Nation of Immigrants

55,000 Green Cards for Employment-Based Immigrants

Think that the Democrats and Republicans in Congress will never be able to agree about immigration policy? 

Better think again!

When I started working as an immigration attorney, Jerry Ford was the President of the United States. Over the past 35 years, I have seen the two parties unite to pass dozens of immigration laws.

Yes, I know the parties are so divided on the issue of what to do about the 12 million illegal immigrants in the U.S. that they couldn't even get together a few weeks ago to pass the DREAM Act.

However, when it comes to reforming the legal immigration system, things are very different.  The parties have come together to pass dozens of bills providing immigration benefits including the Child Status Protection Act in 2002, the Nursing Relief for Disadvantaged Areas Reauthorization Act in 2005, the Physicians for Underserved Areas Act in 2007, and the bill that ended the Widow's Penalty in 2009.

So, what's on tap for 2011?

On January 6, 2011, Representative Darrell Issa (R-CA) introduced H.R. 43, a bill which would "amend the Immigration and Nationality Act to eliminate the diversity immigrant program and to re-allocate those visas to certain employment-based immigrants who obtain an advanced degree in the United States."

In simple English, the bill would eliminate the annual green card lottery and give the 55,000 green cards each year to foreign-born graduates of U.S. universities with advanced degrees in the sciences or in medicine. 

With the employment-based second preference category (EB-2) backlogged for many years for persons born in India and mainland China, our country would benefit greatly if 55,000 more green cards were available annually for highly-educated people.

Sure, the bill could be tweaked to provide that the green cards could be given to anyone with an advanced degree, not just those with degrees from U.S. universities.  Unused numbers should drop down to help those waiting in the EB-3 category.  Also, the bill could be amended to increase or eliminate country quotas in the employment-based categories.

For many years, our country imported over 100,000 persons annually on H-1B temporary professional visas.  Congress raised the H-1B quotas, but did not expand the employment-based preference numbers.  The result was that hundreds of thousands of highly-educated immigrant workers came legally to the U.S., were sponsored by their U.S. employers for green cards, met all the qualifications and jumped through all the legal hoops, and are now stuck in lines that can only be measured not in years, but in decades.

If the United States wants to remain the world leader in the sciences, in medicine, in biotech and in information technology, we had better revise our immigration laws so that we continue to attract the world's best and brightest.

H.R. 43 is a step in the right direction.

 

February 2011 Visa Bulletin: Frozen in Time

For over 3.5 million persons waiting in line to become permanent residents of the United States, the February 2011 Visa Bulletin signals yet another month of frustration.  The numbers seem to be frozen in time.

In the family categories, the worldwide visa numbers for the 1st, 2A, 2B and 3rd preferences all failed to advance a single day.  For persons in the 4th preference category, the news was much, much worse: the waiting time increased from 9 to 11 years.

For persons in the already heavily backlogged family categories from the Philippines and Mexico, the advances were minimal, and for those born in the Dominican Republic, at least two of the family categories retrogressed by a number of years.

The situation was little better in the worldwide employment-based categories where the waits increased in the worldwide EB-3 category (professionals, skilled and unskilled workers).  The waits increased in the China and India EB-2 and EB-3 categories and decreased slightly in the heavily backlogged Mexican EB-3 category.

The following charts tell the story:

FAMILY CATEGORIES

Categories	Worldwide	Dominican Republic	Mexico	Philippines
1st	1-01-05	1-01-05	1-22-93	8-01-94
2A	1-01-08	1-01-08	4-01-05	1-01-08
2B	4-15-03	3-01-02	7-01-92	6-01-99
3rd	1-01-01	1-01-01	11-22-92	10-22-91
4th	1-01-00	1-01-00	1-01-96	1-15-88

