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Carl Shusterman's Immigration Update

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  1. CSPA: Rodriguez Tovar Decision Could Help Keep Families Together

    On February 14, 2018, the US Court of Appeals for the 9th Circuit, in Margarito Rodriguez Tovar v. Jefferson Sessions reinterpreted a section of the Child Status Protection Act (CSPA) in a way which could help keep many immigrant families intact.

    

    The Court overturned a decision by the Board of Immigration Appeals (BIA) that the son of a US citizen father who had waited in line for a green card for many years be forced to leave the US for a decade or more.

    Margarito Rodriguez Tovar was born in Mexico in 1983.

    In 2000, at the age of 17, he entered the US. On April 30, 2001, his father, who was a lawful permanent resident, sponsored him for a green card. In 2005, the USCIS approved the family-based 2A visa petition.


    In 2006, his father became a naturalized US citizen. The child’s 2A priority date (minor, unmarried sons/daughters of lawful permanent residents) became current and, in 2008, he filed for adjustment of status under section 245i.


    The USCIS denied his application on the ground that he had aged-out and that since the family-based 1st preference (adult unmarried sons/daughters of US citizens) priority dates were backlogged to 1992, his priority date would not become current for more than a decade.


    He was placed under removal proceedings where he renewed his application for adjustment of status.

    However, both the Immigration Judge and the BIA denied his application and ordered him to leave the US.


    The IJ and the Board cited the BIA’s published opinion in Matter of Zamora-Molina, 25 I. & N. Dec. 606 (BIA 2011). Zamora-Molina involved a similar fact pattern. The respondent’s LPR mother had originally sponsored her child under the family 2A category, and became naturalized after the child’s 21st birthday. The respondent argued that had the mother not naturalized, he could have utilized CSPA’s “opt-out” provision and used the CSPA age formula to adjust his status under the 2A category. The BIA disagreed and held that since the mother had naturalized, the issue was whether the CSPA age formula applies to “immediate relatives” of US citizens. The section of law in question states that only if the parent naturalizes prior to the child’s turning 21 can the child be considered an immediate relative of a US citizen. The BIA ruled that this referred to the child’s biological age.


    In Rodriguez Tovar, the 3-judge panel disagreed with the holding in Zamora-Molina andunanimously held that it would make no sense for Congress to punish a child simply because his sponsoring parent became a US citizen. They determined that the section of CSPA that refers to immediate relatives should be read to refer to a person’s statutory (CSPA) age rather than to his/her biological age.


    Applying the CSPA formula, Rodriguez Tovar’s age would be under 21 (24 years when his priority date became current on June 1, 2007 minus the 4 years that the I-130 was pending before the USCIS), and he would be eligible to adjust his status to permanent resident as an immediate relative of a US citizen parent.


    The opinion in Rodriguez Tovar succinctly states the rationale for the decision as follows:

    "In sum, the government’s position is that because
    Rodriguez Tovar’s father became a citizen, Rodriguez Tovar
    must now wait decades longer for a visa than if his father had
    remained an LPR. In the meantime the government seeks to
    deport him to Mexico, with any future return subject to
    unforeseeable modifications to the current immigration laws.
    As we explain in the remainder of this opinion, the correct
    interpretation of the statute does not lead to this absurd result,
    but rather to his entitlement to an immediately available visa.

    It remains to be seen whether the government will ask the Supreme Court to review this decision.

    Updated 03-09-2018 at 05:23 PM by CShusterman

  2. March Visa Bulletin: Time For Congress To End The 7% Per-Country Limitation


    The State Department released the March 2018 Visa Bulletin today. As Congress is currently debating immigration policy, this would be a perfect time for Congress to end the outmoded and unfair 7% per-country limitation.


    Employment-Based Categories

    The worldwide employment-based categories all remain current.

    There is considerable movement for persons born in mainland China. The EB-2 category advances by 4 months while EB-3 for professionals and skilled workers moves ahead by 7 months. EB-3 for unskilled workers advances by over 2 months while EB-5 for investors remains frozen.


    The gains are more modest for persons born in India. The EB-2 category advances by 3 weeks while EB-3 moves ahead by 2 months.

    Philippines EB-3 adva
    nces by 2 1/2 months.

    Mexico EB-4 moves forward by 1 month while EB-4 for El Salvador, Guatemala and Honduras remains frozen.



    Family-Based Categories

    The worldwide family-based categories, all of which are backlogged for years, each inch forward by 1 to 6 weeks.

    The family-based categories for Mexico and the Philippines, some of which are backlogged not just years but decades, advance from 1 week to 2 months with the exception of the Mexico 3rd which remains frozen at June 22, 1995, more than 10 years longer than the worldwide category.

