Six Republicans Ask for Immigration Views of DHS Nominee

Posted on by Ruby Powers in Immigration Law Leave a comment
Six Republicans want immigration views of DHS nominee Jeh Johnson
By: Seung Min Kim
November 18, 2013 05:50 PM EST
Six key Senate Republicans are demanding more information about Department of Homeland Security nominee Jeh Johnson and his views on immigration, arguing that they need to know more before they confirm him.

The letter from six Senate Judiciary Committee Republicans outlines 29 questions — many of them with multiple parts — asking for Johnson’s perspectives on a wide array of immigration issues.

President Barack Obama’s nominee to lead DHS is a former lawyer for the Pentagon, and his views on immigration are little known. At his confirmation hearing last week, Johnson said he backs “common-sense immigration reform” which would include a “clear path to earned citizenship” for undocumented immigrants, but the GOP senators are clearly eager to know more.

(Also on POLITICO: DHS nominee likely to clear hurdles)

“Our committee has primary responsibility over immigration matters, and we believe it necessary to know any nominee’s position on immigration policies before we can consent to the confirmation of a Secretary to head this very critical department,” the senators wrote in theletter, obtained by POLITICO from a Republican source.

Senate Homeland Security and Governmental Affairs Committee Chairman Tom Carper (D-Del.), whose panel is overseeing Johnson’s nomination, said Monday that he hopes to hold a vote on the confirmation on Wednesday.

Most of the questions focus directly on Johnson’s views of immigration, such as what types of immigrants living in the country illegally should be eligible for immigration benefits, such as legal status. It also asks Johnson whether — if he is confirmed — he will continue an Obama administrative directive that defers deportations for certain young undocumented immigrants.

(Also on POLITICO: Senate panel to consider DHS nomination)

Others deal with general oversight issues at DHS, and ask Johnson to pledge to work with Congress on those issues.

The letter was signed by six Judiciary panel Republicans — Sens. Chuck Grassley of Iowa, Jeff Sessions of Alabama, John Cornyn of Texas, Ted Cruz of Texas, Mike Lee of Utah and Orrin Hatch of Utah. All except for Hatch voted against the Gang of Eight immigration bill that cleared the committee in May and passed the full chamber in June.

The two Republicans who did not sign the letter are Lindsey Graham of South Carolina and Jeff Flake of Arizona, who as members of the Gang of Eight co-wrote the bill. The letter was first reported on by the Daily Caller.

Another Senate Republican, John McCain of Arizona, has placed a hold on Johnson’s nomination until the DHS nominee releases more information about border security and how to boost control of the U.S.-Mexico boundary.

© 2013 POLITICO LLC

Immigrants Closely Tied to Military Get Reprieve

Posted on by Ruby Powers in Immigration Law Leave a comment

By: Julia Preston

The Obama administration issued a new policy on Friday that will allow immigrants in the United States illegally who are close relatives of active military troops and veterans to stay and move toward becoming permanent residents.

The long-awaited memorandum, coming after three years of deliberations by Department of Homeland Security officials, was an effort to untangle knots in immigration law that left many soldiers worried that their immigrant family members could be deported while they were deployed.

The administration applied the policy broadly, extending it to all active-duty members of the armed forces, to reservists including the National Guard, and to all veterans. Their spouses, children and parents will be eligible for a “parole in place,” a term that means they will be authorized to remain in the United States and many can proceed with applications for legal residency.

“This is an enormous step forward for military families and military readiness,” said Margaret D. Stock, a lawyer at Cascadia Cross-Border Law in Anchorage, who is a retired Army Reserve lieutenant colonel. “These problems had been a complete nightmare for many military people to deal with.”

The shift comes as legislation to grant legal status to millions of illegal immigrants has stalled in Congress, with Republican leaders in the House saying this week that they would not hold immigration votes this year or enter negotiations over a broad bill that the Senate passed in June. Obama administration officials said the new rules were based on existing statutes, and did not create any new legal status that would require action by Congress.

“In order to reduce the uncertainty our active-duty and retired military personnel face because of the immigration status of their family members, we have decided to clarify existing policies,” said Peter Boogaard, a spokesman for the Department of Homeland Security.

Immigrants without papers generally have to leave the country to collect visas they applied for through marriage to an American citizen or some other family tie. But, in a notorious Catch-22, once those immigrants leave they are barred from returning for years. Under the new policy, those immigrants who are in military families will not have to leave to complete their visa applications.

Faced with the legal quandary, many service members chose not to apply for papers for immigrant spouses and relatives, often keeping their immigration status secret. As a result, there is no way of knowing how many immigrants will be affected by the new policy, but it could be tens of thousands.

Immigrants involved will have work permits and will have to renew their documents yearly.

Several Hispanic organizations, including the League of United Latin American Citizens, hailed the policy, noting that many Hispanics serve in the armed forces. In addition to American citizens, permanent residents and some other legal immigrants are eligible to serve in the military.

But many immigrant groups immediately called on President Obama to extend the reprieve to more foreigners here illegally.

