Archive for the ‘Legal Topics’ Category

Brief introduction to US Immigration system

Wednesday, December 30th, 2020

The American Immigration Council has a concise overview of our immigration system. I recommend it.

The short document reflects how complicated and un-directed our system is. For instance, it says that there is a legal maximum of 675,000 green cards issued a year, yet for most years some one million or more green cards have been issued.

The overview does not refer to any planning or assessment function of the system, because no such function exists or is mandated by Congress. Nor does the overview discuss legal enforcement, despite the reality that a quarter of foreign born persons in the country are unauthorized to be here.

Federal Appeals court rules against Trump public charge rule

Saturday, December 5th, 2020

CNN reports that on December 2, in a 2-1 ruling, the Ninth Circuit continued the decision of other courts to place an injunction of implementation of the Trump public charge rule. I have posted (such as here) on the changes to the public charge rule, which raised the barrier to persons from obtaining permanent legal status. The changes in effect said that public assistance (such as subsidized housing and food vouchers) which close to half American households use over any period of five or so years are off limits to immigrants who seek green cards – either if they used them or if U.S. Citizenship and Immigration Services decided there was a high likelihood of their use after a green card was issued.

Per CNN the court concluded that the rule causes financial harm to states and doesn’t promote self-sufficiency as the administration has suggested. The panel also argued that the administration failed to explain the abrupt change in policy. “Addressing DHS’s contention that the statute’s overall purpose is to promote self-sufficiency, the panel concluded that providing access to better health care, nutrition, and supplemental housing benefits is consistent with precisely that purpose,” wrote Judge Mary M. Schroeder for the majority.

The court cited a prior decision to hold up the implementation of the rule: “The Plaintiffs do not argue, and we do not hold, that the receipt of various kinds of public benefits is irrelevant to the determination of whether a non-citizen is likely to become a public charge. But defining public charge to mean the receipt, even for a limited period, of any of a wide range of public benefits – particularly . . . ones that are designed to supplement an individual’s or family’s efforts to support themselves, rather than to deal with their likely permanent inability to do so – is inconsistent with the traditional understanding.”

The court also faulted the administration for its “abrupt” reversal of policy without careful analysis of reasons.” The plaintiffs argue that DHS failed the test in three principal respects: It failed to take into account the costs the Rule would impose on state and local governments; it did not consider the adverse effects on health, including both the health of immigrants who might withdraw from programs and the overall health of the community; and it did not adequately explain why it was changing the policy that was thoroughly explained in the 1999 Guidance.”

The court decision is here.




Supreme Court to consider unauthorized resident issue

Sunday, November 29th, 2020

On Monday November 30 the Supreme Court hears the arguments over whether unauthorized persons can be excluded from Congressional apportionment. This long posting will brief you on the issue.

Before delving into the current issue, I note that the Trump Administration has been trying from the start to reshape elections through innovative use of census data. I posted here about an attempt to apportion Congressional seats by excluding all non-citizens, authorized and unauthorized.

What is at stake.

The way in which the 435 Congressional seats are divided up among the states when unauthorized persons are excluded from the apportionment process.

Why it matters.

I posted on July 21 that Brookings demographer William Frey opined that only states where the undocumented population is so proportionally large that they would lose seats are California (lose 2 seats of 53), Texas (lose 1 seat of 36) and Illinois (lose 1 of 18). Florida would come close to losing 1 of 27 seats.

What the Trump Memorandum says, plus to relevant passages in law.

Trump Administration’s action (from a suit by New York State): On July 21, 2020, President Trump issued a “Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census” The Memorandum announces a “policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status.” It directs the Secretary of Commerce to provide the President with information to carry out this policy. And it declares the President’s intent to make a determination of the “whole number of persons in each State” that will in fact exclude the undocumented immigrants he has targeted throughout his administration.”

I posted here about the statistical methods to be used to estimate the unauthorized population.

Text of Article XIV § 2 of the Constitution: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.

4. 13 U.S.C. 141(a)-(b) provides: (a) The Secretary shall, in the year 1980 and every 10 years thereafter, take a decennial census of population as of the first day of April of such year, which date shall be known as the “decennial census date”, in such form and content as he may determine, including the use of sampling procedures and special surveys. In connection with any such census, the Secretary is authorized to obtain such other census information as necessary. (b) The tabulation of total population by States under subsection (a) of this section as required for the apportionment of Representatives in Congress among the several States shall be completed within 9 months after the census date and reported by the Secretary to the
President of the United States.

What the opponents of the Memorandum say.
New York State’s brief July 24, 2020 : The President’s new policy and any actions Defendants take to implement it unequivocally violate the Fourteenth Amendment. The constitutional mandate to base apportionment on “the whole number of persons in each State” could hardly be clearer, and the Supreme Court has long recognized that undocumented immigrants are “persons” under the Fourteenth Amendment, Plyler v. Doe, 457 U.S. 202, 210 (1982). The Memorandum’s open disregard of the Constitution’s plain text is reason enough to invalidate it and to prevent Defendants from taking steps to carry out its unlawful policy.”