    The 4th preference category for India moves forward by 3 weeks to February 1, 2004.



    What Congress Needs to Do


    Millions of people who have been playing by the rules have been waiting in line for green cards, some over 20 years, all because when the law was written over 50 years ago, Congress imposed a severe 7% per-country limitation on the number of persons born in a particular country who are permitted to immigrate to the US annually.



    This outdated system has produced many unfair and undesirable results. Brothers and sisters of US citizens who are born in the Philippines and Mexico are forced not only to have to wait in line for over 20 years to get a green card, but to have to leave their “aged-out” children behind when they do.


    Scientists and computer engineers can get H-1B visas to work in the US irrespective of their countries of birth, but if they happen to be born in China or India, they are forced to wait in line many additional years to obtain green cards. Had they been born in a country like Cuba or Iraq, the process would be relatively quick and straight forward. This is very unfair and outdated, and needs to be changed.


    Since Congress is debating immigration policy this week, this would be a great time to finally fix the outdated 7% per-country limitation. Remove it in the employment-based categories and raise it in the family-based categories.

    Updated 02-12-2018 at 04:05 PM by CShusterman

  3. Dreamers Should Not be Held Hostage to An Ugly Anti-Immigration Agenda

    The clock is ticking for the Dreamers. Last September, President Trump, in response to the threat of a lawsuit by 10 Republican Attorney Generals, announced that DACA would be ended on March 5, 2018. He stated that he would be pleased to sign legislation which would benefit Dreamers, and that 6 months was plenty of time for Congress to pass a bill.


    Since then, this deal has been kicked down the road again and again. The present deadline of February 8 is rapidly approaching and instead of a deal being on the horizon, the President is now demanding that Congress adopt an extreme anti-immigration agenda as the price for helping the Dreamers. He insists that Congress must appropriate $25 billion for a border wall with Mexico and fund the hiring of many thousands of new CBP and ICE officers as well as hundreds of new Immigration Judges and ICE attorneys.

    But that’s only the beginning.

    His biggest demand has nothing to do with DACA or even immigration enforcement. It involves appeasing anti-immigration extremists by dramatically curtailing legal immigration to the US. He wants to reduce the number of green cards granted each year by over 40%.
    What about the millions of relatives of US citizens who have been playing by the rules and have been waiting in line for years or even decades to get green cards?

    Under Trump’s plan, they would be thrown under the bus. Our country would cease to honor its commitment to upholding our immigration laws.

    The President characterizes this plan as a “fair compromise”. In reality, nothing could be further from the truth. There is widespread agreement in Congress and among the American people that a law should be enacted to allow the Dreamers to continue to live and work in the US. However, depriving millions of people who have waited in line for many years of their legal right to reunite with their families in the US, is a cruel imposition which is supported only by a small anti-immigrant fringe in the President’s own party.



    President Trump’s cover for this deceit is that we should have a “merit-based” immigration system, not one based primarily on family relationships. This sounds good. We could abolish the visa lottery and the family-based sibling category and give these visa numbers to the employment-based categories. Yet the legislation that Trump is demanding in exchange for helping the Dreamers would drastically cut family immigration and do also nothing to increase employment-based immigration. Instead, it would simply throw hundreds of thousands of green cards into the trash bin each year.
    What is the “merit” in this?

    His proposal is unworthy of our country and our people, almost all of whom are either immigrants or the descendants of immigrants. We are a country which prides itself on judging people according to their individual merits rather than on the basis of their race, religion or nationality. Yet, the agenda that Trump is supporting is reminiscent of the restrictionist immigration laws of the 1920s which were designed to prevent hundreds of thousands of Catholic and Jewish families from immigrating to the US. Now, the aim is apparently to greatly reduce the number of immigrants from Asia and Latin America.

    The President should be ashamed to hold the Dreamers hostage to such an ugly and un-American piece of legislation.

    Congress should pass, and the President should sign, the DREAM Act, a bill which has been introduced in every Congress since 2001, and not let the Dreamers be held hostage to an extreme anti-immigrant agenda.

    Updated 03-09-2018 at 05:11 PM by CShusterman

  4. DACA is Ending – What You Should Do Now



    On September 5, the Trump Administration announced that DACA which has shielded over 800,000 young people who were brought to the US as children from deportation for the past 5 years was coming to an end.


    The USCIS will no longer accept new applications for DACA or for advance parole travel permits.

    However, for a brief period of time which ends on October 5, 2017, current DACA recipients whose DACA status expires prior to March 5, 2018 may apply to renew their status and EADs for another 2 years. If you fit into this category, be sure to apply for a DACA and EAD renewal immediately.


