News Update - December 28, 2012
Top 10 Immigration List for 2012
This was a year that in many ways had more good things happening in immigration than in recent years. The below is our take on the most compelling positive or negative aspects with ability to affect larger numbers of people.
1. Deferred Action for Childhood Arrivals (DACA) was born out of frustration that Congress would never enact the DREAM Act giving relief to young undocumented immigrants. After waiting 2 years for Congress to act, the Obama Administration announced temporary relief to this group through administrative and not legislative action on June 15, 2012. The criteria for relief were the following:
- Came to the United States under the age of sixteen;
- Have continuously resided in the United States for at least five years preceding the date of this memorandum and are present in the United States on the date of this memorandum;
- Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
- Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
- Are not above the age of thirty.
As of December 13, 2012, 355,889 applications had been accepted, 12,014 rejected, 336,464 scheduled for biometrics, 157,151 were under review, and 102,965 had been approved.
2. The Supreme Court’s decision in Arizona v. United States, 132 S. Ct. 2492(2012) on June 25, 2012, was tremendously important in stopping the surge of state governments enacting draconian measures to drive out undocumented immigrants. Although the court affirmed states’ rights for the police to demand that those who are stopped show their papers, it quashed the Arizona law’s provisions making failure to comply with federal alien registration requirements a state misdemeanor; making it a misdemeanor for unauthorized aliens to seek or engage in work in the state; and providing that a state officer without warrant could arrest someone if the officer had probable cause to believe that the person had committed any public offense which made him removable from the United States. Prior to the court’s decision, 5 states other than Alabama had enacted similar legislation and 24 introduced but not yet enacted such.
Deportations have been a huge story for the past few years, and some would say the Obama Administration has been ruthless in its enforcement policy. In figures just released for fiscal year 2012, US ICE removed 409,849 illegal immigrants, a record number following other record numbers in recent years. In fiscal year 2011, the administration removed 396,906, fiscal year 2010 392,862, fiscal year 2009 389,834, and fiscal year 2008 369,221. The number of deportations has been an ongoing source of friction between the Obama Administration and immigrant communities across the country.
4. The continual evolvement of USCIS service centers has been an interesting phenomenon to observe over the years, and in 2012 the agency continued its progress in honing the ability of service centers to adapt and shift to meet the demands of the public. It managed to do this by prioritizing, transferring personnel, and shifting case volume from one center to the next when needed. An example was USCIS announcements in August that I-130 immediate relative standalone petitions would be transferred from service centers to the NBC (National Benefits Center) and routed to an appropriate field office; that the NBC would retain interview waivable family-based adjustment of status cases for adjudication; and that I-90 replacement green card applications previously adjudicated in the Nebraska service center would be adjudicated at the NBC. This flexibility has allowed the agency to reduce and keep processing times for petitions and applications consistent with its goal. The continual shifting of workload does make it imperative for the public to read the current instructions before submitting petitions or applications to ensure a correct sending address.
A large area of improvement for USCIS has been the processing times of administrative appeals at the Administrative Appeals Office (AAO). In February 2012, we unfavorably cited that office's problematic handling of H-1B appeals taking 22 months; L-1 denials 23 months; EB-2 advanced degree professionals 24 months; EB-3 skilled and professional workers 35 months; and I-601 waivers of inadmissibility 26 months. Its latest report of December 1, 2012, showed that the appeals office has largely reduced the amount of time to adjudicate appeals of adverse decisions. According to the processing time chart, the AAO now processes H-1B specialized occupation appeals in 8 months, EB-1C multinational managers or executives in 10 months, EB-3 professional and skilled workers in 21 months, and I-601 waivers of inadmissibility in 11 months. All other categories are current. This is extremely encouraging news for affected parties receiving negative decisions from the agency as many in the past did not appeal because of the long periods of time required to await an appellate decision. With the reduced waiting times, many companies, organizations and individuals are willing to appeal and not be bound by the first decision of the agency.
6. The obtaining of individual taxpayer identification numbers (ITIN) became significantly harder in 2012. ITIN’s are used by many undocumented immigrants to pay taxes on monies earned in the United States. Not eligible for Social Security numbers, ITIN’s issued by the Internal Revenue Service are the best compromise between undocumented immigrants and the US government to allow the payment of taxes while not giving aliens some form of legal status. IRS however promulgated interim rules on June 22, 2012 (finalized in December) which discourage persons from applying. Previously IRS had accepted copies of documents such as passports or other identification documents. Now IRS insists on the sending in of the original passport or other appropriate identification document or a copy certified by the issuing agency (which many consulates and embassies are reluctant to do). In lieu of such, it requires in person submission with the original or issuing agency certified copy before a “trusted party” that can be a participating IRS taxpayer assistance center or certifying acceptance agent (CAA). In the final rule, new ITIN’s will expire after 5 years.
