LEAKED MEMO SHOWS MAYORKAS PUSHING FOR MAJOR IMMIGRATION POLICY CHANGES

This is really major and thanks to reader gg for posting the link.

The headlines are likely to be about the benefits to people out of status. The provisions stated early in the memocould benefit thousands, though I'm not sure it will help the vast majority of people out of status, though many, many would be helped. Mayorkas has "buried the lead" at the end of the memo when he discusses using "deferred enforced departure" to potentially help those who otherwise might qualify for the DREAM Act as well as long time residents (those here since before 1996 are specifically mentioned).

Also, take a look at the legal immigration reforms - work authorization for certain H-4s, expanding the grace periods for non-immigrant visas, dual intent for most major non-immigrant categories, more premium processing categories, automatic extension of employment authorizationd documents when applications to extend are timely filed and issuing two year EADs in more circumstances.

These changes would represent the most significant changes at USCIS (and before that at the INS) in decades.  Hopefully, Mayorkas will get real back up from the White House in order to get these reforms through since it now looks like CIR is not happening.

Incidentally, USCIS has already commented on the memo, which apparently has made it in to the hands of antis on Capitol Hill:

Internal draft memos do not and should not be equated with official action or policy of the Department. We will not comment on notional, pre-decisional memos. As a matter of good government, U.S. Citizenship and Immigration Services (USCIS) will discuss just about every issue that comes within the purview of the immigration system. We continue to maintain that comprehensive bipartisan legislation, coupled with smart, effective enforcement, is the only solution to our nation’s immigration challenges.

Internal memoranda help us do the thinking that leads to important changes; some of them are adopted and others are rejected. Our goal is to implement policies wisely and well to strengthen all aspects of our mission. The choices we have made so far have strengthened both the enforcement and services sides of USCIS — nobody should mistake deliberation and exchange of ideas for final decisions. To be clear, DHS will not grant deferred action or humanitarian parole to the nation’s entire illegal immigrant population.

 

Mayorkas reform memo

Comments

[AJ]

"It takes at least 40 days to prep for a PERM filing. I would not deny that there were a few people who got their applications in, but most likely the employer started the ball rolling on PERM before the announcement."

Of course. These filings would have come in eventually in later months. The July 07 bulletin only made people scramble to get them in that month.

[Legal and no longer waiting]

"Labor certifications were being certified in less than 2 weeks around that time, so yes there were some new filings."

It takes at least 40 days to prep for a PERM filing. I would not deny that there were a few people who got their applications in, but most likely the employer started the ball rolling on PERM before the announcement.

"Another source of filings was due to people substituting using old labor certifications. "

True. The PDs on those would most likely before 2007.

I do agree that it is unlikely there is an increase in applications with PDs in the summer of 2007. Receipt dates, yes. PDs, no.

[AJ]

"DoS actions couldn't have triggered an avalanche of new I-140s because there wasn't enough time to obtain a labor cert. If my reasoning is wrong, I would appreciate it being corrected."

Labor certifications were being certified in less than 2 weeks around that time, so yes there were some new filings. I know for a fact because one of our employees who did not get a H1B through the lottery that year managed to get an EAD by filing for PERM after the bulletin was announced.

Another source of filings was due to people substituting using old labor certifications. Up until 2007, labor certifications used to be valid indefinitely. Since an older labor certification provided access to an earlier filing date and a green card that much sooner, this was leading to some undesirable consequences. To counter this, the DOL had implemented a new policy where old labor certifications that were used for substitute beneficiaries would expire on July 16 2007. Ordinarily, most of these labor certifications would have expired unused as there would have been minimal benefit to filing a new I140 and I485 based on these certs. But because the July bulletin offered a chance at instant work authorization, a lot of I140s were filed based on these older certs. This type of application however would not cause a bottleneck around Aug 07 since the filing date assigned to the application would be the one when the original labor certification was filed.

[USC]

LFWF:

Thank you for your post. Also I am glad that you are actively involved with IV. We need more such organizations.

[LFWF]

USC:

I'll keep it to facts given the kind of prejudice thrown around recently :-)

You are largely correct. There was no bump on new filings of the kind that people think due to 7/07. However, there was some bump because a large number of EB2 NIW filings (no labor needed) took place in order to take advantage of the ability to file AOS. I remember discussing the size of this filing with Greg back during the IV rally in 9/07 (there, i said the dreaded words, and yes I know we are "not on IV") so perhaps he can shed light on this. Overall given that EB2NIW is a small part of the total, it should not be too bad.

