How a 2018 Government Shutdown Might Affect Your Immigration Case

As happened only a couple of years ago, we are faced yet again with the threat of a government shutdown. Because the U.S. federal government may shut down, it's important to know how your immigration case may be affected.  

If you have a case pending before the U.S. Citizenship and Immigration Services (USCIS) your adjustment or naturalization interview will most likely take place as scheduled.  The same would apply for naturalization ceremonies.  Because USCIS is funded primarily through application fees, it is expected that most of its services and centers will operate normally.  However, because USCIS works with other agencies to adjudicate pending cases, temporary delays should be expected. 

If you have a removal or deportation case pending before the Executive Office for Immigration Review, most likely only detained cases will go on as scheduled.  Non-detained master or individual hearings would be rescheduled. Also, the front window of the immigration court would be closed and the immigration court phones would not be answered. 

If you have a case pending before the National Visa Center, an agency within the U.S. Department of State, DOS would cease non-emergency visa services and non-US citizen services at U.S. Consular Posts abroad. As a result, no new visas are expected to be issued and visa application interviews would be rescheduled. Also, no passport applications will be accepted during a government shutdown.  

If you have a case pending before the U.S. Department of Labor, their offices will be closed.  This will delay the processing of PERM cases, as well as the processing of Labor Condition Applications for non-immigrant visas such as H-1Bs, E-3s, etc.  Also affected would be requests for Prevailing Wage Determinations with the U.S. Department of Labor.

Hopefully the government will not shut down as feared and the processing of all immigration-related cases will not be affected. 

Unlawful Presence I-601 Waiver: Advance Copy of USCIS Final Rule

The long awaited "Advance Copy of USCIS Final Rule to Support Family Unity During Waiver Process" was just released.  This final rule relating to the unlawful presence waiver is not effective yet, but at least we're getting a sneak peek at the regulation.  With this new change, spouses, parents, or children of U.S. citizens can file their unlawful presence waiver applications while still in the United States.  Once approved, they would still have to leave the United States but this time:

1. For a much shorter time (weeks instead of months or years); and
2. With an assurance that the applicant will be allowed to return to the United States after consular processing (ok, maybe not an assurance, but we'll unpack this on a different post)

Although this is a welcomed change that is sure to benefit many families, it's important to keep in mind that the "extreme hardship" standard is still very much in place.   What is "extreme hardship"? No one really knows for sure, since it's not defined in our immigration laws, but USCIS claims to know one when it sees one (hmm..).  In any case, many years of case decisions give us a good idea.

 

As an attorney who has successfully assisted many families in preparing waiver petitions throughout the years, it is very important that interested parties consult with a qualified immigration attorney before proceeding with the unlawful presence waiver.  In future posts we will discuss the "extreme hardship" standard, when is a waiver needed, what is a waiver, who is a "qualifying relative", how to apply, what questions to ask your immigration attorney, what documents to prepare, and other similar topics.  Stay tuned and thank you for reading. 

Commandment #6 of Applying for Naturalization: Thou Shall Go Back to Your Roots

Not remembering important information can complicate an applicant's naturalization application.  This is especially true when dealing with issues of eligibility.  That's why having a copy of one's  "A file" has become increasingly more important. The "A file" is basically a person's record maintained by the U.S. Citizenship and Immigration Services (USCIS). Once created, it contains all immigration records for that particular person.  Recently I wrote about the Five Benefits of Having a Copy of Your "A File" from USCIS or the Immigration Court through a FOIA Request.   I encourage readers to review that post for some practical information.

Take for example the case of an applicant who obtained Lawful Permanent Resident (LPR) status through an employment-based petition.  The answers to the questions that USCIS may have can get complicated when considering the passage of time, promotions, employers with subsidiaries, change of ownership, and other factors.  Some questions could be:

• What was the original title for the position?
• What were the duties?
• What were the minimum requirements for the position?
• Did the position require the supervision of any workers?
• Who signed the petition?

USCIS wants to ensure that all eligibility requirements were met at the time of adjudication.  However, since in all likelihood at least five (usually more) years have passed since the original petition was filed with the U.S. Department of Labor and USCIS, the applicant should have at least reviewed those old files to refresh his or her memory.

Applicants should come to the interview prepared to address potential concerns that the adjudicating officer may have.  If the applicant obtained LPR status through employment, then the applicant should bring documentation showing that the applicant continues to work for the same company. This evidence could include tax returns, W-2s, pay stubs, and a letter of employment.  If the applicant is no longer employed by the sponsoring company, then the applicant should come prepared to show the time he or she was actually employed by the company.     