EMPLOYMENT CATEGORIES

	World Wide	China (PRC)	India	Mexico	Philippines
1st	Current	Current	Current	Current	Current
2nd	Current	7-01-06	5-08-06	Current	Current
3rd	4-01-05	1-01-04	2-22-02	7-08-03	4-01-05
Unskilled	5-01-03	5-01-03	2-22-02	5-01-03	5-01-03
4th	Current	Current	Current	Current	Current
Religious	Current	Current	Current	Current	Current
5th	Current	Current	Current	Current	Current

 

Nor is the situation bound to improve anytime soon.  The State Department warns of further retrogression in the family-based categories:

"D. RETROGRESSION OF FAMILY CUT-OFF DATES

Continued heavy applicant demand for numbers in the Family Fourth preference category has required the retrogression of the Worldwide, China-mainland born, Dominican Republic, and India cut-off date for the month of February.

It has also been necessary to retrogress the Dominican Republic F2B category for the month of February.

Further retrogressions cannot be ruled out should demand continue at the current levels for some categories and countries. 

Please Note:   Applicants entitled to immigrant status become documentarily qualified at their own initiative and convenience. By no means has every applicant with a priority date earlier than a prevailing cut-off date been processed for final visa action.  On the contrary, visa allotments are made only on the basis of the total applicants reported documentarily qualified each month, compared with the amount of available numbers.  For example, during the past month, over 17,300 of the applicants who have become documentarily qualified in the Family preference categories have priority dates earlier than the cut-off dates established for January.  Demand for visa numbers can fluctuate from one month to another, with the inevitable impact on cut-off dates.  

Following are examples of possible cut-off date actions based on demand:

Numbers Available	Demand with Priority Dates Prior to the Current Cut-off	Next Month’s Cut-off Date Will
3,000 3,000 3,000	1,000 3,000 5,000	Advance Remain the same Retrogress"

 

 

Immigration Legislation: Outlook for 2011-2012

Immigration legislation in Congress ended on a sour note in 2010.  The DREAM Act, after narrowly passing in the House of Representatives, failed to get the necessary 60 votes in the Senate required to overcome a threatened GOP filibuster.  Comprehensive immigration reform never even came to a vote in the last Congress.

What will the outlook be for immigration legislation in the 112th Congress which convenes beginning on January 3, 2011?

The biggest change will be in the House of Representatives where the majority, and the committee chairmanships, will change from Democrats to Republicans.

 

Representative Lamar Smith

The new Chairman of the House Judiciary Committee will be Representative Lamar Smith (R-TX).  On December 9th, Rep. Smith outlined his priorities for immigration policy as follows:

"The enforcement of our immigration laws is critical to the security and prosperity of our state and nation. The House Judiciary Committee should enact policies that will better secure our borders and discourage illegal immigration, human smuggling and drug trafficking.

"In the past five years, more than 28,000 people have been killed along the border because of drug-related violence. That includes more than 1,000 law enforcement personnel who have died.

"Without increased border security, we risk letting drug-related violence spill over the border. American citizens should not have to fear for their lives on U.S. soil. If the federal government enforced its immigration laws, we could better secure the border and better protect U.S. residents.

"Texans also should not have to compete with illegal immigrants for scarce jobs.

"According to the U.S. Bureau of Labor Statistics, one million citizens and legal immigrants currently are looking for work in Texas. At the same time, according to a 2010 Pew Hispanic Center study, there are one million illegal immigrants working or looking for work in Texas. That is unfair to legal workers.

"Worksite enforcement efforts have fallen dramatically since President Obama took office--administrative arrests are down 79 percent from 2008, criminal arrests are down 62 percent, and convictions are down 70 percent. That means it is easier for illegal immigrants to keep jobs that rightly belong to U.S. citizens.

We could free up millions of jobs for Americans and legal immigrants if we enforced our immigration laws against illegal workers..."