“The administration’s action clearly shows that the president can use his power to stop the pain in our communities and grant relief to our families,” said Cristina Jimenez, managing director of United We Dream, a youth organization.


John Boehner: House GOP Still Figuring Out ‘How We’re Going To Move Ahead’ On Immigration

Posted on by Ruby Powers in Immigration Law Leave a comment

WASHINGTON — House Speaker John Boehner (R-Ohio) insisted on Wednesday that even though House Republicans have moved slowly on immigration reform, they’re still planning to work on it — but not by combining their efforts with the already-passed Senate bill.

“The idea that we’re going to take up a 1,300-page bill that no one had ever read, which is what the Senate did, is not going to happen in the House,” Boehner said at a press conference. “And frankly, I’ll make clear: We have no intention of ever going to conference on the Senate bill.”

The bipartisan Senate bill passed in June in a 68-32 vote, but was immediately shot down by Boehner, who said he would not hold a vote on anything without majority GOP support. But that was months ago, and long after House Republicans leaders committed to working on immigration reform this year. Bills approved by the House Judiciary Committee, which deals with immigration issues, haven’t gone for votes, either.

Democrats and advocates argue that the Senate bill could pass if it went for a vote — most Democratic members and three GOP members support a bill based on the legislation — but so far, it doesn’t seem likely that the measure will get the chance.

GOP Majority Whip Kevin McCarthy (R-Calif.) told reform advocates last week that there is no time to hold votes on immigration this year. Boehner said Judiciary Committee Chairman Bob Goodlatte (R-Va.) is working with Republicans and Democrats “on a set of principles that will help guide us as we deal with this issue.” Boehner did not, however, give a straight answer when asked whether there would be votes this year.

“As we develop the principles, we’ll figure out how we’re going to move ahead,” he said.

Asked whether House Republicans are moving slowly on immigration reform because they want to focus on Obamacare, Boehner insisted that was not the strategy.

“This is about trying to do this in a way that the American people and our members can absorb,” he said. “There are hundreds of issues involved in dealing with immigration reform. And we’ve got to deal with these in a common-sense way, where our members understand what we’re doing and their constituents understand.”

Boehner said he is still committed to working on immigration reform.

“Let’s understand something: I want us to deal with this issue,” he said. “But I want to deal with it in a common-sense, step-by-step way.”

Young immigration reform advocates approached Boehner earlier Wednesday as he was eating breakfast to tell their families’ stories and ask whether he plans to act on immigration.

“I’m trying to find some way to get this thing done,” he said, according to video the group posted to YouTube. “But it’s not easy — not going to be an easy path forward. But I’ve made it clear since the day after the election that it’s time to get this done.”

Democrats criticized House Republicans at a hearing on Wednesday for saying they want to work on immigration reform but declining to hold votes.

“If House Republicans oppose comprehensive immigration reform but support a piecemeal approach to fix our broken immigration system, show us,” Rep. John Conyers (D-Mich.) said at a Judiciary Committee hearing. “Do something. … I believe we are closer today than we have ever been before. But now is not the time for more talk, talk, talk. Now is the time for action.”

UPDATE: 2:33 p.m. — White House Press Secretary Jay Carney responded to Boehner’s comments during a press briefing later Wednesday, saying that there is still time for the House to act if it wants to.

“I think it could happen this year,” he said. “Obviously, the House is the obstacle or the opportunity, and we, as I said, believe that if there were the will in the House to act quickly and decisively on comprehensive immigration reform, it could be achieved and it would receive a broad bipartisan vote in the affirmative.”

He made a small dig, however, at Boehner’s mention of efforts now being made to craft principles on immigration reform.

“I think that’s a welcome step, but it seems a little bit late in the game to be developing principles on this substantial issue and priority for American businesses, for labor, for faith communities, for law enforcement communities,” he said.

Carney added that it would be a good step for the House to hold a vote on the House Democrats’ immigration reform bill.

“What the House could do this week was take up its own comprehensive immigration reform bill,” he said. “There’s one that the House Democrats have put on the table that reflects the president’s principles, reflects the principles put forward in the bipartisan Senate bill, and that we strongly believe would pass the House with a substantial majority, including votes from both parties if the speaker were to bring it to the floor for a vote.”


Boehner Rules out Immigration Reform this Year

Posted on by Ruby Powers in Immigration Law Leave a comment
Boehner rules out immigration reform this year
November 13th, 2013
01:40 PM ET
3 hours ago

Washington (CNN) – If there were any doubts that comprehensive immigration reform efforts were dead on Capitol Hill this year, House Speaker John Boehner eliminated them on Wednesday.

Boehner repeated his long standing opposition to the Senate-passed immigration bill and his pledge the House would never vote on it, but he went a step further, drawing a bright line: “I’ll make clear we have no intention ever of going to conference on the Senate bill.”

Last week the third ranking House Republican, GOP Whip Kevin McCarthy, R-California, told immigration reform advocates that there wasn’t enough time left this year for the House to take up immigration reform. The House is in session 15 days between now and the end of the year.