I may not know "everything" but long years in this battle have taught me a few facts. One of those is that we sink and swim together, nurses or any other group are not special :-)

[USC]

"So we will see if the current trend holds steady for sometime till we hit the roadblock of Aug 2007 Visa Gate fiasco."

I think things are better than you think. I do not think that the Visa party of August 2007 resulted in any additional filings.

Here is my rationale, given that folks can no longer hold onto Labor Certs and have had to file them with INS more or less on receipt, those that had them in hand were going to file their I-140 regardless of whether or not the PD was current.

Those that had not yet received them couldn't file their I-140s. Given that the August bulletin was only current for 1 month there wasn't sufficent time to rush through a labor cert (even though I believe PERM has significantly cut down the time to obtain one) and be able to take advantage of the August bulletin.

As a result of the August bulletin, folks who had a pending I-140 were able to to receive EAD/AP. DoS actions couldn't have triggered an avalanche of new I-140s because there wasn't enough time to obtain a labor cert. If my reasoning is wrong, I would appreciate it being corrected.

[Jim]

"You may wish to go back to what you have said about July 2007 in the past if you need context. And you have already read the fundamental error in your current argument. A humble unsolicited suggestion....ignore opinions by all means, it often does good. But ignore facts? That makes for a poor discussion."

Not defensive ha !? Blowing things out of proportion!? I wonder who's doing that? I gave what I thought was an innocent post and you and Sid went berserk!!

Ignoring facts!? I have repeatedly admitted mistakes and even bowed out to some just to avoid arguments. You keep bringing up my so-called "mistake" in my previous posts when I have conceded it already and the last one even thanking someone for pointing it out. Geez.

So you think you know everything? And everything you say are correct? PLEASE....

Let some readers here post freely w/o thinking about not hurting what members in another site or what they might think of if I said not to their liking. WE ARE NOT IN IV !! That is why I am posting here and not there in the first place.

And what's your point bringing up Greg being a member of the national advisory board of IV? Is that suppose to mean something to me (not disrespecting Mr. Siskind here - that's the last thing I would do as I am just a guest on his site) ?

And please let us simple readers here make mistakes and wrong presumptions too. We are not perfect just like you. Geez.

[LFWF]

uh Jim?

Defensive? Maybe you should re read your post in that context?
You are quite mistaken that my statement had anything whatsoever with you reading IV and all the rest of your little rant. your reply, amusing and entertaining as it is, makes some weird presumptions. I have read YOUR posts here for a long time and my response to you was based ONLY on what YOU have posted in the past. Anything IV does or not, or I do or not for IV had no relation to it. The only reason IV was mentioned is because YOU specifically chose to bring it up. Please don't presume. It makes for better discussion.
You may wish to go back to what you have said about July 2007 in the past if you need context. And you have already read the fundamental error in your current argument. A humble unsolicited suggestion....ignore opinions by all means, it often does good. But ignore facts? That makes for a poor discussion. To put it in a nutshell, USCIS did not repeatedly interpret and reinterpret the spillover. For all time past they had ONE interpretation. They erroneously and briefly changed it, and when this was brought to their attention they simply reverted to the time tested original rule. This does not support your arguments unfortunately. Please re read Sid's post. It is a factual statement that does not mention any forum.

These are my last words too, I felt it was important though to point out that no one mentioned IV (is that a crime?, do you know Greg is on the national advisory board for IV?)until YOU made some presumptions and brought it up. This discussion has blown out of proportion. If you don't wish to discuss IV (though you could hardly object if others do) feel free NOT to bring it up and to ignore others if they do.

[Jim]

"You tend to ignore them when it comes to July 07, despite the fallacies in you logic being pointed out. Now you want to ignore this. The spillover was ALWAYS vertical. There is a reason they are called "PREFERENCE" categories. Read the INA, it is also abundantly clear. The arbitrary decision by USCIS in 2006 (?) to change the order was the problem. It was corrected back to the original after consultation with Congress. Exactly how is the vertical spillover the problem? It has always been the rule. If anything you should question why the interpretation was abruptly changed in 2006 without which there would have been no issue to discuss. I don't say this to be anti EB3 or any such nonsense. My personal views on the solution to the problem have little to do with spillover distribution. But ignoring reality does not help."