The general rule of thumb is that if an applicant has changed to a different employer (or changed spouse's for that matter) within one year of obtaining their LPR status (based on that relationship), they should come prepared to show the legitimacy of the employment or marriage relationship. The closer the severing of the relationship is from the time of LPR grant, the more likely it is that questions will be asked.  It's important to keep in mind that an application for naturalization gives USCIS a fresh opportunity to review the applicant's file in its entirety - not just the naturalization or citizenship application.

Have We Lost Our Mojo? Revisiting Comprehensive Immigration Reform (CIR)

I think for the most part supporters of Comprehensive Immigration Reform (CIR) have lost their mojo. To understand what mojo is, and why it's important, I encourage you to watch this short video on YouTube.  I'm not exactly sure what happened, or when, but at some point all mojo powers were zapped from community organizers, congressional leaders, common citizens, stakeholders, and yes - even from President Obama. 

Do you remember when President Obama had major mojo when he ran for president and promised CIR? At some point leaders of the CIR movement found themselves outnumbered and outmaneuvered and they simply threw in the towel.  Before we knew it, proponents of CIR were sitting quietly on the sidelines while the national debate raged on.  Opponents of CIR in the meantime took over the high places in the marketplace of ideas. All of the sudden deporting all 15 million supposedly unlawful immigrants in the U.S. actually sounded like a great and feasible idea.  Our highly organized, effective, articulate, tech-savvy, champions of the cause that inspired thousands of people to take to the streets were left neutralized - mourning and lamenting what could have been.  

It is time for our leaders to rise to the occasion and bring some clarity to the table by explaining why CIR is good for the United States, who will benefit, under what conditions, and what's in it for our country, our communities, for the American worker - from Joe the Plumber to the investment banker in Wall Street.  We need to articulate what CIR will do to enhance: 

• Border security to stop the flow of undocumented people from crossing the border.
• Providing tools to employers to ensure employment eligibility and sanction those employers who knowingly employ unauthorized workers. 
• Removal of serious criminal offenders and enforcement of immigration laws consistent with the government's immigration enforcement priorities and resources. 

These are legitimate concerns that we ignore at our own peril. They must be part of a sensible solution to reform our immigration laws.  So far the arguments from both sides have left much to be desired and have been plagued with missed opportunities to create a feasible road map where both sides can meet half way. On the one hand we have some calling for the immediate deportation of all "illegal aliens" and on the other side we have some calling for complete open borders with no restrictions.   I think both sides can meet somewhere in the middle.  I say we get back to the basics - let's re initiate the conversation.  I think (for the most part) both sides have very reasonable concerns that are better addressed by sitting together to discuss these issues in an informed, honest, and constructive manner. 

Regaining the territory lost will require some major mojo power - but I think it can be done. By being informed of the issues and understanding what's at stake, proponents of CIR should have a well-reasoned and articulate defense of CIR when making their voices heard.  The election cycle coming up in 2012 will give us a fresh opportunity to retake this cause.   

Five Benefits of Having a Copy of Your "A File" from USCIS or the Immigration Court through a FOIA Request

Obtaining a copy of your "Administrative" or "A" file from the U.S. Citizenship and Immigration Services (USCIS) or the Executive Office for Immigration Review (EOIR) has many benefits.  As most of our readers know, USCIS is part of the U.S. Department of Homeland Security and it is responsible for the administration of immigration and naturalization adjudication functions and establishing immigration services policies and priorities.  The Immigration Courts are a component of EOIR under the U.S. Department of Justice.

The request for a copy of the A-file is done through a Freedom of Information Act (FOIA) request. The "A file" is basically a person's record maintained by USCIS (and legacy INS) since at least 1955. Generally speaking each individual should have only one A-file.  The A-file is created when action is required for a particular individual. This "action" can include for example petitioning for an immigrant visa, requesting an immigration benefit, the initiation of removal proceedings, or submitting an adjustment of status petition.  The A-file can also be created at "any other time a case file is needed". Once created, it contains all immigration records  for that particular non-citizen applicant.

I'm not very fond of the word "alien" so I use "non-citizen applicant" instead.  In all fairness to our friends at USCIS, the term "alien" is actually a statutory term defined in the Immigration and Nationality Act (INA).  INA section 101(a)(3) defines an "alien" as any person not a citizen or national of the United States.

Although there are many reasons why an applicant should have a copy of his or her A file, here are some:   

• It helps you determine whether or how to proceed with an application. In some cases the A file will reveal facts that may have not been disclosed previously or were simply forgotten.  Some of the information contained in the A file may affect eligibility for the benefit desired, or may affect where and how the application has to be submitted.
• It will help you see what the immigration officer is seeing.  The A file will have the documents you submitted and those that others have submitted on your behalf.  The interviewing officer will be making his or her decision in part by what's in the record. It's important that the applicant also know what's in the file.
• It helps you prepare.  By knowing what you have in the file, you can prepare adequately for an interview and anticipate issues that may be addressed.  In some cases many years have passed since the original A file was created and it's important to review the file. 
• It helps you determine eligibility. In some cases obtaining a copy of the A file will help determine eligibility for the relief sought such as a Motion to Reopen or assist in documenting an application for relief.
• It's free (for the most part). Most requests have no fees associated with them (unless the records are voluminous or take several hours to research).

