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Greg Siskind on Immigration Law and Policy

THE CULTURE OF NO

Rating: 3 votes, 5.00 average.

There are so many aspects to our dysfunctional immigration system that it's hard to think where to begin. The massive visa queues, the lack of consistency in decision making, 1980s technology? But this story from the Seattle Times just made me angry. A University of Idaho researcher from Poland who is working on bioterrorism defenses is facing deportation because of too much glare in the eyeglasses on her green card application photos. I kid you not.



There are a lot of adjudicators at USCIS who are very reasonable and who will try and be flexible in terms of allowing for minor errors to be corrected. These are good people who understand that people's lives can be shattered by virtue of a click of the adjudicator's mouse. And then there are adjudicators that are still either living in fear of approving the one case that turns out to be another 9/11 hijacker and refuse to show any sense of reasonableness. Or they are just mean spirited and don't care about the impact of their refusal to show some mercy.



The stakes for violations of this sort just got higher. Last week, USCIS amended its Adjudicators Field Manual to state that unauthorized work that occurs AFTER an adjustment application is pending (such as a day of work in between the expiration date of a non-immigrant work visa I-94 and the start date on an employment card) will be enough to trigger the denial of an adjustment application and possible deportation.



That's a complete reversal of decades of policy and there is really no good policy reason for this, in my humble opinion. Aside from creating jobs for USCIS employees, I don't believe there is any serious justification for having an employment authorization document. Why not just make employment authorization incident to the filing of an adjustment application? EAD applications are granted to all that apply (except, apparently, for those with too much glare in their glasses) so it is not like there is some great hurdle that must be overcome to get the card. Still, one must typically wait 90 days to get the document in the mail and often they cannot earn a living during that time. In some cases, applicants can lose their job because their employers are unable to wait on USCIS for the card.



How would making employment authorization incident to status work? Basically, one would simply be authorized to work by virtue of having properly filed an adjustment of status application. Proof of employment authorization would simply be the receipt for the adjustment application. The receipt would be a List C document for I-9 employment verification purposes and would instruct the employer that the document is evidence of employment authorization. This seemingly small change would save hundreds of millions of dollars and be tremendously convenient for all concerned. And we could avoid ridiculous cases like that of the Idaho researcher.

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Comments

  1. Legal and no longer waiting's Avatar
    Greg, EADs are the #1 money maker for the USCIS (and APs are in the top 5, too) - are you really suggesting the USCIS kills the golden goose? Not in our lifetime...
  2. LPR's Avatar
    Could you please elaborate on what you said in your blog:
    "USCIS amended its Adjudicators Field Manual to state that unauthorized work that occurs AFTER an adjustment application is pending will be enough to trigger the denial of an adjustment application and possible deportation."

    Did you mean the Neufeld 245(k) memo (Date: July 14, 2008). Any additional details would be greatly appreciated. Is there a 180 day "grace period" or just one day of unauthorized work would be enough to trigger denial and deportation? Thank you.
  3. Greg SIskind's Avatar
    I am talking about the 245(k) memo. Two things are worrisome. First, if one is not maintaining an underlying non-immigrant status and the adjustment is denied, then the person is not considered to be maintaining status for purposes of 245(k) during the time when the adjustment was pending. So perhaps the adjustment is denied on technical grounds and the person wants to refile. They would not be able to if the adjustment was pending more than 180 days after the underlying status expired. And the second slam is the unauthorized work addition to the memo. A single minute of unauthorized work could cause the adjustment to be denied and then the person could be barred from refiling the adjustment and face a ten year bar on top of that. This is extremely harsh.
  4. hmm's Avatar
    LNLW: for those who applied after fees went up, EAD is free. So it IS happening in our lifetime.

    Greg: the story just shows the old truth that with immigration laws you do not trust anybody (alas including some attorneys), double check everything and keep yourself informed, and your fingers crossed. And surely, one should not trust Human Resources personal who are often totally incompetent. It is unbelievably hard to hire a competent university immigration consultant; they are rare and endangered species because apparently it pays so much better elsewhere.



  5. hmm's Avatar
    Greg, could you clarify the following? If someone is working on a valid EAD received based on pending AOS application, and the application is denied on technical grounds, I would assume that the person should stop working, and the time spend on EAD counts as LEGAL. You seem to suggest that it does not. Thanks!
  6. Greg SIskind's Avatar
    The work would not be illegal and the time on the adjustment would not be time considered out of status. But the person could still be barred from taking advantage of 245(k) because time spent on a pending adjustment application does not stop the 180 day clock.

    I really suggest folks discuss this issue with their immigration lawyers. My goal is to raise some awareness here that this is potentially an issue for many people and it would be prudent for people potentially facing these issues to discuss with their counsel.
  7. Grace's Avatar
    That story made me angry, as well as sent a shiver down my spine. We already are dealing with a behemoth of a bureacracy, where errors are common - i.e. RFEs asking for documents previously submitted, misreading of requirements on certified labor certs, requesting an educational evaluation for a Master's degree from Rutgers (yes, it really happened), and now they are going to punish someone for this. The restrictive reading of 245(k) means that we have to maintain status - which adds to costs and fees for clients - and we have to police clients to make sure that they do not work without authorization after the AOS is filed. While that's easy enough when you represent the principal applicant and his employer, it's hard to monitor that for any dependents, who may not keep the attorney informed of employment, and may not bother to keep their EAD valid at all times. What a mess!
  8. Legal and no longer waiting's Avatar
    "for those who applied after fees went up, EAD is free."