How the Justice Dept is defending the Memorandum.
Quoting from its brief: “It has long been understood that, under the governing legal provisions, the phrase “persons in each State” means “inhabitants” (or “usual residents”), and vests discretion in the Executive Branch to ascertain how that standard applies to particular categories of persons with debatable ties to a State.

The Justice Department says that “person” in state “has long been understood to cover only a State’s “‘inhabitant”…”As history, precedent, and structure indicate, the President need not treat all illegal aliens as “inhabitants” of the States and thereby allow their defiance of federal law to distort the allocation of the people’s Representatives. To the contrary, that an alien lacks permission to be in this country, and may be subject to removal, is relevant to whether he has sufficient ties to a State to rank among its “inhabitants.”

The DOJ goes on: “Founding-era dictionaries defined “inhabitant” as one who “dwells or resides permanently in a place…. This understanding of “inhabitants” is also consistent with Franklin’s observation that the concepts of “‘inhabitan[ce]’” or “‘usual reside[nce]’” can mean “more than mere physical presence” and can connote “some element of allegiance or enduring tie to a place.”

Most unauthorized persons have been living (or, have been “inhabitants”) in the U.S. for over 10 years.
Pew Research reports that “A rising share of unauthorized immigrants have lived in the U.S. for more than a decade. About two-thirds (66%) of unauthorized immigrant adults in 2017 had been in the U.S. more than 10 years, compared with 41% in 2007. A declining share of unauthorized immigrants have lived in the U.S. for five years or less – 20% of adults in 2017, compared with 30% in 2007. In 2017, unauthorized immigrant adults had lived in the U.S. for a median of 15.1 years, meaning that half had been in the country at least that long.”

See this Washington Post article.

More on Public Charge, Part Two

Tuesday, September 29th, 2020

Prem Kumar of Visa Tutor tells me more about the Public Charge Rule:

Broad application When a US citizen or legal permanent resident sponsors family such as parents, spouse, children, and siblings, all the applicants are subject to public charge criteria. For aging parents, let’s say, it may be difficult to get private health insurance if they’re new to the U.S. The family category makes up the majority of green card applications.

Catch-22 for health insurance The I-944 Form indicates it’s a strong factor to have health insurance or enough assets to pay for “foreseeable medical expenses”. Most foreign applicants, however, don’t have health coverage nor the assets to pay for expenses before they enter the US or begin to work. How can the US government expect them to have health coverage before they become eligible? This confusion is causing many applicants to buy expensive private temporary health coverage (“visitor’s coverage”).

Adjusting status Let’s say you come on a tourist visa, and marry a U.S. national and want to adjust your status to permanent resident. To apply for a visitor visa, you’re not subject to public charge to enter the US. However, if you choose to adjust status, you must apply for a green card under which public charge applies.

More on Public Charge, Part One

Thursday, September 24th, 2020

I have posted about the toughened Public Charge rule of the Trump Administration, which went into effect in February but has been to some degree suspended during the pandemic. I asked Prem Kumar of Visa Tutor to describe how he sees its impact.

Public Charge is an immigration law provision which requires an immigrant or green card applicant to be self-sufficient or have a sponsoring family member or organization. The goal is to only grant a visa or green card to those applicants who are not likely to fall upon government financial assistance in the future.

Public charge laws apply to all immigrant visas, some non-immigrant visas, and nearly half a million green card applicants, with certain exemptions. Historically, it accounts for 25% of visa denials, where officers believe the immigrant does not have adequate sponsorship in the US, or a high “likelihood of becoming a public charge”.

To put the new version of the Rule in context, In just a single year, about 25% of U.S.-born citizens receive a benefit included in the final rule’s public charge definition. Over the 1997-2017 period, some 41% to 48% received one of the benefits included in the Rule’s new public charge definition.

State Department consular officers abroad and USCIS officers ask about:

Income The applicant or sponsor is compared to the Federal Poverty Guidelines. They must be the minimum 125% income level, however, officers are allowed to require up to 250%.

Health insurance  Although it’s not an automatic disqualification not to be covered, the language in the “Final Rule” makes it clear that it is a “heavily weighted negative factor” in the assessment.

History of Means-tested benefits  the U.S. can reject any applicant who has used means-tested benefits such as SNAP, TANF, some Medicaid, or other cash assistance. It even allows officers to determine if the applicant is “more likely than not” to require such benefits.

Disclosure of background information The officer is required to ask for financial status such as loans, unpaid debts, assets, even child support, and so on.

The Love Connection, Part Two

Friday, September 11th, 2020

Roughly 40,000 persons each year are awarded a visa (“K”) to come to the U.S. and marry a U.S. citizen.K visas are only available to partners of US citizens, not permanent residents.

This process best serves international love birds who prefer not to go through the hassle of a marriage overseas. Marriage in different parts of the world can be long, expensive, or burdensome especially when dealing with local authorities. In addition, families of US petitioners find it inconvenient to travel to distant parts of the world to attend weddings.

One such example is in Morocco, where local authorities require numerous paperwork, a residency period for Americans, and often a bribe to “process” the marriage paperwork.