Keep in mind that each agency has different procedures on how they handle FOIA requests.  Because every agency has different FOIA procedures, Customs and Border Protection and Immigration and Customs Enforcement should be contacted separately.  Below is some information on how to submit a FOIA request with USCIS and EOIR. 

• USCIS.  Utilize Form G-639.  USCIS' website has a lot of useful information that will assist you in preparing and submitting the application. 
• EOIR (Immigration Court).   The request should be made in writing to EOIR. The request should have some information such as a description of the records sought, the applicant's name, "A number", and the date and court location of the proceedings.  A Certification of Identity (Form DOJ-361) may also be required.   For more information please review EOIR's Fact Sheet on FOIA requests. 

Done with time, the results of a FOIA request can be a very useful tool.  Keep in mind that FOIA requests take several months to process. Submitting the request as early as possible is the way to go.

How a Government Shutdown Might Affect Your Immigration Case

Because the U.S. federal government may shut down, it's important to know how your immigration case may be affected.  

If you have a case pending before the U.S. Citizenship and Immigration Services (USCIS) your adjustment or naturalization interview will most likely take place as scheduled.  The same would apply for naturalization ceremonies.  Because USCIS is funded primarily through application fees, it is expected that most of its services and centers will operate normally.  However, because USCIS works with other agencies to adjudicate pending cases, temporary delays should be expected. 

If you have a removal or deportation case pending before the Executive Office for Immigration Review, most likely only detained cases will go on as scheduled.  The immigration courts in Arlington, Virginia and Baltimore, Maryland have stated that, in case of a government shutdown, only detained cases would be heard and that non-detained master or individual hearings would be rescheduled. Also, the front window of the immigration court would be closed and the immigration court phones would not be answered. 

If you have a case pending before the U.S. Department of State, DOS is expected to cease non-emergency visa services and non-US citizen services at U.S. Consular Posts abroad. As a result, no new visas are expected to be issued and visa application interviews would be rescheduled. Also, no passport applications will be accepted during a government shutdown.  

If you have a case pending before the U.S. Department of Labor, their offices will be closed.  This will delay the processing of PERM cases, as well as the processing of Labor Condition Applications for nonimmigrant visas such as H-1Bs, E-3s, etc.  Also affected would be requests for Prevailing Wage Determinations with the U.S. Department of Labor.

Hopefully the government will not shut down as expected and the processing of all immigration-related cases will not be affected. Should you have any questions please feel free to contact our office.

Matter of Vo: CIMT for Attempt Offenses

In Matter of Vo, 25 I&N Dec. 426 (BIA 2011), the Board of Immigration Appeals (BIA) held that where the substantive offense underlying a foreign national's conviction for an attempt offense is a crime involving moral turpitude, the foreign national is considered to have been convicted of a crime involving moral turpitude for purposes of section 237(a)(2)(A) of the Immigration and Nationality Act (INA).

The respondent is a native and citizen of Vietnam who was admitted to the U.S. as a lawful permanent resident in 1989. He was convicted in California of grand theft and receipt of stolen property. He was also convicted, at a later date, of attempted grand theft. The Department of Homeland Security (DHS) initiated removal proceedings against the respondent, charging that he was deportable under INA § 237(a)(2)(A)(ii) as an alien convicted of two or more CIMTs that did not arise out of a single scheme of misconduct.

The Immigration Judge found that because section 237(a)(2)(A) does not expressly reference “attempts,” as does section 212(a)(2)(A)(i)(I), the respondent’s crime did not qualify as a deportable offense, so he terminated the proceedings. The Department of Homeland Security appealed. The BIA reasoned that, with respect to moral turpitude, there is no distinction between the commission of a substantive crime and the attempt to commit it. Noting that Congress added the “attempt” language to various sections of the Act at different times, the Board determined that it could not reasonably conclude that the inclusion of attempts in those other sections represented a unified design to effectuate a single intent or that Congress’ express inclusion of attempt offenses in some sections indicated its intentional exclusion of them from other sections.

Since grand theft is a CIMT, the respondent's attempted grand theft was also a CIMT, rendering him deportable based on his convictions. Therefore, the BIA concluded, the respondent is deportable as charged for a crime involving moral turpitude within the meaning of the statute.