My post was not about EB3 versus EB2 and everything you just posted. You and Sid are obviously IV members. PLEASE stop replying with my posts as if I am IV member too or reads what's in IV.

I just mentioned the recent change in spillover as an innocent example, in-accurate it may seem to prove my point that USCIS interprets and re-interprets things all the time. Nothing more, nothing less.

For some reason the two of you are overly defensive. My guess is the two of you thinks some of my posts are hitting what IV does or what IV members discuss on their site. IT DOESN'T. Whatever it is, it was purely incidental. It obviously hit a nerve from the two of you.

If you guys just stop and take a breath, you'll notice that we are not in IV and most of the readers here are probably not IV members as well nor even reads that site.

This will prevent you guys from being overly defensive or presuming things for no reason at all.

This will be my last post regarding this. My apologies in advance for this little rant.

[Jim]

"One more thing Jim, this is a waste of space, breath and initiative on IV too. I have done enough active advocacy, and with IV too, to know that this is not something IV is in a position tp influence. Better that efforts be focused on recapture and other measures that will bring broad based relief."

That's precisely the reason why I said I do not care for the rest he said is because I really don't want to hear what IV members have to say. We are in a diff. site and I hope people from IV stop replying as if readers here reads IV too or cares the issues revolving there so that members or readers here don't get confused.

[Jim]

"Ignoring facts is not helpful."

I am not ignoring facts. In fact, I even thanked Sid for pointing it out, didn't I??

I was just pointing out that USCIS interprets and re-interprets things all the time w/c was my only point. Any example I gave, as imperfect it may seem is only to prove a point.

And the statement I gave about people not liking the new results and the dbl std comment has nothing to do with what IV members says. It was for the antis.

[Tundra/Desert]

This is the same USCIS that Nina Bernstein chronicled questioning perfectly valid marriages and business enterprises. The draft comes from the same Neufield whose January memo killed our perfectly fine business; the reviewer boilerplatedly stated that the owner and the business were the same thing and denied his H1B extension---whereas, in fact, we had other employees (USC and GC), and $$$$$$ in sales. The owner since left.

I'm sorry, I don't believe this USICS will act to help anyone.

[USC]

"aw shucks USC, c'mon now, Francis may well be a good white southerner, entitled and everything :-)"

Precisely. He would be the child of illegal ancestors and he would be a great-grand anchor baby. Either we need to return him to his ilk be it Ireland or China. LOL!

[LFWF]

One more thing Jim, this is a waste of space, breath and initiative on IV too. I have done enough active advocacy, and with IV too, to know that this is not something IV is in a position tp influence. Better that efforts be focused on recapture and other measures that will bring broad based relief.

[LFWF]

aw shucks USC, c'mon now, Francis may well be a good white southerner, entitled and everything :-)

[LFWF]

"With due respect I really don't care about the rest you said"

Ignoring facts is not helpful. You tend to ignore them when it comes to July 07, despite the fallacies in you logic being pointed out. Now you want to ignore this. The spillover was ALWAYS vertical. There is a reason they are called "PREFERENCE" categories. Read the INA, it is also abundantly clear. The arbitrary decision by USCIS in 2006 (?) to change the order was the problem. It was corrected back to the original after consultation with Congress. Exactly how is the vertical spillover the problem? It has always been the rule. If anything you should question why the interpretation was abruptly changed in 2006 without which there would have been no issue to discuss. I don't say this to be anti EB3 or any such nonsense. My personal views on the solution to the problem have little to do with spillover distribution. But ignoring reality does not help.

[USC]

"these people"

Them, these people, those people. If we were on the $20,000 people the answer would be something a racist would say.

If you can't embrace the diversity that the nation of immigrants represents instead of telling people to go back where they came from, why don't you go back to where you came from. You do not belong here.

[Jim]

"Jim, you're wrong about two things. The spillover used to be vertical followed by horizontal and has been reversed now.
The USCIS consulted the Congress before changing the spillover rules. It was not a unilateral decision. The law is ambiguous about this but the Congress interpreted that preference categories have been created for a reason. Obviously it hurts EB3 now just as it hurt EB2 till 2007."

