News Update - June 13, 2009

By Alan Lee, Esq.^†‡

-New DHS Policy on Widow Penalty;
-Restricted Visa Availability Forecast by Department of State;
-Supreme Court Nominee Record on Immigration on Immigration Cases not Out of Line;
-E-Verify Rule Further Postponed;
-Visitor Exit Program Being Worked Upon

The DHS agrees to suspend its enforcement of the "Widow penalty" in which surviving immigrant spouses of U.S. citizens who die before their marriages have lasted for two years are not entitled to immigration status. DHS Secretary Janet Napolitano on June 9, 2009, granted deferred action for two years to widows and widowers caught in the situation as well as their unmarried children under 18 years old; and directed USCIS to suspend the adjudication of visa petitions and adjustment applications in these cases; to defer initiating or continuing removal proceedings or executing final orders of removal against qualified widows/widowers and their eligible children; and to favorably consider requests for humanitarian reinstatement where previously approved petitions for widows and widowers had been revoked because of the law.

Charles Oppenheim, the Chief of Immigrant Visa Control and Reporting at the Department of State, advised the American Immigration Lawyers Association that the demand for EB-1 and the fourth and fifth employment based preferences for applicants remains high in fiscal year 2009. EB-1 applications, due to heavy demand may be cut off for China and India born this year in August or September. EB-2 applications from China and India are also headed to become unavailable in August or September. EB-3 worldwide will be unavailable for the remainder of this fiscal year (new fiscal year begins in October).

According to Senator Charles Schumer, Supreme Court nominee Sonia Sotomayor sides with the alien in her decisions on immigration cases only 17% of the time, about equal to the percentage of the entire Second Circuit Court of Appeals, during a two-year period studied by law professors at Temple and Georgetown Universities. Senator Schumer said that these findings should put to rest any doubts about Judge Sotomayor's fidelity to the role of law, even in immigration cases which would most test her so-called empathy factor.

Implementation of the “E-verify rule” which requires that all federal contractors and subcontractors use the E-verify system to verify employment eligibility has been suspended until Sept 8, 2009.

Finally, the US is to launch a pilot phase of an exit program integrating non-US departure with existing arrival information. It requires minimal biometric and biographic data from covered aliens and enables cross-checking against a list of subjects of interest. A privacy impact assessment for the proposed program was recently completed on May 20, 2009.

† The author is a 26+ 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.

‡ This article © 2009 Alan Lee, Esq.

Copyright © 2003-2012 Alan Lee, Esq.
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