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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Immigration News Affecting Large Numbers Of People

by Alan Lee, Esq.

For this article, we are focusing on developments in immigration law that we believe have the ability to affect a large number of people. There may be other issues which are more complicated and interesting, but we will try for numbers in this article.

1. The new affidavits of support rule published on June 21, 2006, with effective date of July 21, 2006. The changes apply to any application for immigrant visa or adjustment of status to permanent residence that is decided on or after July 21, 2006, even if the case was filed before July 21, 2006. The new rule comes with a new I-864 affidavit of support form which does not need to be notarized, and an I-864EZ form where the petitioner is the only sponsor and relying upon income from his or her employment or pension (must have W-2s) to meet the affidavit of support requirements, and I-864W for an individual to claim an exemption from the I-864 requirement. The forms can be used immediately although current I-864 forms will continue to be accepted until October 19, 2006. Major changes include the allowance of more than one joint sponsor to support the different members of the family, official recognition in regulation that the sponsor only has to submit as initial evidence his/her most recent federal tax return but that the sponsor's income in the year in which the application for an immigrant visa or adjustment status was filed bears a greater weight than the last earnings report to IRS, dropping of the six month requirement for household members to reside in the household before their incomes can be counted in the I-864A (contract between household member and sponsor), the re-valuing of assets to income to one-third of value (mostly applies to spouses and children over 18 of U.S. citizens) instead of the current one-fifth, eg., $100,000 in assets was previously valued at $20,000 for an affidavit of support, but under the new rule would be valued at $33,333, and the sponsor can now more easily file an affidavit of support if overseas as long as he/she either shows that domicile is still in the U.S. because he/she is only residing abroad temporarily, or if not domiciled in the U.S. shows, by a preponderance of the evidence, that he/she will establish his or her domicile in the U.S. no later than the date of the beneficiary's admission or adjustment of status to the U.S.. These changes will make the affidavit of support process much easier for persons who have been stymied by both the difficulties of gathering together the numerous pieces of documentation previously needed, or by the inability to sponsor if overseas or not having sufficient income or not having a well enough off joint sponsor.

2. Bi-specialization. U.S.C.I.S. is currently attempting to centralize adjudications of applications across the nation in specific service centers. (There are five service centers at present in Vermont, Nebraska, Missouri, Texas, and California). Rather than each of the service centers handling an entire slate of cases, the trend has been and will continue to be the specialization of cases of one type in a specific or two specific service centers. To this end, I-90 applications for replacement green cards since May 31, 2005, must be filed at a centralized location in Los Angeles, family based cases since December 2004 in a staggered process have had to be submitted to a lockbox in Chicago, and since April 1, 2006, bi-specialization has come into play as Vermont has paired up with California for I-129 petitions and Nebraska with Texas for I-140 petitions.

Currently all I-129 petitions for non-immigrant workers and accompanying I-539 applications to extend/change status for dependents should be submitted to the Vermont Service Center and all I-140 immigrant petitions for alien workers to the Nebraska Service Center (current U.S.C.I.S. policy is not to penalize those filing at the wrong service center, and to send the cases on to the correct one). Form I-129 includes the categories for E-1 treaty traders, E-2 treaty investors, all H categories including H-1B specialized occupation aliens, H-2 temporary workers, H-3 trainees, L-1 intracompany transferees, O-1 extraordinary aliens, P athletes and entertainers as part of a group, R religious organization members and TN North American Free Trade Agreement (NAFTA) aliens. Where the I-539 is being submitted after the I-129 is filed, the application should also be sent to Vermont unless the I-129 is pending at another service center, in which case the I-539 should be filed with that service center. Dependents in this situation should include a receipt notice for the principal's pending I-129. Where the principal's form I-129 has already been approved and the principal's status already changed or extended, the I-539 should be submitted to Vermont and include a copy of the approval notice and evidence of the principal's current unexpired status.