After Republicans lost the presidential election in 2012 and Hispanic voters voted overwhelmingly for President Obama, Boehner said it was time for Congress to pass major immigration reforms.

“I think a comprehensive approach is long overdue. And I’m confident that the president, myself, others can find the common ground to take care of this issue once and for all,” Boehner said in an interview with ABC News the week after the election.

Facing sharp divisions inside his conference on the issue, Boehner insists he still wants action but says any legislation has to be done in pieces.

“I want us to deal with this issue but I want to deal with it in a common sense step by step way,” he said Wednesday.

A series of targeted immigration bills have passed the House Judiciary Committee – mostly focused on border security and enforcement – but GOP leaders have not scheduled any floor votes on any of them.

A significant bloc of House conservatives is adamantly opposed to any measure that provides a path to citizenship or legal status for the 11 million undocumented workers in the United States. So far, none of the House GOP proposals addresses that issue, but opponents worry that any negotiation with the Senate would ratchet up pressure on House Republicans to deal with questions of citizenship.

Boehner’s statement Wednesday declaring no talks with the Senate on its bill was designed to put those concerns to rest.

The Speaker brushed aside a question of whether House GOP leaders were avoiding the divisive debate on immigration reform to focus on problems with the implementation of Obamacare.

“This is about trying to do this in a way that the American people and our members can absorb,” Boehner said, adding immigration reform is too complicated to rush.

“There are hundreds of issues involved in dealing with immigration reform, and we’ve got to deal with these in a common sense way where our members understand what we’re doing and their constituents understand.”

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Obama seeks to build momentum for immigration overhaul

Posted on by Ruby Powers in Immigration Law Leave a comment

Nov 5 (Reuters) – President Barack Obama turned to business leaders on Tuesday to try to build momentum for an overhaul of the U.S. immigration system and pressured the U.S. Congress to approve legislation by the end of the year.

Obama brought a number of business executives to the White House to stress his belief that untangling the immigration system would add $1.4 trillion in growth to the U.S. economy over 20 years and reduce deficit spending in the federal budget by $850 billion.

Immigration legislation that would create a provisional status for workers as part of a 13-year path to U.S. citizenship cleared the Democratic-controlled Senate in June but is stalled in the Republican-led House of Representatives.

Obama told reporters as he met the business leaders that he would press the issue in coming weeks.

“There’s no reason why we can’t get this done before the end of the year,” he said.

The president’s domestic agenda has been caught up in controversies in recent weeks, including a budget battles with Republicans that led to a 16-day government shutdown. He is currently struggling to smooth out the troubled rollout of his signature healthcare law.

Intent on showing that other parts of his agenda can be worked on at the same time, Obama said he realizes there has been resistance to the immigration plan from House Republicans and that “the politics are challenging” for House Speaker John Boehner.

He said he believed the immigration overhaul would pass if Boehner allowed it to come to a vote in the House.

“We want to make it as easy for him as possible. This is not an issue where we’re looking for a political win. This is one where we’re looking for a substantive win for the U.S. economy,” Obama said.

Among the business leaders who met Obama were Roger Altman, chairman of Evercore Partners; Don Thompson, chief executive of McDonald’s; Arne Sorenson, the Marriott chief executive; and Marillyn Hewson, chief executive of Lockheed Martin.


New push for immigration reform will target 9 House Republicans

Posted on by Ruby Powers in Immigration Law, Immigration Trends, Legislative Reform Leave a comment

With a year to go until the midterm elections, immigration reform advocates hoping to jump-start debate on Capitol Hill are planning to target a handful of Republican lawmakers most likely to suffer political consequences next year if Congress fails to act on immigration reform.

Rep. Joe Heck ( R-Nev.), left, speaks with a constituent during a town hall meeting on immigration reform at Windmill Library in Las Vegas in July. Heck is one of nine House Republicans being targeted by a new campaign by immigration reform advocates. (LEILA NAVIDI/LAS VEGAS SUN)Rep. Joe Heck ( R-Nev.), left, speaks with a constituent during a town hall meeting on immigration reform at Windmill Library in Las Vegas in July. Heck is one of nine House Republicans being targeted by a new campaign by immigration reform advocates. (Leila Navidi/LAS VEGAS SUN)

A campaign set to be announced Thursday will marry the financial and political power of the AFL-CIO and SEIU labor unions with smaller grass-roots immigrant advocacy groups, including America’s Voice, PICO National Network, Mi Familia Vota and CASA in Action, to target nine House GOP lawmakers who support establishing a way for eligible immigrants to apply for U.S. citizenship.

The campaign will target Reps. Jeff Denham (R-Calif.), David Valadao (R-Calif.), Howard “Buck” McKeon (R-Calif.), Gary Miller (R-Calif.), Scott Tipton (R-Colo.), Mike Coffman (R-Colo.), Daniel Webster (R-Fla.), Steve Pearce (R-N.M.) and Joe Heck (R-Nev.). They represent districts with sizable Latino voting populations where President Obama won or performed well last year. They also have publicly voiced support for revamping the nation’s immigration laws.