7. EB-5 immigrant investor cases experienced a year of ups and downs beginning with the top broker for a well-known regional center in Vermont discontinuing its association in late February claiming that it no longer had confidence in the accuracy of representations made by the regional center or in the financial status of and disclosures made by its various limited partnerships. Stakeholder meetings, teleconferences, and conversations with U.S.C.I.S. were many, but in 2012 did not yield a long-awaited EB-5 adjudications policy although there were 2 drafts of the policy memorandum. In the meanwhile, adjudications continue ad hoc with denials based on issues that EB-5 practitioners had believed resolved long ago. Despite the problems, EB-5 statistics for fiscal year 2012 showed that I -526 immigrant petitions by alien entrepreneurs were being approved at a 79% clip and I-829 petitions by entrepreneurs to remove the conditions of residence status at a 92% rate. The number of approved I-526 petitions grew from 640 in 2008 to 3700 in the last fiscal year.
8. The Child Status Protection Act (CSPA) had encouraging news on the issue of whether an aged-out child listed as a dependent on the parent’s immigrant petition could assume the priority date of the parent for purposes of immigrating to the US under another category. (Otherwise the son or daughter would typically have to wait another 7-9 years immigrate after the immigrating parent files an I-130 petition under the F-2B category) In September, the Ninth Circuit on rehearing overturned its prior negative decisionto now allow aged-out children the old priority date of the parent if they have aged out and cannot qualify as under 21 when counting under the CSPA. De Osorio v. Mayorkas, 695 F.3d 1003 (9th Cir. 2012). The Ninth Circuit’s decision aligned it with the Fifth Circuit, which had earlier so ruled in Khalid v. Holder, 655 F.3d 363 (5th Cir. 2011). The Second Circuit remains opposed under Li v. Renaud, 654 F.3d 376 (2d Cir. 2011). The result of the circuit split is that relief may be available to aged-out children in the Ninth and Fifth Circuit states of Louisiana, Mississippi, Texas, Alaska, Washington, Montana, Idaho, Oregon, California, Nevada, Arizona, Hawaii, but not the Second Circuit states of Vermont, New York and Connecticut. No other federal circuit courts have taken a stand on the issue, and the split will only be resolved if USCIS drops its opposition or the matter goes before the Supreme Court.
9. The second important Obama Administration initiative on immigration for 2012, the I–601A provisional waiver, is a highly anticipated regulation which USCIS has been promising the public to publish by the end of the calendar year. The expectation was increased by USCIS confirmation of the expected date of publication in a meeting with the American Immigration Lawyers Association (AILA) on October 9, 2012, and in its stakeholders meeting on centralized filing of I-601’s on November 13, 2012. As of the date of this writing, only 4 days remain in 2012. As contained in the proposed rulemaking on March 30, 2012, the I-601A would allow immediate relatives of US citizens (parents, spouses and children) who sneaked into the US or on other types of visas from which they could not adjust status, e.g. D (crewman) or TWOV (transit without visas), and had no other disabilities to file waivers of the 3 or 10 year bars upon return because of their illegal presence in the US. To qualify, applicants must show that extreme hardship would occur to a U.S. citizen spouse or parent if the waiver was denied. Dependent upon whether the waiver was approved, the applicants would then decide whether to continue consular processing their immigrant visa cases with an American embassy or consulate. Under current law, those not eligible for adjustment of status would have to first be refused at the immigrant visa interview before being allowed to submit waiver applications and during the pendency of the applications would have to remain outside the US. We attempted to check on the progress of the provisional waiver last week and were informed by personnel in the USCIS Central Office that the wheels were rolling, that it could be in January, but further information was expected to be posted in the next week on the USCIS website. The USCIS Ombudsman’s office said that the National Visa Center (NVC) was aware that the I-601A was pending, and that people should notify the NVC to keep the cases from being terminated (NVC has a policy of beginning to terminate petitions which have current visa availability on which it has received no responses within a year). USCIS conservatively estimated a ten-year total of 109,775 I-601A applications.
10. President Obama’s reelection in November ranks as a major event for the future that it brings to the pro-immigrant movement. There is now real talk of comprehensive immigration reform by both parties, but only because of the way that he won. Driven by deep-seated fears of an anti-immigrant Republican backlash had Mr. Romney been the winner, Hispanics and American – Asians came out in droves for the President. Exit polls showed that 71% of the Hispanic vote went for Mr. Obama with 27% for Mr. Romney and 73% of Asian Americans voted for the President with only 26% for Mr. Romney. The Republicans now realize that their party’s future hangs in the balance, and that these voting blocs will only become larger in future years. The horizon to the Republican future is now not 4 years, but the next round of congressional elections in 2 years.
The above are 10 of the farthest reaching immigration events of 2012. The list is not comprehensive, but gives us an idea of why we are where we are at the present.