leading them to permanent residency and eventual naturalization. The unfortunate some ended up with worse attorneys, who half-heartedly represented their clients with minimum effort and “formula” arguments. He said he fell into the latter group, and he lost his case, even with a BIA appeal filed after, the decision was still sustained. He had a final order of removal.
He moved around New York City, working from restaurant to restaurant, toiling day in and day out to make a living. He eventually met what would later on be his wife. They almost had the same path of coming to the United States, almost the same set of people encountered through this immigration maze, from her entry, to her counsels, to her hearings. Alas they had different results to their asylum cases, unlike her husband, she won.
They eventually got married in New York, and she eventually became a permanent resident, and they eventually had two wonderful kids, and they also moved out of New York City, away from it all, where they’d find peace in raising their kids, or so they thought. They moved to a small suburb of Cleveland in Northeast Ohio. They ran a Chinese restaurant, bringing with them the work ethic that they’ve always had. He still had a final order. As far as he knew he was simply running a reverse race against time. He thought nothing could be done. He had a final order, he thought, and that was it.
He consulted with our firm sometime after he was released from immigration detention on an order of supervision. Immigration knew about him anyway, might as well consult with an attorney even though as far as he was concerned, he was done.
I still remember that day, that hopeless submissive look, that tired recounting of his experience, probably told dozens of times with different people, all with the same conclusion – “There’s nothing we can do, you have a final order”. He did not know the terms. He did not know what an arriving alien was. He went through the basics, his entry, his A number, his denied asylum case, his marriage, his detention, his tiring past. He brought two bags of files, and was adamant in simply dumping all paperwork on our tables, as we sifted through what should be the most important parts of the file.
It didn’t take long, to his surprise. We saw the notice to appear. He was an arriving alien. He destroyed his passport in the plane according to the various documents in his file.
We informed him he can apply for and get his green card.
His reaction was not that of joy, nor excitement, nor of surprise. It was more of a yearning look, a few ticks from begging, more close to hoping. Hoping that this is not a hoax nor a false promise. We could tell he’s been through it all. We were not sure if he believed us due to his past experiences, but we knew he can get it. We could not read his face, a blank look, even a doubting look. So it was to our surprise that within ten minutes he decided to retain our firm for his green card application. To this day we had no idea why he decided to retain us. We still remember that blank look on his face after we told him it’s possible. He probably thought he had nothing to lose. Immigration knows him already. He was just detained recently. Might as well go for it. My last chance.
The whole crux of these cases stem from a complex and sometimes epic tale spanning ten or more years, but fall under a simple premise: Arriving aliens with an unexecuted order of removal who remain in the United States past their final order are eligible to adjust status based on marriage to a U.S. Citizen, and the USCIS has jurisdiction over these applications. He was an arriving alien. He had a final order of removal. He was married in good faith to a U.S. Citizen. No fraud. No criminal record. Case is possible.
It was the usual process on our end since then, preparing the applications and arguments, attaching immigration memorandums on arriving alien eligibility, preparing the client for his interview, and ultimately accompanying our client at his interview.
Finally, after over a decade of toiling in the United States, he received his green card around two weeks later.
It was only then that his reaction could finally be discerned, when that numb expression on his face flew out the door. Ten plus years in the United States, multiple hearings, lawyers, consultations, and finally, he was not tired anymore. He finally has his green card.
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