Organizers said the goal of the campaign is to pressure the lawmakers to match their public statements by lobbying colleagues and House Republican leaders to permit votes on a series of immigration bills introduced in recent months. If the nine lawmakers fail to convince their colleagues by the end of the year, the groups plan to devote more resources to defeating them in next year’s elections and to expand their campaign.

“This is designed to tell Republicans that if you don’t take action on reform, there will be people who will take action in districts where Republicans are vulnerable to mobilize Latino and immigrant voters to reward or punish a member of Congress,” said Frank Sharry, executive director of America’s Voice, a leading national immigration advocacy group.

“A Republican majority in the House depends on people in vulnerable districts winning,” Sharry noted. “It just seems [House Speaker John A. Boehner (R-Ohio)] and company are more worried about members being primaried by tea party challengers than their members in districts with growing Latino populations. This is designed to tell them, ‘Guess what — you’d better worry.’ “

The House is unlikely to consider any immigration legislation before Congress passes another short-term spending plan in mid-January, according to top Republican aides. Even if debate ever begins, Boehner and his lieutenants have said they will not support a comprehensive Senate plan that would allow illegal immigrants to pursue citizenship over a 13-year period, saying they will consider a series of smaller-scale bills.

House lawmakers are on recess this week, but a visit to Capitol Hill last week by hundreds of conservative business and religious leaders helped persuade some GOP lawmakers to take another look at the issue, said Sen. Jeff Flake (R-Ariz.), who cosponsored the Senate plan passed this summer.

“There seems to be new life in the House on this,” he said Wednesday.

Flake served for 10 years in the House before ascending to the Senate in January and remains in close contact with House Republicans. He said there is growing interest in establishing ways for the children of undocumented immigrants and certain farm workers to more quickly gain U.S. citizenship, while establishing ways for the vast majority of undocumented immigrants to seek a permanent legal status.

“There’d be no special path created, but they would not be precluded from taking one of the paths that already exists,” Flake said.

Flake said there’s likely to be bipartisan support for the proposal, “because that’s the only way a deal can be had. I think there’s a good-faith effort underway on both sides of the aisle.”

Congressional Democrats also remain hopeful that House Republicans will quickly take up the issue, possibly in December before another round of negotiations over a short-term spending bill in January.

Sen. Charles E. Schumer (D-N.Y.), who worked with Flake on the Senate deal, has held several telephone conversations on the subject with senior GOP lawmakers, according to aides.

“Certainly politically it would benefit us if [House Republicans] don’t pass any bill, and they can’t pass any bill without some Democratic votes. But the overwhelming view of Democrats is that we’d sacrifice that political advantage to get a bill that moves America’s immigration policy forward,” Schumer said Wednesday.

The campaign launching Thursday will include outreach to nearly 90,000 voters in the nine districts through door-to-door outreach and phone calls. Additionally, the AFL-CIO announced plans Tuesday to spend more than $1 million on a bilingual television ad campaign in Bakersfield, Calif., Denver, Atlanta and Orlando and in the Washington, D.C. market. The SEIU plans to announce a similar ad campaign Thursday, according to people familiar with the plans.

Of the lawmakers targeted, Denham and Valadao have endorsed a comprehensive immigration bill authored by House Democrats that merges elements of the bipartisan Senate immigration plan passed over the summer with a bipartisan border security plan passed unanimously by a House committee in MayDenham said last week that he met with a good reception when he discussed the bill with colleagues during their weekly caucus-wide meeting.

Several of the other targeted Republicans reiterated their support for immigration reform this week but said they’re still reviewing the various proposals.

Aides to Heck said the congressman believes the House should act “in a timely manner.” Miller said in a statement that he plans to “closely examine the merits and consequences of any proposal.” Coffman said he is eager to work on the issue, “but that is appearing less likely given the limited time that is left on the calendar.”

Jackie Kucinich and David Nakamura contributed to this report.


Update from the NBC on Provisional Waivers – October 1, 2013

Posted on by Ruby Powers in I-601A Waivers Leave a comment

As the NBC staff soon realized, this broad application of the “reason to believe” standard has led to a high denial rate.  Given this development, Mr. Blackwood announced that, as of six weeks ago, NBC stopped issuing any “reason to believe” denials and is suspending adjudication of cases where this issue is present while USCIS and DOS reconsider the current policy and decide how to proceed in the future.  During this time, cases that involve a potential “reason to believe” issue are being held in abeyance, with no action taken on the case; currently about 1,300 pending applications are affected by this issue and will not be adjudicated until there is further guidance on the reason to believe policy.

Stay tuned for a formal decision from the USCIS on whether the NBC will modify the way it adjudicates I-601As with respect to the reason to believe standard.  Expect the NBC’s current approval rate (approximately 60%, including reason to believe denials) to increase.

 

Update from the NBC on Provisional Waivers – October 1, 2013
By Susan Schreiber and Charles Wheeler

On September 26-27, 2013, CLINIC conducted a two-day training in Kansas City on provisional adjudication of unlawful presence waivers.  The training included a presentation by Robert Blackwood, Assistant Section Director for Adjudications at the National Benefits Center (NBC), who gave an update on the waiver adjudication process at the NBC and answered questions from training participants.  A summary of the information he provided appears below.