Rep. Smith supports:

• State and Local Enforcement of Federal Immigration Laws (H.R. 4471)
• Mandatory E-Verify on Employers (H. Res. 1026)
• End to Birthright U.S. Citizenship (H.R. 1868)

He is staunch opponent of Comprehensive Immigration Reform and the DREAM Act both of which he refers to as "amnesty".  In 1996, he unsuccessfully attempted to greatly reduce the number of legal immigrants to the U.S.  He was the chief architect of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, a law which imposes penalties on immigrant families and strips thousands of immigrants of their ability to appeal the decisions of the USCIS and the BIA to the Federal Courts.  

Where does Rep. Smith stand on legal immigration? 

He has voted against increasing the number of employment-based immigrant visas.  He believes that the number of refugees admitted to the U.S. is too large, and he opposes the visa lottery.

 

Representative Steve King

The person likely to become the Chairman of the House Immigration Subcommittee is an immigration restrictionist with enforcement-only voting record.

Representative Steve King (R-IO) agrees with Rep. Smith on the need for strong border and workplace enforcement, mandatory e-verify and ending birthright citizenship.  He believes that it would be easy to increase border security by such means as electrifying the border fence.  As he recently stated in the House chamber: "We do that with livestock all the time."

What does Congressman King have to say about legal immigration?

"Immigrants have made, and will continue to make, a valuable contribution to our nation.  I will work to develop an immigration policy that aids in  the assimilation of newcomers by ensuring that the United States does not admit more immigrants than it can reasonably accommodate.  Assimilation is valuable to immigrants who benefit from our shared American culture of personal responsibility, freedom, and patriotism.  The values shared by our civilization, founded on a heritage of western civilization, religious freedom and free enterprise capitalism, serve immigrants and native-born alike.  I am concerned that the recent rise in immigration levels in this country will make it difficult for newcomers to assimilate and find jobs.  We must ensure cultural continuity for our great nation."

 

Conclusion 

So, should immigrants and their advocates give up on the idea that any positive immigration legislation will be signed into law during the next two years?

Not so fast.

Members of Congress, whatever their ideology, must represent the interests of their constituents.

You may be surprised to learn that Rep. Smith once voted to increase the H-1B cap.  Of course, one of the largest computer companies in the world has a plant located in his district.

When Rep. Bobby Rush (D-Il), a former Black Panther from the south side of Chicago, pushed for a special bill to allow a hospital in his poverty-ridden district to employ foreign-born nurses, Rep. Smith agreed to co-sponsor a bill with him which created the H-1C program for RNs.  And although only a handful of hospitals across the country met the law's strict criteria, some of the qualifying hospitals are located in Rep. Smith's district.

And when a hospital in his district desperately needed to hire a Canadian physician, Rep. Smith introduced an amendment to the immigration laws in 1991 which lifted the ban on foreign-born physicians being able to qualify for H-1B visas. 

So, perhaps the door is not completely closed to any positive immigration legislation in 2011 and 2012.

Time will tell.

January 2011 Visa Bulletin: The Great Retrogression

It's been several years since the employment-based preference categories developed huge backlogs.  However, no one was prepared for today's announcement from the State Department that most of the family-based categories will retrogress between one and three years beginning on January 1, 2011.

Consider the worldwide categories: Beginning in January 1, the 1st preference category (unmarried sons and daughters of U.S. citizens) goes from a 5-year to a 6-year wait. The story is much, much worse in the 2A category (spouses and children of permanent residents) where the wait expands from a mere 4 months to 3 years, a 9-fold increase. In the already beleaguered 2B category (adult sons and daughters of permanent residents), the wait increases from 5 1/2 to nearly 8 years. For married sons and daughters of U.S. citizens (3rd preference category) does the wait remain roughly the same: 9 years.

What does the State Department have to say about all of this:

"As reported in the December Visa Bulletin (number 27), the cut-off dates for most family preference categories advanced at a very rapid pace during the past two years. Those movements have resulted in a dramatic increase in the level of applicant demand received in recent months. This has required the retrogression of many Family preference cut-off dates for January in an effort to hold number use within the various numerical limits. Further retrogressions cannot be ruled out should demand continue at the current levels" (emphasis added).

