World Journal Weekly on August 20, 2006 Published Mr. Lee's Article
"Immigration News Affecting Large Numbers of People"
By Alan Lee, Esq.†‡
1 The new affidavits of support rule published on June
21, 2006, with effective date of July 21, 2006.
The changes will 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 is where the I-140 was filed previously at another
service center. In such case, the I-485 should be filed with the
service center at which the I-140 is 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
(Senate Bill 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 already begun in San Diego and Laredo at
the time of this writing, 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
we can suggest 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 will 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.
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
that U.S.I.C.E.'s interior enforcement activities will continue
at the same or at an accelerated pace.1 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.
1 Subsequent to the writing of this article, U.S.I.C.E.
announced on July 17, 2006 a continuation of "Operation Return
to Sender" in Oklahoma following a four day initiative resulting
in the arrest of 127 individuals. The vast majority of those arrested
were Mexican.
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