Present Process

Business petitions and applications such as I-129 NIV Petitions (various classifications), I-140 Petitions, I-526 and I-829 Petitions are still processed by using paper copies. This system fails to utilize readily available and widely used technological solutions. The U.S. CIS system which receives, processes, and requests additional information is inefficient, technologically primitive, and burdensome for both the immigrant and the United States Government

Most business-based nonimmigrant and immigrant visa petitions must be paper filed. In some instances the U.S. CIS allows electronic filing of the U.S. CIS forms but it does not provide for the option of submitting the supporting evidence electronically as well.

Once the petitioner or his or her attorney paper-files a business-based petition, the U.S. CIS will respond to the petitioner or his or her attorney via hard-copy mail (unless the case is filed via the U.S. CIS Premium Processing Service which requires additional $1,225 payment to the U.S. CIS). If additional evidence is requested by the U.S. CIS, the petitioner and/or the attorney is required to, in most if not all circumstances, file a response in hard-copy format to the U.S. CIS.

To better illustrate this process, let us take an example of a petitioner who decides to file Form I-129, Petition to Obtain L-1A Nonimmigrant Visa Status. Typically, the petitioner must take the following steps:

  1. Hard-copy file Form I-129 with supplements and supporting evidence;
  2. The U.S. CIS receives the hard-copy filing and mails a receipt;
  3. The U.S. CIS approves the case and/or mails a request for evidence;
  4. The petitioner then submits his or her response to the request for evidence (typically via hard-copy filing unless the case was filed via the U.S. CIS Premium Processing Service and is less than 20 pages long);
  5. The U.S. CIS denies or approves the case. If the case is approved, the petitioner still must wait for mailed approval notice (Form I-797) in order for the beneficiary to use it at the U.S. Consulate or a port of entry.

As shown above, the current system requires numerous hard-copy mailings/filings and back-and-forth paper correspondence between the U.S. CIS and the petitioner and/or his or her attorney.

 

If President Obama issues an Executive Immigration Order in December 2014, the USCIS will request a certain set of documents to prove the alien is eligible for the new Immigration Executive Order. We believe the documents required will be similar to what is required for the Dream Act. In the Dream Act the applicants needed to prove that they have been in the United States before 2009 or earlier. They needed to provide supporting documentation such as proof of entry, tax returns, school transcripts, health records of children or birth certificates of alien’s children who were born in the United States. The US Government does not require all these documents at the moment; these are just examples of what was requested for people to be able to file for employment authorization card through the Dream Act. We believe that similar documentation will be requested if the President Obama issues a new Immigration Executive Order. In addition, the Dream Act filing fee was $465, and we believe the new Immigration Executive Order may require a similar amount in order to receive unemployment authorization card.

First, President Obama has to issue the executive order which we believe will occur in December 2014. Once this occurs, it is supposed to affect at least 5 million illegal aliens. The majority believe is that these 5 million illegal aliens will obtain at the minimum an employment authorization card, which will allow them to work but not travel outside of United States. There are two reasons why we believe that people who have the final deportation orders issued against them will be included in the new executive order. First, we believe that the President can only use the deferred action language which only allows employment authorization to illegal aliens here in United States. Deferred Action has been used for people who have deportation orders for the last 25 years, so we believe that the President will use deferred action in the same manner as it has been used in the past which would include people with final deportation orders. Second, we believe that the President’s immigration executive order will be based on the same model as the Dream Act Executive Order which was issued in 2011. In that executive order children who entered the United States before the age of 16 and have the deportation orders were still able to obtain employment authorization. Therefore, aliens with the final deportation orders will most likely be included in the new immigration executive order and be issued an employment authorization card.

Many in the Hispanic community are skeptical that Barack Obama will take any executive action after the November 2014 elections. The Hispanic community believes they have been misled and lied to for the last six years. However based on the political map after the November 2014 elections, president Obama will have a little or nothing to lose if he issues an immigration executive order. His current approval rating is relatively low; he is hoping to enrage the Republicans by ignoring the Congress and issuing an order that may be constitutionally challenged. In fact, the Democratic Party recently was able to raise funds for the upcoming elections by claiming the Republicans are trying to impeach the president. Especially if the Republicans controlled the Senate, president Obama can position himself as the president trying to help the disadvantaged against the “evil” Republicans. He used this strategy effectively in both the 2008 and 2012 presidential campaigns. Therefore, we believe there is over 95% chance that an immigration executive order will be issued and it will provide employment authorization to approximately 5 million illegal aliens in the United States.

Proposed Process

As soon as the detained alien notifies private counsel that he has been served with a notice to appear, private counsel can prepare a bond motion, motion for a change of venue, and supporting documents, and send the email to both the assistant district counsel and the immigration court. The assistant district counsel can email his or her bond recommendation to the immigration court and the private counsel, and the immigration judge can issue a decision by email to both parties.

If the private counsel believes the bond is too high, he or she can request a telephonic hearing under the old system. However, private counsel will rarely request a telephonic hearing because they have already provided their best argument for bond in writing, and an immigration judge would be unlikely to change the ruling without new evidence. Therefore, bond would be paid immediately by the alien to avoid any further detention.