 If you are one of the large number persons negatively affected by these changes, you can console yourself by thanking God that you were not born in either Mexico or the Philippines, where the waiting times are considerably longer.  If you are a permanent resident and wish to sponsor your husband or wife who was born in Mexico, be prepared to be separated nearly 6 years.  For Filipinos, most of the waiting times for family members will be an incredible 12 to 23 years come 2011.

There will be no similar retrogression in the employment-based categories come January, probably because the U.S. economy is stagnant, and employers are sponsoring very few foreign-born workers.  In any case, the waiting times are already at record highs in the 3rd preference category (professionals, skilled and unskilled workers), particularly if you were born in mainland China or India.  In fact, the waiting times in the 2nd preference category (persons with advanced degrees) are a disaster if you were born in either of these two populous countries.

FAMILY CATEGORIES

EMPLOYMENT CATEGORIES

The coming retrogression provides a golden opportunity for the next Congress to ease immigration restrictions which divide families and prevent legal workers from becoming permanent residents, often solely because of their country of birth.  As I write these words, many members of Congress are railing against the DREAM Act, characterizing it as "a backdoor amnesty" for undocumented students.

Will the Congress be more sympathetic to legal immigrants who remain separated from their spouses and parents for years simply because they are abiding by the rules? Perhaps, but I for one am not holding my breath.

   

 

Persons in Removal Proceedings have Right to A-Files

On November 10, the U.S. Court of Appeals for Ninth Circuit held, in Sazar Dent v. Holder, that a person in removal/deportation proceedings has a right to receive a copy of his administrative file.

The case involves a man born in Honduras who was brought to the U.S. as a child by an American woman, and who was later adopted by her.  When the government tried to deport him for a criminal conviction, he argued that he was an American citizen by virtue of his adoption.  The Immigration Judge and the BIA both agreed that he had been adopted, but found that he had failed to prove that his adoptive mother was a U.S. citizen by birth.

When he departed and re-entered the U.S., the government charged him criminally for re-entering the U.S. illegally after being ordered deported.  However, they dropped the criminal case after it was demonstrated that he was never served with the BIA's order.  During these criminal proceedings, he learned that his administrative file ("A-file") contained information about both his adoption and his mother's citizenship status.

Documents present in his A-file which were not given to him included a naturalization application that his adopted mother had submitted on his behalf in 1982, and a copy of an Application to File Petition for Naturalization that he had submitted in 1986.  Neither the IJ nor the BIA was aware of these documents when they issued their decisions ordering him removed from the U.S.

The Court held as follows:

"Dent argues that because he was not provided with the documents in his A-file, he was denied an opportunity to fully and fairly litigate his removal and defensive citizenship claim.  We agree."

The Court went on to hold more generally that, under 8 U.S.C. 1229a(c)(2)(B), "Congress has provided that that to meet his burden of proof in removal proceedings, 'the alien shall have access' to his entry document 'and any other records and documents, not considered by the Attorney General to be confidential, pertaining to the alien's admission or presence in the United States."

The Court rejected the government's contention that to obtain a copy of his A-file, a person in removal proceedings is required to file an application under the Freedom of Information Act (FOIA) stating that "aliens in removal proceedings might not get responses to their FOIA requests before they were removed."

Will the government now provide each respondent in removal proceedings with a copy of his or her A-file?  We'll believe it only after we see it!

Keeping the DREAM Alive

Congress may vote on the DREAM Act as early as this week.  Unless the DREAM Act passes in lame duck session, it is unlikely that the new conservative Congress will pass this important piece of legislation into law during the next two years.

All around the country, something incredible is happening.  Student leaders across the U.S. are coming out and declaring that they are present in the U.S. without papers.  This, of course, could lead to their being arrested and deported, and yet, they continue to do so in ever greater numbers.

