Be Careful: Permanent Bar Now Retroactive!

In Carrillo de Palacios, the Ninth circuit held that any unlawful presence period before 4/1/1997 can be used to trigger the permanent bar even if the illegal or attempted illegal re-entry happened only months after 4/1/97. The case is currently on appeal because it allows for a new law to be applied retroactively to unlawful presence before the new law (IIRIRA) took effect in 4/1/1997 when the permanent bar and the unlawful presence bars (3 & 10 year bars) were created. The applicant in this case had 245(i) adjustment eligibility if not for the permanent bar and was denied her opportunity to apply for a green card.

Determining Case Status on Waivers filed outside the US

Determining case status is one of the most frustrating parts of the current waiver process outside of the US. CIS offices not only differ on processing times for waiver submissions, but there is usually no way of finding updated information on how long a case is taking. The first place I always recommend is reviewing the consulate's website. Access the US Department of State's website for a list of consulates. Some of these consulates have links to the CIS office assigned to the consulate. Certain CIS offices post processing times in terms of the average monthly processing times. Others, such as the Athens office, allows applicants to track their case by the case number.

CIS Headquarters in the US has received complaints about this inability to track up to date processing information for many overseas offices. As of June 2011, CIS reports that they are trying to implement a "case status online" system for international cases much like that found for cases filed in the US and accessible through www.uscis.gov, but this international system is many months away. Always consult your immigration attorney to determine if there are more recent, available methods for the particular CIS office where your file is located to find out updated processing times.

Direct Filings of Marriage Green Card Cases at Consulates Changing

The One Step Filing Procedure Is Now Rare.

As of August 25, 2011, US citizens residing in a foreign country that does not have a US CIS office in that country, are no longer allowed to directly file their marriage-based immigrant visa cases with the consulate in that country. They have to file the case with US CIS lockbox in the United States. In only cases of rare emergency (such as medical emergencies or where the personal safety of the petitioner or beneficiary is at risk), will CIS authorize the Department of State (consulate abroad) to accept a direct filing when there is no CIS office in that country.

This will not be a popular decision as it eliminates the advantage to direct filing which was cutting out the long CIS processing time that averages 6 months for the file to be approved by CIS in the US), plus the time NVC takes to assemble and request more documents and set up the consulate interview. Now, it will take longer for CIS to approve the case, reroute it to the National Visa Center, then reroute it again to the consulate abroad for the immigrant's interview based on the marriage. Only those US citizens living in a foreign country that has a CIS office within that country will be able to skip the US CIS & NVC processing.

Fast Track Waiver Program Stays in Mexico

The US Consulate in Ciudad Juarez, Mexico receives 20,000 waiver filings (for unlawful presence, misrepresentation, prostitution, and criminal grounds) a year, with two full time workers assigned t the waivers. They have the only waiver system in the wqorld that is two-tracked. A case can be "instantly approved" within 3 weeks, on average, if the officer believes that the case is strong enough or there are no complications with arrest records, or other unresolved issues that need more attention. The cases that are not in these instantly approved batch, head to the backlog, which has taken as long as 16 months for a decision, an incredibly long time for an immigrant to wait abroad for a decision. CIS recently announced that CDJ CIS's fast track program is being considered for all waiver submissions when CIS brings all waiver filings to a lockbox set in the U.S. scheduled to be set up for next year. Right now, no other CIS office outside the US has this fast track program and CIS is making no plans to add the fast track to any of those offices as none have the volume of cases that CDJ has.

DHS Announces New Policy for those in Removal Proceedings

On June 17, 2011, ICE published a memo on their interpretation of when they will use prosecutorial discretion to dismiss pending removal cases. ICE, a subset of the Department of Homeland Security, is aiming its resources on enhancing border security and identifying and

removing criminal aliens, those who pose a threat to public safety and national security, repeat

immigration law violators and other individuals prioritized for removal.

In a letter from the current DHS Secretary to Congressman Dick Durbin published in August 2011, DHS Secretary writes, "President Obama has said on numerous occasions that to DHS it makes no sense to expend our enforcement resources on low-priority cases, such as individuals like those you reference in your letter, who were brought to this country as young children and know no other home. From a law enforcement and public safety perspective, DHS enforcement resources must continue to be focused on our highest priorities." DHS announced that it is organizing a work group with the Department of Justice (DOJ) which has oversight over the Immigration Courts, "to execute a case-by-case review of all individuals currently in removal proceedings to ensure that they constitute our highest priorities. The working group will also initiate a case-by-case review to ensure that new cases placed in removal proceedings similarly meet such priorities."

What does this mean for those currently in removal? Repeat immigration law violators will still have difficulty being released from immigration hold or having their cases dismissed from Immigration Court. Those who have one illegal entry as opposed to multiple entries, misrepresentations, or criminal convictions will likely not obtain prosecutorial discretion and dismissals of their cases. Further, there is going to be a lot of confusion about this policy, especially because DHS said they would consider issuing work permits on a case by case basis. Much like the guest worker program spoken of for years and years to no avail, the work permit option does not exist and may never. DHS confirms that the new policy does not give relief or benefits for anyone including any of those students that would be eligible under the Dream Act.