For those in the LGBT community the K visa may be the only way to marry. Outside of western Europe and the Commonwealth countries, same sex marriage is almost everywhere illegal.

What is needed for the overseas party to get a K visa, which gives the person 90 days in the U.S. to marry, after which the now married foreigner has access to permanent residency or citizenship? The foreign partner must produce documentation, get a medical exam, police / background clearance, among much more before attending an in-person visa interview at a U.S. consulate.

What does Citizenship and Immigration Service do to review of the intended marriage is a sham that will be shortly followed by divorce? Following marriage, the couple is given a conditional period of 2 years in which the USCIS evaluates to see if the marriage was bona fide or a sham meant for immigration benefits only.

The timeline from start to finish, including the consular interview, takes an average of 5-10 months.

For a more complete description of the process go here.


The Love Connection, Part One

Tuesday, September 8th, 2020

How do spouses, children and fiances get into the United States? I asked Prem Kumar, who runs Visa Tutor, to describe what happens. Here we talk about the process for spouses and children. In the next installment, we discuss fiances.

Anywhere from 150,000 to 200,000 visas are issued every year to spouses of U.S. citizens and their children. The U.S. sponsor petitions his or her family and provides necessary documentation before the foreign spouse and children attend an interview.

The approval rate for these visas (CR1/IR1 and CR2/IR2) is very high, about 90%. But the entire process can take up to two years to complete.

The person in the United States needs to be either an American citizen or a permanent resident. Proof of marriage is required. Both the U.S. and foreign spouse cannot have a disqualifying criminal record.

Further, there has to be evidence that the spouse and children will not be a financial burden on government assistance – the public charge rule. The most common problem is that petitioners don’t meet minimum income requirements or aren’t able to provide enough assets to qualify.

The foreign spouse and any accompanying children attend an in-person interview. They present documentation to prove eligibility and answer any questions an immigration official may have regarding the relationship. Common questions include: “When did you marry? How? Where? Where does your spouse work?”

For a more complete description, go here.

Marriage based green cards

Wednesday, July 22nd, 2020

Asel Mukambetova of SelfLawyer responds to my request to summarize how marriage-based green cards are handled:

The time between an individual’s submission of an application for a green card and the date of award varies greatly by circumstances. Assume you have married a person without a green card. It will take about 12 to 13 months to obtain a green card for your spouse. After receiving a green card, your spouse will generally not be eligible for citizenship until 3 years have passed (if you are a U.S. citizen).

If you are a U.S. citizen sponsoring your unmarried son or daughter over 21, the waiting time is 58.5 Months to 76 Months. For a son or daughter under the age of 21 (including stepchildren), the waiting time is 12 months to 13 months. (The duration estimates cited above were typical as of month/year.)

The cost of obtaining a green card for a family member includes fees and attorney costs assuming you use an attorney. The minimum cost of government fees to sponsor a relative is $1,400-$1,900 per immigrant. Immigration attorney fees can range from $935 to $4,000 per immigrant.

Why Trump must beat up on sanctuary cities

Monday, February 17th, 2020

He must attack sanctuary cities because the number of deporations is low — below Obama levels. He has been trying to remove more people from the interior of the country and the sanctuary city movement appears to be thwarting that.

ICE removals in the two full years Trump administration (FY2018-2019) have average 262,000, compared with 370,000 in the seven full years of the Obama administration. The number of removals in FY 2019, 267,000, was lower than every but one full year under Obama.

Under Obama, removals became increasingly focused on persons with criminal records, rising from about two-thirds to over 90%, which appears to have continued. ICE boasted that is FY 2019 there was a 110% increase in removal of “family unit members.”

There are about 11 million unauthorized persons in the U.S.

What has changed if anything?  The Migration Policy Institute in early 2018 did a deep study and concluded that there has been a “sea change in interior [ie not border[ enforcement, though the total numbers have not changed.

It said that “sanctuary policies are curbing ICE enforcement. ICE relies heavily on state and local law-enforcement agencies to help identify and arrest noncitizens from removal. During the first 135 days of the Trump administration, according to MIP’s analysis. 69% of ICE arrests nationwide were based on transfers from the criminal justice system, mostly state prisons or local jails. This is a decline from the FY 2008-2011, during the peak of ICE activity, when state and local prisons and jails were the origin for more than 85% of ice arrest. The decline is attributable to reduced cooperation with ICE.”

MIP shows that arrests have declinced in California, where the sanctuary city movement is big, and risen in Texas, where it is non-existent.


Very few asylum applications are accepted

Friday, August 9th, 2019

About 40,000 people applied for asylum on the Mexican border in 2018. About 5,000 were approved.

As of mid July there were about 18,700 asylum seekers on the Mexican side of the border. Only a few dozen cases are heard daily. The Wall Street Journal reports, “Since only about 20% of asylum claims are eventually approved in court, according to government figures, the Trump administration says the clear majority are spurious claims. Nearly half are denied but the rest are either not decided, abandoned or withdrawn.” That 20% figure appears high in light of application resolution figures provided by the Dept of Justice, below. the data are estimates based on tables in the article