Consider David Cho, a 21-year-old senior at my alma mater, UCLA. David, who plays 7 musical instruments and conducts the 250-member UCLA marching band, did not even know that he was in the U.S. ilegally until he was accepted at UCLA.  That was when his father first told him that he was a citizen of South Korea and that the family was undocumented.

Because of his status, David cannot get student loans or scholarships or even a drivers license.  He sleeps on friends couchs or at the UCLA Library.  He works 30 hours per week tutoring other students for cash.

Nevertheless, he has a double major in international economics and Korean and maintains a GPA of 3.6.

David is far from unique.  The undocumented students at UCLA have told me their stories.  They have formed an organization and they share a number of important characteristics.  They are excellent students.  They major in science, business, pre-law and pre-medicine.  They were brought to the U.S. by their parents as children, and frequently did not learn about their undoucumented status until they were accepted at UCLA.

Unless Congress passes the DREAM Act, they will not be able to continue their education or to get jobs in the U.S.

They are a valuable resource whose talents are being wasted.

The DREAM Act has garnered wide bipartisan support in the past.  It is time for Congress to act in the interests of our country and these students, and pass the DREAM Act now. 

"New" EOIR Website: What's New Except the Design?

On October 20, the Executive Office for Immigration Review (EOIR) rolled out its new website.

The EOIR is composed of the (1) Immigration Courts; (2) Board of Immigration Appeals (BIA) and the (3) Office of the Chief Administrative Hearing Officer (OCAHO).

The EOIR announced the coming of the new website in a press release dated October 19.  The agency stated as follows:

 

"The EOIR website has been a prominent site for respondents, representatives, nongovernmental organizations, the press, and the public to gain updated information about the agency. The new site offers a clean design that mirrors the look and feel of the U.S. Department of Justice's website and offers significant improvement in regard to navigation and functionality.

 Features include an Action Center with tools for visitors to find a representative, an immigration court, and a free legal service provider. The public may also submit a complaint regarding an immigration judge online and review statistics related to all complaints received. The new site also provides prominently placed links to the practice manuals for the Office of the Chief Immigration Judge and Board of Immigration Appeals, immigration-related forms, the Immigration Judge Benchbook, and the Virtual Law Library."  

 

The look of the new website mirrors that of the Justice Department's website, of which the EOIR website is a subsection. 

The content of the website is largely the same as the old EOIR website.  It contains such helpful features as the:

1) Immigration Courts Practice Manual - This is a useful guide for persons who practice in the Immigration Courts;

2) The BIA Practice Manual - This guides persons who practice before the BIA;

3) The Virtual Law Library - This useful feature contains links to both of the above guides as well as to the latest precedent decisions, Federal Register notices, Immigration Judge Benchbook and much more.  One can subscribe and receive e-mails from the EOIR whenever there is a new precedent decision, a new Immigration Judge is sworn-in or presides over a naturalization ceremony, or the list of disciplined private practitioners is updated.

Unfortunately, despite the new website, it appears that the EOIR webmaster does not regularly check to see that all of the links are working and are up-to-date.  For example, click on "Related Links" in the upper right hand corner of the Virtual Law Library and you will see that the link to the State Department's Visa Bulletin is broken.  Also,  there is a link to the State Department's "2008 Human Rights Report" even though the 2009 version of the report has been online since last March. The same applies to the link to the State Department's 2008 Report on International Religious Freedom.

The site allows readers to download copies of EOIR forms and instructions for free and provides contact information for Immigration Courts across the country as well as to EOIR headquarters.

The EOIR Action Center allows readers to:

1) File Complaints Against individual Immigration Judges;

2) Find a Representative;

3) Find an Immigration Court; and

4) Find a Free Immigration Provider.

Some of the above information is misleading.  For example, the reference to "free" immigration providers is misleading since the providers listed are not free, and there is no real quality control over who is listed. 