Benefits of the New Process:

Bond hearings would be reduced by at least 70%, and the immigration judge and the assistant district council could save an additional three to five hours or work per week. Detainees who would eventually receive bond can be released days to weeks earlier, saving detention costs. Clerks for both the U.S. CIS and the immigration court would save time creating paper files and transporting the hard files to the correct immigration judges and assistant district director, and the immigration court would reduce the use of court-paid interpreters. Also, more bed space would be available and the government could reduce its costs of food, shelter, medical attention, and security for detained individuals.

Executive order of prosecutorial discretion

Recently 136 law professors submitted a paper to the White House explaining that the President has legal authority to implement prosecutorial discretion without congressional approval.
The letter goes on to explain that presidents from both parties have used prosecutorial discretion to prevent specific, and often large, groups of immigrants from being deported.
The reason this letter is so important is that President Obama is likely to use it as his explanation when he issues and executive order on immigration. Since he does not have congressional approval, he will he need to rely on some legal argument for taking such a widespread action. The letter goes into more detail stating:
“Our letter confirms that the administration has specific legal authority to use prosecutorial discretion as a tool for protecting an individual or group from deportation,” said Wadhia. “This legal authority served as foundation for prosecutorial discretion policy across several administrations. Historically, this policy has been premised on the twin policy goals of managing limited resources and shielding people with compelling situations from removal.”
If the President relies on this letter, it is likely that deportations will stop except for aliens who have felonies. And there is a high likelihood that 5 million illegal aliens may receive work authorization based on the prosecutorial discretion powers used previously for Dream Act Kids. Dream Act Kids were able to receive employment authorization cards, renewable every two years. Once again this is not a guarantee that the President will issue an executive order, but it appears more likely than ever that something will occur after November 2014.

Reducing the Costs if Alien Detention through the Bond Hearing Process
Reducing Bond Hearings by 70%
Present Process
Thousands of bond hearings are held at detention centers around the United States. Once the government serves a notice to appear to the alien and the court, the immigration judge will then schedule the bond hearing date. Private Attorneys can find out the bond hearing date through relatives of the alien or by calling the 800 number of the immigration court system. Once private counsel finds out the date, they usually have between five to ten days to file the bond motion or a motion for a continuance because the private counsel is often unavailable with such short notice or is located in another jurisdiction.
Once the bond motion date is set, the assistant district counsel, the immigration judge, and the private counsel conduct a telephonic bond hearing. These bond hearings usually last five to ten minutes and the immigration judge sets the bond or denies bond. This coordination of assistant district counsel, immigration judge, and private counsel adds days or even weeks to the bond hearing process. During this time, the cost is substantial with respect to food, shelter, medical attention, and security for detained individuals.
If an alien is eventually released on bond, the government cost savings of an earlier bond decision and release is substantial with respect to food, shelter, medical attention, and security for detained individuals.

There is a debate on what authority President Obama has to issue an executive order on immigration. If he issues an Immigration Executive Order, it must be within the context of immigration discretion which has been used in the past. In other words, he cannot supersede any present law. He must add a certain group of illegal aliens to a previous discretionary group. The only way to fight a constitutional challenge is for the president to say that he is simply giving discretion within the law to a larger segment of illegal aliens.
This strategy will be difficult to challenge as discretion has already been given to illegal aliens. Congress would have to challenge the deferred action status which has been in effect over 20 years. This deferred action program has been granted to illegal aliens both under Democrat and Republican presidents.
Therefore, president Obama may say that he is simply expanding his discretionary powers regarding deferred action to a larger class of illegal aliens. So this deferred action strategy would be difficult to challenge as it cannot be considered a new law since the term deferred action has been used and applied to illegal aliens for over 20 years. If the Immigration Executive Order of deferred action is issued it would allow illegal aliens to have employment authorization and a social security number.

There are numerous ways in which you could do this. The prevailing theory is that he would provide 5 million people with the term of deferred action which puts people in a status in which they are not to be deported and receive employment authorization. He would provide a certain criteria such as being in the United States for the last five years or being in the United States for the last 10 years. It appears they will just pick an arbitrary date and then require undocumented aliens that they provide proof of their stay the United States. There is also speculation that the employment authorization card will have two or three year expiration date. In other words it would give 5 million undocumented immigrants legal status for two or three years and hopes that they will be immigration reform during that time.

There is a 50% chance that President Obama grants deferred action to roughly 5,000,000 people in the next month or two. It would be an executive order in the same format as Dream Act kids. In other words, he would designate a certain amount of people to receive deferred action and this would allow them to apply for employment authorization. It is most likely that they will not receive a travel document. It is still unknown of which people will be included in the 5 million. If we had to make an estimated guess the people who will be included will be people who have been in the US for at least five years and not committed any felonies. They also might be restricted to people who have either US citizen children, US citizen parents and/or US citizen brothers or sisters. Once again this is just an educated guess who would be involved in the new executive order and we should find out if this will occur in September of 2014. We will keep you updated as we get more information regarding the possible new law.

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Andrew P. Johnson - Immigration Lawyer