Vertical first, then horizontal then back again? Thanks for pointing that out but that just proves my point further.

With due respect I really don't care about the rest you said. That's not my point. That's only topics for IV.

[S]

"The outcome could cause outburst or violence and civil unrest."

Yes , you guys did same thing with civil rights marchers in 20th century.

Mr. President , this immigration issue is civil rights issue of 21st century. Do the right thing.

[Sid]

"The most current example I know is them re-interpreting how EB un-used visas gets distributed. For all these YEARS it was done horizontally and then just a couple of years ago they changed it to vertical."

Jim, you're wrong about two things. The spillover used to be vertical followed by horizontal and has been reversed now.
The USCIS consulted the Congress before changing the spillover rules. It was not a unilateral decision. The law is ambiguous about this but the Congress interpreted that preference categories have been created for a reason. Obviously it hurts EB3 now just as it hurt EB2 till 2007.

[Francis]

Just the rumor of--DE FACTO AMNESTY FROM WASHINGTON---filtering by word of mouth across Mexico, Latin America and the rest of the world--could have desperate, impoverished millions suddenly materializing along the border, ready to run the gauntlet? If you think this couldn't happen, you better read about the 1986--AMNESTY?

Our government doesn't seem to understand, taxpayers do not want to subsidize illegal immigrants anymore with health care, education and imprisonment on a federal level. One of the major issues are these are unfunded mandates, that fall squarely on Americans who pay for it all. The businesses that hire illegal aliens pay nothing towards these free benefits. As far as I'm concerned I trust (FAIRS) figures of the expenditures of $113 billion dollars a year, with an additional $60 billion in illegal labor money in remittances, money transferred out the country. The fact that any unilateral AMNESTY, means those illegal households will get credit for all the years they have worked illegally, would be a major problem for US citizens and legal residence in Social Security, pensions.

If the administration forced through an executive order for these people to get a free authorization to stay, the American people would rise up in process to this travesty. The outcome could cause outburst or violence and civil unrest. Our only chance to stop any more power grabs is to remove all Incumbents. Throw out Sen. Harry Reid, (D-NV) in November.

[My 2 cents]

"It would be a mean thing to say, but i really wish for this act to go all the way."

If SB 1070 comes to the SCOTUS (if AZ decides to take it that far), it might be upheld before Elena Kagan joins the bench at SC.

[Jim]

Nice article: http://www.propublica.org/article/obama-administration-considers-bypassing-congress-on-immigration-reform

If there's nothing illegal about it - I say, just do it!!

USCIS has a history of interpreting and then re-interpreting the current laws specially those with ambiguous language. The most current example I know is them re-interpreting how EB un-used visas gets distributed. For all these YEARS it was done horizontally and then just a couple of years ago they changed it to vertical.

So, why not this can't be done with this? Just because some people do not want the new results? No, double standard please.

[Jim]

"It would be a mean thing to say, but i really wish for this act to go all the way, just because i would like everyone in this country see the economic meltdown AZ would face, and then understand the ramification of "send all illegals home". Economically it would be a nightmare, people really need to see it first hand to realize its ramifications."

You have a very good point.

[KR]

It would be a mean thing to say, but i really wish for this act to go all the way, just because i would like everyone in this country see the economic meltdown AZ would face, and then understand the ramification of "send all illegals home". Economically it would be a nightmare, people really need to see it first hand to realize its ramifications.

[George Chell]

"Sheriff Joe arrests Indian immigrant & Constitution Rights lawyer"

He probably thought that she was Hispanic!

[USC]

This Greg/gg story is now being carried by the Associated Press:

http://news.yahoo.com/s/ap/20100730/ap_on_go_pr_wh/us_immigration_skirting_congress

[Adi]

"A time-honored tradition since the civil rights era, legal observers serve as impartial witnesses who help ensure that law enforcement officials do not infringe upon the rights of demonstrators and activists who engage in civil disobedience."

Apparently they make their own laws and do not want any witnesses. This is really getting out of hand. President needs to do something to stop this madness. I hope law enforcement people do not start shooting people.