NBC Background

The NBC serves mainly as a pre-processing center for applications adjudicated at USCIS field offices, including I-485 adjustment applications and N-400 naturalization applications. In addition, the NBC adjudicates certain applications and petitions to completion, including I-90s, immediate relative I-130 petitions, interview-waivable adjustment applications and, since March 4, 2013, I-601A applications for provisional waivers.  In addition to its facility at Lee Summit, MO, the NBC has expanded to include a new facility in Overland Park, KS.   Approximately 500 government employees and 800 contract workers staff the Lee Summit site. Currently, the NBC facility in Lee Summit employs approximately 550 government workers, and 800 contract workers.  A new NBC facility in Overland Park, KS is expected to employ 400-500 government workers and a similar number of contract workers.

I-601A Adjudication

The NBC is divided into eight divisions.  Division 1 is responsible for I-601A adjudications and   is staffed with between 45-50 adjudicators and 5 supervisors.  When fully staffed, the division will have 6 supervisors, who in turn report to 2 section chiefs.

All I-601As are filed at the Chicago Lockbox, which reviews submissions under its own business rules that address document sufficiency.  If rejected, an application should be accompanied by an explanation of deficiency.  If accepted, the Lockbox creates a case receipt file and forwards it to the NBC, where it goes through its own initial processing checklist.  NBC contract staff goes through their checklist to determine if the application is complete.  If staff determines there are missing documents, it issues a Request for Evidence (RFE); otherwise, it will schedule the applicant for a biometrics appointment. When the biometrics and the name check results come back, the application is transferred to the “JIT” (“Just in Time”) shelves and is considered ready to be adjudicated.

Supervisors assign cases to adjudicators when they are ready to be adjudicated. When they receive a file, the adjudicator first looks for basic eligibility – name check and biometrics response, national security issues – and if there is a “hit,” the file is forwarded to a security clearance team for resolution.  For cases that pass security clearance or do not have “hits,” the adjudicators follow a “processing checklist” sheet, which guides them through the process of determining statutory eligibility (e.g., USC qualifying relative) and whether the applicant has satisfied the extreme hardship standard.  The adjudicator makes notes on the processing checklist, which is helpful in making the decision and for later supervisor review. If the case is denied, the file is sent to the National Records Center, where it will be stored.  If it is approved, the file will be sent to the Texas Service Center.  The TSC holds on to the case files so they can be matched up later after the applicant immigrates.  The NBC sends the applicant and the representative the written approval or denial decision.

The NBC sends the National Visa Center (NVC) an electronic data report on I-601A receipts on a daily basis, so that the NVC can stop processing the immigrant visa application until there is a decision on the waiver application. A “decisions” report is then sent to the NVC every week, to inform the NVC of waiver application outcomes so that the NVC can then proceed with IV processing. The NBC does not send the actual I-601A decision to the NVC; it only sends notification of whether the I-601A was approved or denied. If the NBC denies the application because it has a “reason to believe” the applicant might be inadmissible under another ground, it only informs the NVC that the waiver application was denied.

For the first two months of provisional waiver adjudication, all applications were reviewed by division supervisors to ensure that the appropriate decisions were being made. Now, all denials are reviewed by the supervisor and approvals only spot-checked.  If a supervisor has questions or concerns about a particular decision, the supervisor is not supposed to tell the adjudicator how to rule in a particular case.  Instead, the supervisor should encourage a dialogue with the adjudicator to find out more about the decision recommendation.  If there is still disagreement as to whether the application should have been approved or denied, the supervisor may go to one of the section chiefs for further guidance.

Every week a report is generated indicating how many applications were adjudicated.  Based on those reports, the process is becoming more efficient.  The NBC is in communication and is sharing data with the State Department to determine whether I-601A applicants who were denied were later approved by the consulate through an I-601 waiver.  It is looking specifically to see if applicants denied based on the “reason to believe” standard were found by the consulate to be inadmissible only for unlawful presence and later approved through an I-601. It is also seeking the opposite type of statistics: whether applicants whose I-601As were approved were later denied by the consulate due to a finding of inadmissibility on a ground other than unlawful presence.  After only six months of provisional waiver adjudication, the statistical evidence is not yet meaningful to draw any conclusions on these issues.

If an I-601A applicant who is denied elects to re-file, the NBC will pull the original application and check it against the new application.

Both ICE and EOIR seem supportive of the provisional waiver process because it allows them to clear cases off their active docket where the respondent is likely to receive an immigrant visa.

Statistics

The NBC has provided the following numbers based on I-601A applications received or adjudicated from March 4 – September 14, 2013:

23, 949 applications sent to Lockbox

17,996 applications accepted by Lockbox

5,953 application rejected by the Lockbox

The reasons for rejection could include no applicant signature, no proof of I-130 approval, no proof of NIV fee paid, or applicant is under 17.  The number of applications received may include re-filings by applicants whose cases were initially rejected at the Lockbox.