One new feature is a slide show regarding Immigration Judge Complaint statistics received from October 1, 2009 and September 30, 2010.  EOIR received 166 complaints concerning 88 Judges.  Of the 152 complaints which have been resolved, 52 was dismissed, 21 were "concluded" due to the Judge's retirement or resignation, 78 resulted in unspecified "Informal Actions" and only 2 involved "Disciplinary Actions" which include reprimands, suspensions and removals.

In the past, we have noted the EOIR website is difficult to navigate because it has no site map or search engine.  Unfortunately, the new site does little to resolve these issues.  Since the search engine is for the entire Justice Department website, it is less than helpful for finding specific information on the EOIR subsection of the site. Likewise, the site map applies to the entire Justice Department website.

The Justice Department has its own Facebook, MySpace, YouTube and Twitter pages, but if any of these pages contain any information about the EOIR, we were unable to find it.

All in all, despite the new and improved look, the content on the new EOIR website remains largely the same. 

 

USCIS Should Follow BALCA on Posting Requirement

Can a Saturday or a Sunday be a "business day"? 

It depends on who you ask.  The U.S. Department of Labor says yes, while the Department of Homeland Security thinks otherwise.  What's an employer to do?

On October 12, the Board of Alien Labor Certification Appeals (BALCA) issued a decision "In the Matter of Il Cortile Restaurant".  This case involves a PERM application for a chef, and has been bouncing around in the Labor Department (DOL) for three years.

In May 2007, the employer posted a Notice of Filing (NOF) of a PERM application for ten consecutive days.  The Certifying Officer (CO) denied the PERM application citing a DOL regulation which requires Notices of Filing to be posted for ten consecutive "business" days.  The restaurant explained to the CO that it was open for business every Saturday and Sunday, that these days were the busiest times of the week and that all employees are required to work on weekends.

However, the CO was not persuaded.  He denied the PERM application on the ground that "for the purposes of the Permanent Labor Certification program, business days as related to the posting of the NOF are defined as Monday through Friday, excluding weekends and Federal holidays."

The CO forwarded the case to BALCA, arguing that defining business days as actual days that the employer is open would make the administration of the NOF provision unfeasible.

BALCA started, wisely enough, by examining the DOL regulation, 20 C.F.R. 656.10(d)(1)(ii), which imposes the requirement that the NOF be posted for ten consecutive business days.  Does the regulation define the term "business days"?  No.

Next, BALCA examined the purpose of the regulation. Here, they looked to the Federal Register notice which announced the publication of the regulation, and concluded that "the purpose of the Notice of Filing requirement is to ensure that the employer's employees and other interested persons are notified that it is filing an application for a permanent alien labor certification."

BALCA went on to consider whether the purpose of the regulation would be accomplished by considering Saturdays and Sundays to be business days: "If the Notice of Filing is posted for ten consecutive days when employees are on the worksite and are able to see the Notice of Filing, the purpose of the Notice of Filing requirement is fulfilled.  As long as an employer has employees working on the premises on a Saturday, Sunday or holiday, those days are business days for the purposes of complying with the Notice of Filing posting."

Based on this reasoning, BALCA vacated the CO's denial of the PERM application on the ground that "fundamental fairness" requires that the employer be given the opportunity to demonstrate that Saturdays and Sunday are business days for the restaurant.

All of which brings us to the DHS, specifically the USCIS.

Not all occupations are subject to the general requirement that employers must submit a PERM application.  Specifically, according to a DOL regulation, when an employee is a member of a shortage (aka "Schedule A") occupation, no PERM application is required.  There are only two Schedule A occupations, Registered Nurses and Physical Therapists. When sponsoring an RN or a PT for permanent residence, an employer skips the DOL and submits a visa petition to the USCIS.  The employer is subject to the same requirement that a Notice of Filing be posted for ten consecutive business days. 