[USC]

Sheriff Joe arrests Indian immigrant & Constitution Rights lawyer:

http://curate.tumblr.com/post/877179589/phoenix-ariz-sunita-patel-an-attorney-with

http://detentionwatchnetwork.wordpress.com/

[Sid]

These days USCIS is arbitrarily giving out 1 or 2 year EADs. If they are underfunded why don't they raise the renewal fees instead of resorting to such cheap tactics?

I hope the recommendations about EAD renewals are implemented.

[Greg Siskind]

National Review, which published the memo, is the place anti-immigrant Mark Krikorian blogs. Can't say if there is a connection, but NR is certainly not known for its pro-immigration views.

[Greg Siskind]

Adi - No. H-1Bs can be extended based on AC21 when a green card number is not available or a case has been pending awhile. H-4s are not entitled to work on that basis, however. So this is new.

[S]

As far as I understand , there is nothing in this memo that helps people who filed 485 but waiting for the dates become current.

They shouuld consider issuing of EAD/AP for 10 years instead of 2/1 year.

I think administration will try to use this tool after elections to blame republicans for not acting on immigration(if Rs are in majority) or after failure of an immigration bill if Dems are in majority. The above scenario is likely only if Mr.Change has courage to act on immigration with or without congressional action.

[JoeF]

"Don't H4s automatically get EAD for people with EAD and AC 21?"

Not necessarily.
There are lots of people who have an I-485 pending and then marry, and the spouse can not file an I-485 because the PD isn't current.

[Adi]

Don't H4s automatically get EAD for people with EAD and AC 21? What is this additional facility?

[S]

"There are certain things that are spelled out very clearly in the laws, and there are some that are ambiguos. The USCIS is trying to take advantage of ambiguity to help people. However, I am concerned about the leak, and what was the goal of the person who leaked it. It is known that not everyone in the CIS is pro-immigrant."

What I read somewhere is that FAIR activists have infiltrated USCIS at every level.

[Legal and no longer waiting]

There are certain things that are spelled out very clearly in the laws, and there are some that are ambiguos. The USCIS is trying to take advantage of ambiguity to help people. However, I am concerned about the leak, and what was the goal of the person who leaked it. It is known that not everyone in the CIS is pro-immigrant.

[USC]

"Mayorkas has "buried the lead" at the end of the memo"

I am unsure what you are referring to but there is a Page 11 on your link and the docstoc store only has 10 pages. Those readers reading the docstoc are only seeing 10 pages. Page 11 is present at the link furnished by Greg.

Great post!

[George Chell]

The ultimate turncoat...I am pretty convinced that he will come after legals if illegal immigration problem is ever solved!

http://www.politico.com/news/stories/0710/40441.html

[eugene]

F1 dual intent is really smart. I have I140 and cannot go back to school on F1 since I have immigrant intent. I hope they implement this one soon.

[waiting in line for years, when will i get there?]

Here is what I dont understand, USCIS and Obama Administration is trying to bypass Congress to give LEGAL STATUS to those are out of status or (antis call it AMNESTY), for this I applaud them for this brave move (if it holds true), but How can this be achieved without Congress? whereas for EB relief it has to go through Congress. I am starting to hate "bureaucracy" !

[Greg Siskind]

Adi - Unfortunately, no. Only Congress could do that.

[Adi]

Greg,

Can USCIS make all categories current for EB and give some relief for people in employment line?

[Greg Siskind]

SG - There is nothing in there about people moving ahead in the line. Everyone who gets green cards will have filed regular petitions. Anyone without status who is not otherwise eligible for a green card is not getting a green card. They might get relief from being deported and maybe the ability to work legally, but certainly not a green card.

[SG]

This is not fair if illegals get GC's before legals waiting in line for the last 10 years.

[Greg Siskind]

My 2 cents - Note that USCIS is limited in the actions they can take since some things - like the EB quotas - are governed by statute and can only be changed by congress.

[S]

Obama admin is too timid to do anything. I will not count on this guy to do what is being proposed in this Memo. It takes a Bush to do these things ... Republicans get power and they deliver to their base...

[My 2 cents]

Would any of this help with the EB backlog, I think it will most likely make it worse. Unless they do something about recapture and/or increasing country quota there won't be any movement. By the way Carl Shusterman is predicting a significant movement in the September visa bulletin. So we will see if the current trend holds steady for sometime till we hit the roadblock of Aug 2007 Visa Gate fiasco.

[Susan I. Nelson]

This is great stuff. Thanks for posting it.