Form I-140 should be submitted to Nebraska with all other related applications such as I-485 adjustment of status, I-765 employment authorization, and I-131 advance parole applications (assuming that the priority date is current according to the monthly visa bulletin of the Department of State). Until July 23, 2006, an exception to filing I-485 adjustment of status applications to Nebraska in I-140 cases existed where the I-140 was filed previously at another service center. In such case, the I-485 was to be filed with the service center at which the I-140 was pending. Beginning July 24th, standalone I-485s should be filed in Nebraska. U.S.C.I.S. suggests that standalone I-485s should be accompanied with a copy of the I-140 receipt notice if labor certification is not required or copies of the I-140 receipt notice and the page of the Department of Labor certification showing the priority date, if labor certification is required. Since the date of rule implementation, both the Vermont and California service centers have been shipping I-140 and I-485 cases which have not yet been adjudicated to the other service centers.

Two possible difficulties that we see in bi-specialization are 1.) the surprise factor that cases that would previously have been approved at one center may now be denied if the new service center does not view the particular situation as favorably as did the local service center. At the American Immigration Lawyers Association New York chapter meeting with Keith Canney, manager of adjudications at the Vermont Service Center on June 5, 2006, Mr. Canney remarked that the sister centers talk to each other in order to have consistent adjudications and if there is disagreement, seek guidance from a higher level at U.S.C.I.S. headquarters. Hopefully this will alleviate that concern and the U.S.C.I.S. is able to speak with one voice from which all viewpoints were considered. 2.) Even more worrisome for many petitioners may be the need to establish the bona fides of the petitioning organization with the adjudicating facility. For example, an organization which has been transacting business with the Texas Service Center for many years and has a good reputation with the center now finds itself having to ship I-129s to Vermont and I-140s to Nebraska. Unless it is a nationally known company, it might be more susceptible to U.S.C.I.S. requests for further evidence (RFEs) to prove itself again before that particular service center. One would hope that there is a list of organizations seen as bona fide other than nationally recognized ones that U.S.C.I.S. can data-share within its service centers so that this concern does not become a nightmarish recurring situation.

3. Legalization. It is difficult to speak confidently of the possibility of comprehensive immigration reform (encompassing both border security and realistically dealing with the 9-14 million illegals in the country) now that the House leadership said on June 22nd that it will hold a series of meetings across the nation in the summertime to provide a needed forum for Americans to offer their views on contending with illegal immigration as well as explore the measure passed by the Senate (S. 2611) that House Republicans oppose. Further dispiriting news was President Bush's Independence Day Senate bill waffling which many took as a sign that the president will support legislation with a two-year border enforcement headstart on the legalization or guest worker provisions. Even with President Bush pushing for a comprehensive plan before, there had already been a good chance that nothing would get done this year. Now the opportunity for comprehensive immigration reform appears further in doubt. At this time, conservative Republicans appear willing to take the heavy blow of long-term loss of Hispanic voters since they are convinced that they will benefit in the short run from the outrage of Americans at illegal immigration, although even Republican polls suggest otherwise and they run the danger of marginalizing themselves as out of touch with the American people. In the meantime, to counteract the dog and pony road show by the House which has been slated for a number of cities, persons who are illegal would be best advised to continue marching peacefully when the situation presents itself. They should also think twice before beginning immigration cases that would require enactment of any provision of the favorable Senate bill as a condition to relief. The one positive action that can be suggested is the continued payment of income taxes as that is a mandatory obligation anyway. Besides being physically present in the U.S. by 4/5/01 to qualify under the first tier (earned adjustment) of S. 2611, applicants must have been employed for at least three years between 4/5/01-4/5/06, and applicants for the second-tier (Deferred Mandatory Departure) besides being physically present and illegal in the U.S. on 1/7/04 must have been employed in the U.S. sometime before 1/7/04, and have been continuously employed since that date except for brief periods of unemployment lasting no longer than 60 days. Illegal aliens can pay their taxes by applying for an individual taxpayer identification number (ITIN) with form W-7 when they send in their tax returns to the IRS.