    EADs are not just for AOS cases. There are many immigrant categories beside AOS that need to maintain EADs. Again, sorry for letting you know you are not the center of the universe, and there are people different from you who also need some respect and compassion.
  9. Sid's Avatar
    "EADs are not just for AOS cases. There are many immigrant categories beside AOS that need to maintain EADs. Again, sorry for letting you know you are not the center of the universe, and there are people different from you who also need some respect and compassion."

    True, but Greg was specifically talking about the need to do away with EADs for AOS applicants.

    "How would making employment authorization incident to status work? Basically, one would simply be authorized to work by virtue of having properly filed an adjustment of status application. Proof of employment authorization would simply be the receipt for the adjustment application."
  10. Legal and no longer waiting's Avatar
    Sid, exactly the same reasoning applies to other categories. Why should someone on L2 visa keep applying for EAD? Maintaining L2 should be enough.
  11. Greg SIskind's Avatar
    Thanks Sid. That's exactly right. Not all F-1s are entitled to work, for example, but all AOS applicants are entitled to get employment authorization. That's a key difference. I'd like someone to weigh in and explain why we need EADs and Advance Parole documents at all in adjustment cases.
  12. hmm's Avatar
    "Again, sorry for letting you know you are not the center of the universe, and there are people different from you who also need some respect and compassion."

    LNLW, what was this for? I've been on F/J/H/AOS, you pick. My close friends are on L, another is on Schedule A, another is out of status, another have been through marriage fraud, another got stuck with 212(e). I have seen it all, well, most of it.

    The sad truth is you hate when someone proves you factually wrong, and you tend to fight back. No need. If it matters to you, fine, you win...
  13. Legal and no longer waiting's Avatar
    " I've been on F/J/H/AOS, you pick. My close friends are on L, another is on Schedule A, another is out of status, another have been through marriage fraud, another got stuck with 212(e). I have seen it all, well, most of it."

    Not even close. I would say, that's about 15% of immigration world, and probably the easier 15% of it (yes, believe it or not).

    You never proved me wrong - EADs are #1 money maker, and they did not get there only because of AOS. And if you say that there is no fee now for EADs for AOS applicants, it does not mean that the applicants are not charged for EADs, because all they have done is forced the fees on everyone who applies for AOS. If they had to follow Greg's idea and not require EADs, they would have to lower the fees.
  14. hmm's Avatar
    "Not even close. I would say, that's about 15% of immigration world, and probably the easier 15% of it (yes, believe it or not)."

    LNLW, don't know how you count. I did include those out of status. Say, there are 10M of them. Are you saying this country has > 150M immigrants? Ooops.

    As for who has the easiest immigration process, the majority of legal immigrants are spouses and adopted children who go fast and easy route. Other family based immigrants face long waits in their home country, then they come with green card in hand. Same for refugees. Does not seem hard to me, sorry. Did I mention that I know refugees too? Lots of them. Their immigration is fairly easy. Life is hard for asylee, yes... about half of them are sent back, as I recall. I personally know those too as well. So what major category did I miss?
  15. George Chell's Avatar
    The case clearly shows that we Americans are morons!
  16. lfwf's Avatar
    Greg,

    I thought the memo states that the only actions that count are after the "last entry", so a new entry into the US is a completely fresh start?
  17. Abraham's Avatar
    Hi,my name is Abraham from Indonesia. I'd like to have a several question for u. Because I've CCU(Cross Cultural Understanding) class's assignment.

    Have you ever had a culture adjustment in your living place? Can you accept the cultural changing in there? How did they(the people)accept you? Is any requirement to become one society with them?

    Thanks for your help. I appreciate if you reply my comment.
  18. 's Avatar
    "There are a lot of adjudicators at USCIS who are very reasonable and who will try and be flexible in terms of allowing for minor errors to be corrected....And then there are adjudicators that...refuse to show any sense of reasonableness. Or they are just mean spirited and don't care about the impact of their refusal to show some mercy."

    Your post makes it seem like the adjudicator in this case arbitrarily decided to apply the law in a case where they had the discretion to look the other way. Not so. There is no "additional" discretion in the application 245(k), especially since it already "forgives" 180 days of status violations, unlawful presence, and/or unauthorized employment. Working for more than six months on an expired EAD does not seem like an innocent oversight on the part of the applicant.

    "...unauthorized work that occurs AFTER an adjustment application is pending (such as a day of work in between the expiration date of a non-immigrant work visa I-94 and the start date on an employment card) will be enough to trigger the denial of an adjustment application and possible deportation."

    Try this instead: "such as 180 days of work in between the expiration date..."

    "Aside from creating jobs for USCIS employees, I don't believe there is any serious justification for having an employment authorization document."

    I seriously doubt EADs "create" jobs.

    "Why not just make employment authorization incident to the filing of an adjustment application?"

    Not every person pending AOS needs to work.

    "EAD applications are granted to all that apply..."
    Not true.

    "Proof of employment authorization would simply be the receipt for the adjustment application. The receipt would be a List C document for I-9 employment verification purposes and would instruct the employer that the document is evidence of employment authorization."

    There are probably several security checks that occur between filing and before an EAD is issued. The method you suggest would probably bypass those checks. And if you're thinking "just hold the receipt until the checks are complete," then you're back at square one because CIS is essentially reviewing this new version of "work permit" again--this time before even deciding to accept the filing.

    "This seemingly small change would save hundreds of millions of dollars and be tremendously convenient for all concerned."

    Doubtful that it would save that much money at all.

    "And we could avoid ridiculous cases like that of the Idaho researcher."

    Maybe the researcher became too complacent.
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