The NBC has 12,098 applications in the pipeline, with approximately 2,300 ready for processing. It is averaging approximately 600 applications/week, so it has about four weeks of applications to adjudicate.  With 45 adjudicators currently working these cases, this averages out to each adjudicator handling about 13 applications per week, or about 2.6 per day.  Mr. Blackwood noted that adjudicators have other work responsibilities, including time spent in trainings and at meetings.

The NBC has issued the following decisions:

3,497 approvals (59%)

2,292 denials (39%)

103 admin closures (application returned for various reasons, e.g., filed I-601 instead of I-601A) (2%)

Although applications have been denied for various reasons, the highest number of denials – 1,093, or 48% of all denials – is for “reason to believe.”  The second highest number – 937, or 41% of all denials – is for failure to establish extreme hardship.  Other reasons for denial include abandonment, applicant in proceedings, pending adjustment of status application, lack of qualifying relative, pre-2013 consular interview scheduled, and applicant subject to existing or final order of removal.

At present, the average time between receipt of an application at the Lockbox and decision issuance is 103 days.  The goal is to reduce the adjudication time to 90 days. The NBC adjudicators were working at that pace initially until the “reason to believe” denials became a controversial issue.

Reason to Believe

Mr. Blackwood explained that the provisional waivers working group developing the I-601A regulations and procedures for processing wanted to keep inadmissibility determinations a function of the Department of State, so that USCIS officers would limit their consideration to waiver adjudication. This is because the USCIS has no authority to determine admissibility in a case to be decided by the consulate after the applicant has left the United States and appeared for the interview. In other words, the USCIS did not want its adjudicators analyzing whether the applicant was inadmissible on grounds other than unlawful presence. At the same time, the USCIS did not want to approve I-601As and have the applicant be denied at the consulate for another ground of inadmissibility.

That was the rationale for developing the “reason to believe” standard, where the adjudicators would make a very quick assessment based on the name check and biometrics results as to whether the applicant might be inadmissible on another ground. Under this standard, adjudicators are instructed to deny all applications involving a criminal conviction, regardless of what the conviction is for, when it occurred, or whether it falls within a recognized exception to inadmissibility, like a petty offense.  If  the fingerprint check resulted in a “hit” during an IDENT database search, and it revealed a conviction, then the application was denied under the “reason to believe” standard.  Similarly, if there was an inconsistency in the name or date of birth of the applicant and that provided during CBP processing for voluntary departure after an arrest at the border, the applicant was denied for “reason to believe.”

As the NBC staff soon realized, this broad application of the “reason to believe” standard has led to a high denial rate.  Given this development, Mr. Blackwood announced that, as of six weeks ago, NBC stopped issuing any “reason to believe” denials and is suspending adjudication of cases where this issue is present while USCIS and DOS reconsider the current policy and decide how to proceed in the future.  During this time, cases that involve a potential “reason to believe” issue are being held in abeyance, with no action taken on the case; currently about 1,300 pending applications are affected by this issue and will not be adjudicated until there is further guidance on the reason to believe policy.

Mr. Blackwood noted that if the reason to believe standard is changed so that not all of the denied cases would warrant denial under revised interpretation, the NBC will also consider whether to apply any new policy retroactively and reopen denied cases sua sponte.

While there is no mechanism to appeal a denial or seek reconsideration, the NBC can reopen a case on its own if it believes a denial was made incorrectly. Mr. Blackwood indicated during his presentation that denials under the reason to believe standard that seem clearly wrong could be brought to his attention and he would pull the file to see if the agency made a mistake.  The examples he gave where the standard might have been misapplied include cases where the applicant’s name and date of birth appear inconsistently in DHS data files, but the inconsistency appears to be a clerical error or insignificant.  It would not include cases containing criminal convictions, since the agency is waiting for further instruction before reviewing those.  To bring those cases to his attention, send an e-mail to the authors at sschreiber@cliniclegal.org or cwheeler@cliniclegal.org.  Include the name of the applicant, the waiver receipt number, and the “A” number, as well as a brief description of the issue (e.g., month and day of applicant’s date of birth were transposed; applicant’s name recorded incorrectly).

Adjudication of Extreme Hardship and RFEs

Current policy does not mandate that the agency issue an Request for Evidence (RFE) before issuing a denial.  NBC adjudicators will typically issue an RFE if they believe additional documentation will help them reach a decision in a case.  For example, if an applicant claims a health-related hardship, but only submits financial evidence, the adjudicator will issue an RFE.  Or if the applicant claims multiple hardships but submits only evidence supporting one claimed hardship, or weak evidence of hardship, the adjudicator will issue an RFE for the additional evidence.  But if the applicant claims hardship and the officer believes sufficient evidence was presented but that the extreme hardship standard was not met, then the adjudicator can simply issue a denial without issuing an RFE.  In other words, if additional documentation would not add any value to the hardship claim, the NBC will forego issuance of an RFE.  Mr. Blackwood noted that quality control measures are in place because all denials are reviewed by a supervisor.

