PENDING LEGISLATION WOULD ALLOW IMMIGRATION BENEFITS FOR GAY “PERMANENT PARTNERS”

As dysfunctional as our immigration system is, lately there has been some effort to improve some of the laws.  Some of these efforts are the result of successful litigation by the immigration bar, such as allowing concurrent filing for religious worker I-360s (to allow beneficiaries to apply for permanent resudence and employment authorization while their I-360 cases are pending, which often takes a year or longer) or a reprieve on deporting widows of US Citizens.  Other efforts some as a result of Congress taking action to offer immigration benefits to same-sex permanent partners. 

According to an article on chron.com:  “Legislation pending in Congress, the Uniting American Families Act, would create a new category in immigration law for “permanent partners” and offer same-sex couples the same benefits for immigration purposes as heterosexual couples.”

As gay marriage becomes a reality in more and more states, it makes sense that our immigration laws should follow suit.  However, because same-sex marriage is still not legal in most states, a federal law that would allow only gay “married” couples to adjust status would not make much sense. 

These piece-meal improvements to our laws are much better than nothing but are hopefully only a preview of major immigration reform that a majority of Americans, foreign-nationals and employers realize is so badly needed. 

COURT ORDERS USCIS TO ACCEPT CONCURRENT FILINGS FOR I-360 RELIGIOUS WORKERS

In a decision issued on June 11, 2009, the US District Court, Western District of Washington at Seattle in the case Gabriel Ruiz-Diaz et al. vs. United States of America et al., ordered the defendants to “accept as properly filed adjustment of status applications (Form I-485) and employment authorization applications (Form I-765) from individuals who are beneficiaries of petitions for special immigrant visas (Form I-360), whether submitted concurrently with or  subsequent to the vbisa petition provided the applications meet defendants’ valid filing requirements.”

This is a very favorable decision in which the class-action plaintiffs succeeded on all fronts.  The Court even refused the government’s request to stay the matter pending appeal and ordered that the decision be posted on the USCIS website within 15 days.

We will see how the USCIS handles this and I will update this blog as news is forthcoming.

DE FACTO DEPORTATION?

The following is for informational purposes and is not legal advice.  Please consult a qualified immigration lawyer regarding you unique situation. 

According to an article that appeared on latimes.com:  “No immigration agents descended on Overhill Farms, a major food-processing plant in Vernon. No one was arrested or deported. There were no frantic scenes of desperate workers fleeing la migra through the gritty streets of the industrial suburb southeast of downtown Los Angeles.”

Desk audits are an effective method that the federal and state departments of revenues use to collect taxes they believe are due.  A desk audit is simply a letter stating how much the government believes is due with and envelope enclosed to send a check.  When the amounts in controversy are small, taxpayers often just send a check rather than spend the time or money needed to argue the matter – regardless of whether they believe they actually owe the amount claimed.  This brings us to the concept of “de facto deportation”.

Generally, employers who receive “no match” letters from the SSA should give the affected employees 30 days to remedy the situation and if the workers do not take action, they may be terminated.  In the case referred to in the article, the no match informatiion apparently came as a result of an IRS audit.  This is a smart way for the government to get undocumented aliens to leave the country if this is indeed their goal.  Hopefully, Comprehensive Immigration Reform is in the cards and employers will be able to legally hire and retain the workers they need to run their businesses.

IMMIGRATION “LOTTERY”

Having returned returned from Las Vegas, where AILA’s annual conference was held last week and the irony of holding the event in Vegas given the abysmal state of immigration-related laws and adjudications is not lost.  Below is a list of how immigration is analogous to games of chance in so many ways:

Diversity Lottery

The most obvious “game of chance” when it comes to US immigration policy is the DV lottery.  If you are eligible and you win, you may be on your way to a green card.

Adjudications

More than ever before, we now tell our immigration clients that the odds of success in a particular case depends on the adjudicator.  Inconsistent adjudications and questions raised by the USCIS on extensions of previously-approved petitions have become commonplace.  Cases that we tell clients may not fly are often approved without question and those that are considered straighforward become uphill battles. 

Although Appeals or Motions to Reconsider erroneous decisions may be available, the time it takes for such decisions to come down is often fruitless from a strategic point of view because even if the Appeal is sustained, the alien’s status is not preserved during the pendency of an Appeal and in the case of an employment-based petition, an employer may not be interested in waiting for a year or more to hire an individual that it needs today.

Hope of Immigration Reform

Another gamble some foreign-nationals are willing to take is to wait for some sort of immigration reform.  If a path to legalization is a component of such a law that actually passes both Houses and is signed by the President, then some individuals may choose to lay low and see what happens if their case is denied or they are at risk of being subject to the three or ten years bars to reentry that would be triggered if they left the US.    

One piece of advice that is more true now than ever is to retain competent immigration counsel to represent you.  As tough as it is for lawyers in this environment, it is often a nightmare for those who try to go it alone.  Potential clients regularly call on us to try to clear up issues that arise when the subtleties of the laws and regulations are ignored or the government simply denies a case because it can.  It is best to hire counsel at the outset of a case than to do so after problems have surfaced.

VEGAS BABY!

This year the American Immigration Lawyers Association will be holding its annual conference in Las Vegas.  This seems appropriate given the gamble that immigration law has become in the past year or two.  Whereas adjudications used to be predictable, they are now sporadic, whereas in the past the foreign-national (or her employer) may have been given the benefit of the doubt – this is usually no longer the case.

As it is in Vegas, the immigration rules favor the House and the House usually wins.  Immigration used to be a field in which those whose motivation to practice law was to “help” people navigate the system.  The consensus among many immigration lawyers is that government agencies are now taking a hard-line approach and using any discretion to deny or aggressively question petitions and applications.

On the positive side, we have received some certifications for long-pending PERM applications that were audited about a year ago.  Also June 8th will be the kick-off for a Comprehensive Immigration Reform push.  Let’s see whether luck will be on our side this time or if we’ll just “bust” or “crap out” as they say in Vegas!  I will resume writing for this blog next week.