    Although USCIS will not accept new applications for advance parole from DACA recipients and will return all pending applications for advance parole, if you already have an advance parole through DACA that you have not used and you last entered the US without inspection, you may want to travel abroad and return to the US with your advance parole document. This may allow you to adjust your status in the US in the future. Please see DACA Renewals – Plus DACA To Green Card!.


    In addition, there are a variety of other immigration benefits that you may be eligible for. These are detailed in Screening Potential DACA Requestors for Other Forms of Relief published by the American Immigration Council.


    We link to the various government memos regarding the termination of the program from End of DACA Program – Frequently Asked Questions.


    Will Congress pass a bill to provide DREAMers with a path to US citizenship, or at least to protect them from deportation after March 5, 2018?


    That’s anyone’s guess.


    The DREAM Act was first introduced back in 2001, and has never been passed by Congress. Whether Congress will act to protect the DREAMers in 2017-18 remains to be seen.


    There are currently 4 bills in Congress to help the Dreamers. There has been much speculation as to whether the Democrats and President Trump can make a deal to help the Dreamers the way they did recently on the short term hike in the debt ceiling.


    Several states are suing the Administration over the DACA termination. So is the University of California.


    Religious leaders from many faiths have condemned President Trump's decision to phase out DACA. Representative Luis Gutierrez (D-IL) has threatened to shut down the government if the House of Representatives fails to pass the DREAM Act.


    Some commentators had concluded that there is a racial basis for ending DACA and attempting to restrict immigration to the US.


    I watched Steve Bannon on "60 Minutes" last night. He stated that he was all in favor of ending DACA and that the answer to the problem is for the Dreamers to "self-deport". Outrageous!


    If you are also upset about how the 800,000 young DACA recipients are being treated, this is the time for you to act. Take a few minutes and let the White House and your Members of Congress know that it is important to you that they protect the Dreamers.


    With DACA ending, it is important that we Act Now For Dreamers.

    Updated 09-12-2017 at 12:33 PM by CShusterman

  5. 10 States to Trump: End DACA or We’ll Sue You!

    Although many people see President Trump as the most anti-immigrant President in recent history, to others, he is not anti-immigrant enough.


    In a memo issued on June 15, 2017, DHS Secretary John Kelley rescinded the Obama Administration's memorandum expanding the DACA program and creating the DAPA program for certain parents of US citizens. However, the memo declared that the original DACA program created in 2012 for children who were brought to the US at a young age by their parents “will remain in place”.


    On June 29, the Attorneys General of Texas and 9 other states (Arkansas, Alabama, Idaho, Kansas, Louisiana, Nebraska, South Carolina, Tennessee and West Virginia) sent a letter to US Attorney General Jeff Sessions threatening to bring an action in Federal Court to declare that the DACA program is unconstitutional unless the Department of Homeland Security (DHS) phases out the program.


    [sc name="Review Block" image="/images/photo6.gif" title="Know Their Job Well And Perform It Flawlessly" review="Don’t do the mistake we did and try to save few bucks going with nonprofessionals and sole practitioners! It will end up not only costing you much more in the long run, but also putting your status in jeopardy which can have a priceless impact. It is one of the most important steps in your life." reviewer="- Sgt. Danny Lightfoot, Los Angeles, California"]


    The letter demands that DHS rescind the 2012 memorandum which created DACA, and not renew or issue any DACA permits in the future. If DHS does so by September 5, the letter states that the plaintiffs will voluntarily dismiss their lawsuit.


    However, if the DHS does not do so, the letter states that the complaint challenging DAPA and the expanded DACA program in Texas v. United States will be amended to include the existing DACA program.


    Both the DAPA and expanded DACA programs have been enjoined by the Federal Courts. The Supreme Court has remanded the case to the District Court Judge in Texas to rule on the merits of the case.


    The bottom line is that these 10 Attorney Generals want the DACA program to be abolished thereby making the nearly 800,000 Dreamers who benefit from DACA undocumented aliens once again, subject to deportation.


    How did Attorney General Sessions react to the threatening letter? Was he offended?


    Apparently not.


    On “Fox and Friends”, Sessions stated: “… I like it that our states and localities are holding our federal government to account, expecting us to do what is our responsibility to the state and locals, and that’s to enforce the law.”


    Will President Trump cave in and end the DACA program? If he does, Dreamers will be an easy target for DHS to deport since the government has each of their addresses.


    There are some limited options for certain DACA recipients to apply for green cards before the program is rescinded or struck down by the Supreme Court a couple of years from now.


    But for the majority of DACA recipients, the best post-DACA plan of action may be to change their addresses.


    And is it even remotely possible that Congress would pass a law to protect the Dreamers? Perhaps, but only if they are pressured by their constituents to do so.


    Stay tuned!
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