Here is the rub: The USCIS, like the CO in "In the Matter of Il Cortile Restaurant" has always maintained that weekend days were not business days for purposes of ten consecutive business day regulation.  Now that the BALCA has ruled that if the employer is open for business on weekends, Saturdays and Sundays are business days, the USCIS should conform its interpretation of the DOL regulation with BALCA's.

For years, the USCIS has denied visa petitions submitted by hospitals (which are open seven days a week, 52 weeks a year) on behalf of Registered Nurses and Physical Therapists on the ground that weekend days do not count as business days.

This policy has had serious negative immigration implications particularly for RNs since, for the most part, RNs have no underlying nonimmigrant status.  When USCIS denied their I-140s, the agency also denied their I-485s leaving all of them unlawfully in the U.S.  or placing them in removal proceedings.  Further, the USCIS maintains that the RNs affected may not reapply for adjustment of status under section 245(k).  This is because the agency interprets the word "status" in section 245(k) to mean "nonimmigrant status", and most RNs lack any underlying nonimmigrant status.

Therefore, it is a matter of "fundamental fairness" that the USCIS not only change its policy toward what constitutes a "business day" for NOF purposes, but that the agency, on its own motion, reopen all improperly denied I-140 visa petitions and I-485 applications for adjustment of status for RNs, PTs and their family members who were prejudiced by the USCIS' improper application of the law.

New BIA CSPA Decision

Being involved in a pending nationwide class action lawsuit regarding the Child Status Protection Act (CSPA) tends to focus one's attention on the operation of this statute.  I try to read every CSPA decision rendered by a Federal Court or by the Board of Immigration Appeals (BIA).  (Our final brief in the class action lawsuit was submitted to the 9th Circuit Court of Appeals on October 5th.  We eagerly await the scheduling of oral arguments by the Court.)

The day after we submitted our brief, the BIA, in Matter of Murillo (A099 252 007) interpreted the phrase "sought to acquire" in section 3 of CSPA in an expansive matter, rejecting the argument of the DHS which would have resulted in Mr. Murillo being removed from the United States and separated from his parents for many years.

Here is the story.

Jose Jesus Murillo was born in Mexico on May 2, 1984.  His father became a lawful permanent resident of the U.S. and petitioned his wife on October 16, 1995 under the family-based 2A category.  Jose, being only 11 years of age was included as a "derivative beneficiary".  The INS approved the petition on August 9, 1996.

A visa number became available to Jose and his mother on June 1, 2003 when Jose was 19 years old.  However, the family's attorney did not file an application for adjustment of status under section 245(i) for more than one year.

The twist in the story is that CSPA does not require that Jose's application for permanent residence be "submitted" or "filed" before his priority date becomes current.  Rather, CSPA requires that he must have "sought to acquire" permanent residence within one year of his priority date becoming current.  This means, in Jose's case, that he must have taken action to become a permanent resident before June 1, 2004.

The record is clear that he hired an attorney to file an application for adjustment of status for him in April 2004.  On April 30, 2004, Jose obtained a money order for filing fees payable to the INS.  However, his attorney did not actually file the I-485 until November 26, 2004.  This application was returned by the USCIS due to an error in the filing fee.  The I-485 was resubmitted on December 18, 2004 and once again on February 1, 2005.

The I-485 was denied on the ground that Jose had not "sought to acquire" a green card within a year after his priority date became current, and he was placed under removal proceedings before an Immigration Judge.  The Judge granted Jose's application for adjustment of status on the ground that he had met the "sought to acquire" requirement of CSPA by hiring an attorney to prepare and submit an I-485 on his behalf within one year of his priority date becoming current.

The DHS appealed the Judge's decision to the BIA.  They argued that a person can only be found to have "sought to acquire" permanent residence if they "filed" their application for permanent residence within the one-year period.

