If Only the President's Immigration Goals Become Reality.........
Last Tuesday, July 10, President Bush naturalized a group of immigrants at a ceremony on Ellis Island in New York. During his welcoming address, he highlighted his goals for the INS and immigration policy. If only these goals got implemented, life would be so much easier for aspiring immigrants.
I quote the part the President's speech regarding his immigration aspirations:
"Today, here's the goal for the INS: a six-month standard from start to finish for processing applications for immigration. It won't be achievable in every case, but it's the standard of this administration and I expect the INS to meet it. Not every applicant is entitled to admission, but every applicant is entitled to a timely and courteous review of his or her case. We can help legal immigrants in other ways. If a child's parent and financial sponsor should pass away, we should permit the other parent to take over as a sponsor. And in the case of a minor child, entitlement to a visa should be measured by the age on the date of the application, not on the date the INS has finally processed the visa. And we should spare families the hardship of separation while one member is awaiting a green card. I support providing an extension of the temporary window that allows people to file for legal residency without having to return to their country of origin. And I urge the members of the United States Congress to act swiftly on 245-I reform."Let's analyze each of these goals to see how far removed they are from reality and to recommend ways toward achieving them.
A six-month standard for processing immigration applications
Most filers experience years of delay. Spouses of United States citizens have to wait two or more years in New York before they can get green cards. Hard working and law abiding permanent residents have to wait for over a year to become United States citizens. If the case does not close out at the initial interview due to a missing file or expired fingerprint, the case can drag on for years. Beneficiaries of immigrant visas under the employment/family-based petitions also have to wait endlessly at the four INS Service Centers.
There is no excuse for such delays. If an immigration lawyer took that long to process an application, he or she would be subject to disciplinary proceedings. If the INS were a private corporation, its irate customers would have forced it to close down by now.
Not everybody at INS is inefficient or incompetent. The agency does have extremely dedicated managers and officers who want to improve things, but they are strapped with very limited resources and have to deal with myriad changes in the law that result in a surge of new filings.
It is time that Congress allocate sufficient resources to the INS, and also give equal importance to both its benefits and enforcement functions. Too much importance is now given to enforcement and not enough to benefits, even though the INS mission is to grant visas, green cards and citizenship, in addition to deporting violators. It would be ideal to create a separate benefits and enforcement branch under one head. This benefits branch should be well funded with efficient managers and officers.
Death of a petitioner
Under present INS rules, a family immigration petition is automatically revoked if the sponsoring parent or relative dies. President Bush addressed this issue with respect to allowing the other parent to take over as a sponsor if the first parent passes away. A similar principle should apply to all types of petitions involving sponsors other than a parent, such a s a spouse, child or sibling. Therefore, if the sponsoring spouse dies, the other spouse should be permitted to continue the petition on his her own.
Children aging out
The child of a parent who is being sponsored can only acquire a derivative green card before it turns 21. Due to processing delays, the child often turns 21 at the time the parent becomes eligible for the green card. Therefore, a child's entitlement to a visa, as suggested by President Bush, should be measured by the age on the date of the application, not on the date the INS has finally processed the visa several years later.
Spare families the hardship of separation while one member is awaiting the green card
Due to quotas in the immigration system, one family member has to wait for several years before he or she can unite with the sponsoring relative. For instance, the spouse of a green card holder may have to wait for approximately five years for the quota to clear and join the other spouse in the United States. Adult children of green card holders may have to wait for eight years or longer. Brothers and sisters have to wait in excess of fifteen years.
If President Bush's goal becomes a reality, INS could allow the separated family members to enter the United States on temporary visas while waiting for the green card. Better still, it is time to reform the immigration visa preference system to either expand or abolish quotas altogether that would allow loved ones to get a green card immediately.
Extension of § 245(i)
Before Section 245(i) expired on April 30, undocumented aliens who filed labor certification applications or immigration visa petitions on or before that day can hope to obtain green cards in the United States once their applications or petitions are approved. Without the benefit of Section 245(i), they would have to return to their home countries for their green cards and possibly face a 10-year bar against re-entry into the United States.
Unfortunately, the four-month window to file an application - December 21, 2000 to April 30, 2001 - was too short. By the time people got to know about Section 245(i), the April 30th deadline was already looming ahead and people scrambled to have their employer or qualifying relative file applications before the deadline. Furthermore, "consultants and notarios" took advantage of the confusion generated by the short period of time, inadequate legal infrastructure and late issuance of INS regulations to offer their unscrupulous services to people desperate for guidance. It is, therefore, crucial that Section 245(i) be restored permanently. Another short extension will once again generate the same kind of confusion and would also overload agencies such as the INS and Department of Labor with a surge of applications that would result in further delays.
President Bush urged Congress to act swiftly on Section 245(i) reform. It is hoped that such reform would restore Section 245(i) permanently rather than for another few months.
About The Author
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is Vice Chair of the American Immigration Lawyers Association's National Labor Department Liaison Committee, trustee of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-686-1581 or firstname.lastname@example.org.