Mr. Blackwood explained that RFE response times are set at 30 days so that consular processing is not delayed.  A request for an extension may be considered if there are compelling reasons warranting additional time to respond to the RFE

Comparison with NSC Adjudications of I-601

NBC staff made adjustments to their standards for evaluating extreme hardship that has resulted in more provisional waiver approvals. These adjustments came in the wake of exchanging information and statistical data with the NSC regarding its adjudication of I-601 waivers, as well as reviewing AAO waiver denial reversals.  Mr. Blackwood explained that adjudicators are now assessing extreme hardship to the qualifying relative as impacted by hardships to other family members. As a result, the denial rate has come down and the NBC is approving more applications.  Mr. Blackwood anticipates that the denial rate will continue to go down as adjudicators gain more experience.

Mr. Blackwood also noted that the provisional waiver is more challenging for the applicant, because the hardship to the qualifying relative is prospective, as opposed to the I-601 applicant who has left the United States and whose qualifying relative is already experiencing the hardship.  For this reason, the denial rates will not necessarily be comparable.

Waiver Submission Format 

Mr. Blackwood encourages applicants to submit a cover letter or brief that summarizes the hardships and helps the adjudicator understand the theory of the case. Submit all supporting evidence that is pertinent, such as a doctor’s letter summarizing medical conditions.  Since the Lockbox removes all tabs and bindings, use some kind of pagination system to help identify and segregate supporting documentation.  Even though the application is scanned at the Lockbox, the original submission is still sent to the NBC; any highlighting of important documentation or color dividers separating exhibits will be retained.  If submitting supplemental information after the application has already been submitted, make sure to include the receipt number and the A#.   Avoid sending multiple pages from the Internet on a specific medical condition (e.g., definition of diabetes) or DOS country conditions reports.

Conclusion

Stay tuned for a formal decision from the USCIS on whether the NBC will modify the way it adjudicates I-601As with respect to the reason to believe standard.  Expect the NBC’s current approval rate (approximately 60%, including reason to believe denials) to increase.


Notes from American Immigration Lawyers Association September 27, 2013 Conference in Austin, Texas

Posted on by Ruby Powers in Immigration Law Leave a comment

Hot Topics from American Immigration Lawyers Association Fall  Conference in Austin, Texas, September 27, 2013

by Immigration Attorney, Ruby L. Powers, Houston, Texas

– We are all working and hoping for comprehensive immigration reform this Fall 2013 because if we get much beyond Spring 2014, our window for reform might be over. AILA and local chapters are organizing advocacy efforts.

– Reason to Believe denials for Provisional Waivers – AILA will discuss with NBC via a liaison committee meeting in late October 2013 and we are hoping for some more guidance and improvements in the situations.

– Many people are waiting for comprehensive immigration reform and have not flooded Ciudad Juarez like expected. Other attorneys have noted less cases due to suspected anticipation of reform.

– If no other ineligibilities, processing at Consulate in Ciudad Juarez for I-601A waivers will take 2-3 days (this doesn’t take into account biometrics and medical exam)

– Only 50 applications have been adjudicated in Ciudad Juarez for the I-601A provisional waiver as per Consulate General David J. Jendrisak with the Department of State Ciudad Juarez, Mexico post.

– CBP will unveil an online FOIA tracking system on Monday, September 30, 2013.

– New Fiscal year for US Government starts October 1, 2013 and if Congress doesn’t act, funding will be cut for many Government operations related to many aspects to visas and immigration functions.

– Online system for I-94s (paperless) do have issues and AILA and CBP have been working on improving the issues.

– Tactics to challenge mid-wife birth passport application challenges


Immigration advocates claim ” resounding win” in quiet August

Posted on by Ruby Powers in Immigration Law, Legislative Reform Leave a comment

Originally Published: The Hill, September 2, 2013

Advocates for comprehensive immigration reform are claiming victory in the August recess. Their argument? They won because they didn’t lose.

With legislation stalled in the Republican-controlled House, the push to overhaul the immigration system has not dominated the national headlines or evening news during the four weeks that Congress has been taking its annual summer vacation.

Proponents of reform say they entered the recess worried that foes of the effort would flood town-hall meetings and stage large rallies, in a repeat of the Tea Party uprising that threw the push for healthcare reform off track in the summer of 2009. 

Despite efforts by Rep. Steve King (R-Iowa) and others, that dynamic hasn’t materialized.

“What’s more important than what we have seen is what we haven’t seen,” said Jeremy Robbins, director of the Partnership for a New American Economy, a group co-founded by New York Mayor Michael Bloomberg that is advocating for immigration reform. “August was a resounding win for us.”

The conservative activist Grover Norquist, who is pushing for immigration reform, also cited the lack of major opposition as the dog that didn’t bark in August. “There’s nothing like that,” he told The Hill on Tuesday. “The anti-immigrant stuff is an inch deep and a mile wide.”

At the same time, the modest rallies in favor of reform have fallen short of a groundswell of support.

Advocates say they did not plan their own large-scale rallies but targeted their efforts to individual congressional districts, and they cited endorsements of a path to citizenship by a number of House Republicans as evidence of their success.