Jose's attorney, and Mary Kenney, who authored a friend of the court brief on behalf of the American Immigration Council (AIC), argued that if Congress intended that a person must "file" an I-485 within one year of their priority date being current, they would have used the word "file" or "submit" or "apply" in writing CSPA.  They cited numerous other laws where Congress did use these words. 

The BIA held that they were not bound by the DHS' interpretation of a statute.  Further, they held that if Congress meant "sought to acquire" to mean "filed", Congress would have used the word "filed" or a similar word, but Congress chose not to do so.  The Board examined the Congressional intent in passing CSPA and found that it was passed to "bring families together".

Finally, the Board quoted a U.S. Court of Appeals decision in Padash v. INS, 358 F.3d 1161, 1172 (9th Cir. 2004) which held that CSPA should be "construed so as to provide expansive relief to children of United States citizens and permanent residents."

The Board held in favor of Jose Murillo.  However, this decision is not a precedent, meaning that it only applies to Mr. Murillo, not to anyone else.  Matter of Murillo is similar to a 2004 Board decision interpreting the words "sought to acquire", Matter of Kim.

The USCIS has now had over eight years to promulgate regulations to implement CSPA, but has failed to do  so. We urge the Board to designate Matter of Murillo as a precedent in order to clear up any remaining uncertainty about the meaning of the words "sought to acquire" in CSPA.

USCIS' New Citizenship Resource Center

The USCIS has added a new feature to its website, entitled the Citizenship Resource Center.

I am impressed by this new service and I'll tell you why.  Back in the 1970s when I served as an INS Citizenship Attorney, I was appalled that the government had no program to help immigrants interested in becoming U.S. citizens.  In fact, applicants had to line up at the Federal Building early in the morning, and wait in line for hours simply to obtain an application form. 

I developed a program where government attorneys visited evening Citizenship classes in Southern California.  They spoke and answered questions about the Citizenship process, handed out Applications for Naturalization and helped students prepare for their naturalization interviews.

However, after I left the Citizenship Branch in 1980, the whole program fell apart.  At that time, there wasn't even a government-issued brochure about the Citizenship process.

For the past few years, the INS and USCIS websites have allowed Citizenship applicants to download the N-400 form for free, take practice history and government tests online and become familiar with the naturalization process.

This summer, the USCIS website took this a further step, and added the Citizenship Resource Center (CRC) to their website. 

For students, the CRC allows them to

•  Learn about Naturalization
•  Apply for Citizenship
•  Study for the Test
•  Find a Citizenship Case
•  Attend an Information Session
•  Understand their Rights and Responsibilities

For teachers, the CRC provides

• Classroom Tools
• Online Training Resources
• Naturalization Information
• Training Workshops

For organizations, the CRC lists

• Grant Programs
• Grant Resources
• Grant Recipients
• Promising Practices
• Training and Professional Development
• Supplemental Resource Links

The CRC provides information about the history and government test in several languages including English, Spanish, Chinese, Tagalog and Vietnamese.  The site includes videos and audios in multiple languages explaining the naturalization process.

The USCIS regularly holds free information sessions for permanent residents in different parts of the country. These sessions cover naturalization eligibility, testing, and citizenship rights and responsibilities.  A schedule of these sessions is listed on the website.  For October and November, the 14 sessions listed on the schedule were all east of the Mississippi River. 

The website links to the Literacy Information and Communication System (LINCS).  I inserted my zip code and tried to find a Citizenship class within 5 miles of my house.  Although I founds a number of centers that would help with math, ESL, GEDs, etc., I did not find a Citizenship class.

The site also contains a 16-minute video entitled "The USCIS Naturalization Interview and Test" and an 11-minute video entitled "Becoming a U.S. Citizen: An Overview of the Naturalization Process".

All in all, the Citizenship Resource Center is a great place for persons to learn about the process of becoming a citizen of the U.S.

We link to the Citizenship Resource Center from the "Obtaining U.S. Citizenship" page on our website.

Kudos to the USCIS.