4. K-1 fiancé(e) visas. In this case, U.S.C.I.S. was caught flatfooted by the implementation of the International Marriage Brokers Regulation Act of 2005 which was signed into law on January 5, 2006 as part of the Violence Against Women and Department of Justice Reauthorization Act of 2005 and mandates more information to be collected from the petitioner in K-1 cases concerning prior convictions for incidents of domestic violence or any other acts which could lead to abuse of the fiance(e). The law's implementation date of March 6, 2006, only gave the U.S.C.I.S. two months to meet the requirements of the new law. The agency was not ready and conducted business as usual, approving many cases after the deadline under its old standards and forwarding approved petitions to U.S. consular posts overseas. Many cases at American consulates and embassies overseas have now had to be returned to the approving immigration offices in the States. U.S.C.I.S. announced recently that it would begin issuing RFEs immediately for over 10,000 K-1 cases on hold at its service centers that will require petitioners to disclose relevant criminal background information to the agency and for the agency to provide the information to the fiancée. U.S.C.I.S. also announced on 6/15/06 the publication of its new revised I-129F petition for alien fiancé(e) form which incorporates the questions needed to be asked of the petitioner concerning these issues. The form is currently available with a revision date of 5/23/06 and asks in addition to questions on prior crimes whether there were mitigating circumstances and whether the fiancé(e) meeting was arranged through the services of an international marriage broker. This situation has unfortunately cause much anguish to K-1 petitioners and their beneficiaries, many of whom did not know what was happening to their cases until June. It has been especially galling to parties with already approved petitions who were scheduled for interview at the consulates or embassies only to be de-scheduled and informed that the petitions would be returned to the States. Hopefully the U.S.C.I.S. will place first priority on rushing these cases so that the affected U.S. citizens and their fiance(e)s do not have to wait a moment longer than is absolutely necessary.

5. The 2100 (and more). U.S. Immigration and Customs Enforcement (ICE) announced its "Operation Return to Sender" with great fanfare on June 14, 2006. The operation targeted persons with criminal records, gang members, and fugitives who violated deportation orders. 116 were caught in the New Jersey and 114 in New York State. Of the 2179 total number caught, 654 were fugitives ignoring or violating deportation orders and about 800 had been deported. The operation is interesting as the agency announced the results on the day after it ended the operation although it has now resumed the program in other cities. Does that mean that aliens who have violated final orders of the immigration court, Board of Immigration Appeals, or the federal courts should not have cause to worry? No, but it is clear that the agency does not have enough personnel or bedspace to detain large numbers of fugitives of final immigration orders. The high percentage of those deported within a short time of capture (approximately 800 of the 2179) will generally not hold true even if ICE is only targeting persons with violations of final orders. Many in this category will not have travel documents; some will not even know that they have had final orders against them because of agency error; and changes of law such as U.S.C.I.S.'s recent concession that paroled members of the disfavored class of "arriving aliens" have a right to apply for adjustment of status if eligible make these and other cases worthy of relief on motions to reopen. Before Mr. Bush's sidestep, the recent enforcement moves of U.S.I.C.E. appeared to be the Administration's attempt to prove its bonafides on border security to its conservative base to gain support for a comprehensive immigration bill. That also appeared to be the strategy behind sending National Guardsmen to support the Border Patrol. Now most people do not know what to think of the President's position on comprehensive immigration reform. Until the immigration debate is resolved by either passage or defeat of a comprehesive plan, one can only expect U.S.I.C.E.'s interior enforcement activities to continue at the same or at an accelerated pace. Would the agency go so far to arrest the undocumented at rallies? It is difficult to imagine that the agency would be so provocative as to risk a riot at any of these events.

© 2006 Alan Lee, Esq.


About The Author

Alan Lee, Esq. is a 25+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: An Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.


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