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Immigration Policy Update for January 31, 2012

January 31, 2012 - Posted by Maurice Belanger

The 112th Congress has returned for its second session. The House returned the week of January 16; the Senate returned last week. At the beginning of the year, the parties conduct their retreats, with everyone gathering to listen to the State of the Union speech.

State of the Union

The President, in his State of the Union speech, devoted three paragraphs to immigration—telling Congress they should be working on comprehensive immigration reform and that opponents of action have “run out of excuses.” In the alternative, he urged Congress to send him a bill that would give “responsible young people” a path to citizenship.

In a presidential election year, however, it will be a remarkable achievement if this Congress does anything that might remove the “do nothing” label it earned in its first session.

The President has adjusted his strategy in reaction to Congressional inaction. He has vowed to act on his own, within the bounds of his authority, to mitigate some of the problems that Congress is allowing to fester.

Waiver of Three- and Ten-Year Bar to Reentry

In the immigration arena, on January 9, 2012, the Administration published a notice in the Federal Register announcing that it intends to make changes in the processing of waivers to the three-and ten-year bars to reentry for immigrants who have stayed in the country illegally for longer than six months or a year. With the current waiver process, an immigrant who is eligible for a family visa, but who is also subject to the bars to re-entry, must apply for a waiver to the re-entry bars while outside the United States. The processing of the waiver may take a long time, and in that time the family is separated. Once the rule is finalized—a process that will take several months—a person applying for a waiver of the three- and ten-year bar may do so from inside the U.S. If the waiver is approved, the person still will be required to leave the U.S. and obtain the immigrant visa for which he or she is eligible through a U.S. consular office in his or her home country.

The rule will not change the criteria for granting the waiver—that a three- or ten-year separation will cause extreme hardship to a U.S. citizen or lawful permanent resident spouse or parent. The Federal Register notice says the administration intends to apply this new procedure only when the family member involved is a U.S. citizen. (Immigrant relatives of lawful permanent residents will still be required to apply for the waiver from outside of the U.S.)

The new procedure, once it goes into effect, will be a small step in alleviating family separation created by broken immigration laws that ultimately must be fixed by Congress. The rule would be stronger if it did not (arbitrarily) exclude the family members of U.S. permanent residents. These individuals are still eligible to apply for the waiver, but they will continue to do so from outside the U.S., meaning their families face longer separations. When a proposed rule is issued, there will be time to make the case for inclusion of these individuals.

The announcement ruffled the feathers of some defenders of Congressional inaction. Rep. Lamar Smith (R-TX) issued a statement complaining that the President’s action and similar actions meant to mitigate damage from Congress’ lack of action on immigration comes “without a vote of Congress.” Of course, that’s the point. The President should be using the authority given to him to find ways to alleviate problems that someday will be solved by a future Congress. On January 10, representatives of faith and civil rights communities came together in a press conference to applaud the President’s actions and to talk about what this means to families who would otherwise be unnecessarily separated. A press release summarizing that teleconference, along with a link to the recording, can be found on the Forum’s Web site. Resources related to this issue can be found on the Web site of the American Immigration Lawyers Association.

Obama Announces Changes in Tourist Visa Processing

On January 19th, President Obama traveled to Orlando’s Disney World to announce changes his administration will make to encourage tourism by speeding up the processing of tourist visas. Changes include boosting capacity to process visas in Brazil and China, where long waits have developed for persons applying to visit the U.S. Pilot programs will test methods to streamline the process, including the elimination of in-person interviews for certain low-risk individuals. For all countries, the State Department will attempt to interview 80% of non-immigrant visa applicants within three weeks of applying. The Administration will also look to extend the visa waiver program to additional countries. (Taiwan was named in the announcement. The majority of visitors to the U.S. already do not need visas to enter—most are from countries, mainly European countries and Japan, that meet certain requirements and have reciprocal agreements with the U.S. to waive the requirement for visas.)

For more information, see this announcement from the White House.

Prosecutorial Discretion Initiative Continues

Pilot programs in the immigration courts of Denver and Baltimore, meant to sift through the backlog of deportation cases to find those cases meeting ICE’s prosecutorial discretion guidelines, ended earlier this month. The New York Times projects, based on the results of the pilots, that once the nationwide backlog of 300,000 deportation cases is sifted through, ICE may find 39,000 cases that can be administratively closed because the individuals are low priority targets for enforcement. In addition to reviewing the backlogged cases, ICE attorneys have also been directed to review all incoming cases to ensure they merit expenditure of agency resources.  (Additionally, USCIS issued a new policy directive to its employees setting forth revised procedures for opening a deportation case against a non-citizen. That memo on issuing NTAs was issued in November and is available here.)