“We never approached August with the idea were going to move 100 House Republicans into the yes column,” said Tom Snyder, who is managing the AFL-CIO’s campaign for legislation that includes a path to citizenship.

Snyder and Robbins said on a conference call with reporters Thursday that they always viewed the recess as a potential challenge, citing concerns that Republicans would return to Washington hardened against reform because of opposition from vocal constituents. “Recess is something that panders to the extreme,” Robbins said.

The advocates said they remained optimistic about the chances for final legislation despite the uncertain outlook in the House, where Republicans are likely to focus on fiscal fights until at least October and potentially the entire fall.

A bipartisan proposal from a group of seven negotiators is stalled because Republicans in the group say it lacks support from the majority required by Speaker John Boehner (R-Ohio) to call a vote on immigration legislation.

While lawmakers in both parties have said they want to get a final bill signed by the end of the year in advance of the 2014 midterm elections, advocates said there would still be a window of opportunity early next year before the campaigns begin in earnest.

Boehner has said he wants to get reform done, and backers of the effort said their optimism stemmed in large part because of the electoral imperative that many Republican leaders see in winning over Hispanic voters in future national elections.

“The House Republicans either get it done, or they get blamed for blocking it. It’s as simple as that,” said Frank Sharry, executive director of America’s Voice.

Sharry and others have made clear that while they want to help Republicans succeed, they are threatening serious political consequences in 2014 and 2016 if reform dies.

“We would love to be patting the Republicans on the back for finding a way forward,” Sharry said. “But if they don’t, we will be kicking their ass.”


Path Toward Citizenship or Legalization

Posted on by Ruby Powers in Immigration Law, Legislative Reform Leave a comment

Originally Published: The Hill’s Congress Blog, August 30, 2013

Controversy over a path toward citizenship is the most important roadblock to immigration reform.

Many conservatives oppose a path to citizenship because it’s unfair to reward law breakers with citizenship.  Rep. Raul Labrador (R-Ida.) said, “People that came here illegally knowingly – I don’t think they should have a path to citizenship.”  On the political left, Rep. Luis Gutiérrez  (D-ll.) said he, “is opposed to proposals that bar citizenship or create a permanent non-citizen underclass.”

To Labrador’s point, the heavy fines, fees and bureaucratic abuses that would prod every legalized immigrant on a path toward citizenship are hardly an award for legal behavior.  And to Gutierrez, a legalization status less than citizenship is no more an underclass than the millions of green card or visa holders that currently happily live without becoming citizens.

There is a simple solution to this impasse that could satisfy both camps: Create two paths.

The first path should be toward a permanent work visa where the immigrant cannot apply for citizenship unless he or she serves in the armed forces or marries an American.  This visa should be very cheap – hundreds of dollars – and granted quickly after national security, criminal, and health checks.

The second path should be toward a green card and eventual citizenship. This path should be more difficult and expensive, something similar to the Senate’s path to citizenship. Those legalized unauthorized immigrants who want to become citizens should be able to do so.

For unauthorized immigrants uninterested in citizenship, who just want to work and live in the U.S. without fear of deportation, a simple and low-cost path toward a permanent work permit would save them headaches, uncertainty, and cash.

This would definitely be consistent with conservatives like Labrador who say that unauthorized immigrants do not want citizenship.  “They’re not clamoring for it,” he said earlier this year. “It’s only the activists here in Washington D.C. who keep clamoring for it.”

If Labrador is right, most unauthorized immigrants would choose a more affordable and easier path toward legalization rather than a more expensive and difficult path toward citizenship – if they were given a choice.

A look at the polls, however, indicates that unauthorized immigrants do want citizenship. In fact, a recent Latino Decisions poll found that 87 percent want to become citizens. But if history is any guide, many of those respondents would choose a cheaper and easier form of legalization if it was offered.

The 1986 Reagan amnesty bill created an affordable and straightforward path to a green card and citizenship.  But almost a generation later, only 45 percent of former unauthorized immigrants have naturalized.  The 2013 bill would likely produce an even lower rate of naturalization, as the path to citizenship is much more arduous than the Reagan-era bill.

As a general rule, one-size fits all reforms rarely work well.  A path to citizenship is not likely to be an exception, although it’s better than the status quo.  Allowing a second, simpler path toward a permanent work permit that won’t lead to citizenship will allow otherwise law-abiding unauthorized immigrants, those who will be affected most, to choose their own level of legal status.

Conservatives can say that millions of unauthorized immigrants will be legalized and most won’t choose citizenship, while leftists can say they created a path toward citizenship.  Most importantly, the deportations can stop and immigration can be liberalized.  All of these sides win.

Left-wing interest groups claim to know what’s best for unauthorized immigrants, which is why many of them are pushing for a path toward citizenship.  Conservatives claim that unauthorized immigrants don’t want citizenship, so it shouldn’t even be offered.  Instead, there should be at least two paths toward legal status, one with citizenship and one without, and the immigrants themselves should choose which one they want to individually follow.


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