Background and resources related to ICE’s prosecutorial discretion policy can be found on the Forum’s Web site. To get a sense of how the Administration’s prosecutorial discretion policy is being implemented, the American Immigration Lawyers Association is conducting a survey of lawyers who have cases where the issue of prosecutorial discretion has been raised after November 17, 2011. If you have such a case and can participate in the survey click here.

Changes in the Administration

On December 22, Customs and Border Protection Commissioner (CBP) Alan Bersin resigned from CBP. Mr. Bersin’s recess appointment was about to expire. A brief statement about his resignation was issued by DHS Secretary Janet Napolitano, who noted that Deputy Commissioner David V. Aguilar will serve as Acting Commissioner.

On January 10, the White House announced the appointment of Cecilia Muñoz to head the White House Domestic Policy Council. Ms. Muñoz replaces Melody Barnes, and she served previously as Director of Intergovernmental Affairs in the White House. Ms. Muñoz is a long-time immigration reform advocate, and her appointment will present new opportunities to raise the level of discussion within the government about the need for immigration reform. You can read the Forum’s statement applauding her appointment here.

Margo Schlanger has left the position of DHS Officer for Civil Rights and Civil Liberties after two years with the agency to return to her teaching position at the University of Michigan Law School. Tamara Kessler is serving as the interim Officer.  

Bill to Alleviate Certain Visa Backlogs on Hold in Senate

On November 29, the House passed a bill that would alleviate visa backlogs for some immigrants waiting for visas in the family-based and the employment-based immigration system. Among other things, the Fairness for High-Skilled Immigrants Act (H.R. 3012), would eliminate the per-country ceiling for employment-based visas, and would lift the cap for family-based immigrants from seven percent to 15 percent. The effect would be to allow more of those who have been waiting in line longest to obtain their visas, while spreading the backlog out more evenly.

The bill is stuck in the Senate, where Senator Charles Grassley (R-IA) has a hold on it, ostensibly because it does “nothing to protect Americans” seeking employment.

The bill will not eliminate the overall backlogs that have developed because the number of visas available have not changed since 1990, and this bill does not increase the number of overall visas.

This is not a precise analogy, but one way to think about the effect of this bill is to picture a grocery store checkout with six lines that can check out a certain number of people in an hour.  However, three lines are reserved for persons with 15 items or less. If there are very few shoppers with 15 items or fewer, long lines will form at the other three checkouts in which all of the other shoppers will be stuck. If the store opens the other three lines to everyone, the lines will shift, with some who have been waiting a long time moving up to the front, but eventually all lines will back up.

This article from the Washington Post does a good job of portraying the effect on different groups of immigrants waiting in the visa backlog.

Click here to read the National Immigration Forum’s reaction to passage of the bill in the House.

House Republicans Seek to Cut Child Tax Credit to Pay for Payroll Tax Cut

One of the first tasks facing Congress in this session is to make a decision on whether to extend the payroll (Social Security) tax cut, due to expire at the end of February. The House is pushing a provision that would deny the child tax credit to tax filers who file using an Individual Taxpayer Identification Number (ITIN), instead of a  Social Security Number. That provision was included in the House-passed bill to extend the tax cut for two months back in December, but was stripped out in conference with the Senate. Advocates are pressing the Senate to reject this House proposal, which may mean the loss of $1,800, on average, to low-income immigrant parents.

For more information on the child tax credit issue, and how you might get involved, see this from the National Immigration Law Center.

Summary of Appropriations for DHS Available

Just before the holiday break and just short of three months behind schedule, Congress passed an appropriations bill for the Department of Homeland Security. Not surprisingly, spending on immigration enforcement—in the interior and on the border—were boosted, while appropriations for USCIS were cut way back. A short summary of the immigration-related spending in the appropriations bill can be found on the Forum’s Web site.

South Carolina Law Enjoined

On December 22, a federal judge granted a temporary injunction against a South Carolina anti-immigrant law that was due to take effect January 1. Three provisions of the law were blocked—the section making it a state crime to transport an undocumented immigrant; the section making it a state crime to fail to carry federal immigration registration documents; and the section requiring police to try to determine the immigration status of any person under investigation or arrest whom the officer has “reasonable suspicion” to believe is in the country illegally. The judge found that these provisions are preempted by federal law.

South Carolina is being sued by the Justice Department and by civil rights groups. Judge Gergel’s opinion can be found here.

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