December 22, 2007
Best Mexican Restaurant in Houston Started by an Undocumented
Hugo Ortega entered the U.S. without inspection at the age of 17. He was issued a Temporary Resident (green) card in April of 1988 under IRCA. With the help of Tracy Vaught, he enrolled in the culinary arts program at Houston Community College. He graduated in 1992 and worked as chef and executive chef at Backstreet Café and Prego before opening Hugo's in 2002. He has made two guest chef appearances at the James Beard House in New York City. Hugo's is now rated the top Mexican restaurant in Houston.
Read more here.
Milwaukee Police Officer Faces Deportation
For a sad story of a Milwaukee police officer ordered deported to Mexico, click here. As the N.Y. Times reports, his "case is familiar to many [undocumneted] immigrants. Brought here by their parents illegally as children, they grow up thinking of themselves as Americans, often speaking English without a trace of an accent. But their immigration status frequently catches up with them when they prepare to attend college or take a job."
The former officer is scheduled to leave family, friends, and community today and return to Mexico, a country he left as a child.
TRO Denied in Arizona Employer Sanctions Case
It was no surprise given that, as previously reported here,the district court had previously dismissed a challenge the the new Arizona immigration/employer sanctions law slated to go into effect on january 1. Yesterday, in a new lawsuit, the same judge refused to block the implementation of the Arizona law that penalizes businesses that knowingly employ illegal immigrants. Here is a news story on the ruling.
U.S. District Judge Neil Wake denied requests for a temporary restraining order or an emergency injunction to block the law from taking effect. For a copy of the order, see Download aca_122107.pdf
Judge Wake ruled on both the motion for injunction pending appeal in the first challenge to the Arizona employer sanctions law (Chicanos Por La Causa v. Napolitano) and the motion for a temporary restraining order in the second challenge (Valle del Sol. v. Goddard). The judge denied both requests for a TRO and a motion for injunction pending appeal, and in the latter, he issued a 29 page ruling that assesses the merits of the case. Judge Wake first determined that plaintiffs did not meet their burden of establishing the necessity of interim relief because the balance of hardships tips strongly in favor of the defendants. The judge held that plaintiffs’ hardship was minimal (economic injury only), and opined that an injunction would “gravely injure the interests of the State” because of the confusion that may result if the law is enjoined at the eleventh hour. He also stated that there would be great harm to the public interest if the law was enjoined because legal workers are harmed by the employment of unauthorized workers in the State of Arizona. The judge then went on to analyze plaintiffs’ likelihood of success on the merits. He first concluded that it is questionable whether plaintoffs will be able to sustain their claims on subject matter jurisdiction in the Court of Appeals. Judge Wake then proceeded to find that the Immigration Reform and Control Act (IRCA), the federal scheme for regulating immigration, expressly authorizes rather than preempts the licensing sanctions in the Arizona employer sanctions law. He found that the Arizona employer sanctions law does not conflict with IRCA because it does not make employers conform to a stricter standard of conduct than the federal law, and that mandatory participation in E-Verify is not in conflict with, or pre-empted by, federal law. This ruling is in direct conflict to the holding by the judge in Lozano v. Hazleton on very similar, if not nearly identical, facts. Finally, on the claim that the Arizona employer sanctions law violates procedural due process, Judge Wake concluded that “[t]hough Plaintiffs have raised a substantial issue, they have not met their burden of showing a strong likelihood of success on this issue.”
The Ninth Circuit already has refused the request to rule on an emergency request for injunctive relief and has declined to rule on this case until Judge Wake rules on the plaintiffs' motion for preliminary injunction in the newly filed cases in mid-January. It therefore appears that the Arizona law will go into effect as scheduled on January 1, 2008.
UPDATE The Washington Post has a thoughtful op/ed about the Arizona law, and its potentially damaging impacts on the state's economy.
Huntington Taken to Task
For a detailed dismantling of Samuel Huntington's nativist agenda (as expressed in his book Who Are We?) by Ricardo Guarnero, click here.
December 21, 2007
Planning the War Against Immigrants
This article by Tom Brady, is part of a new series (from the Americas Policy Program) that examines the evolving ideological frameworks shaping the immigration debate.
The war against immigrants and immigration is being fought on three main fronts: in Congress, in local and state government, and on the campaign trail. While the anti-immigration movement that is coursing through American politics is beyond the control of any individual or organization, the leading restrictionist policy institutes in Washington are setting the policy agenda of the anti-immigration forces at all levels of U.S. politics.
Following their success in stopping a comprehensive immigration reform bill in the U.S. Senate that included legalization provisions, immigration restrictionists have rallied around a common strategy: "Attrition through Enforcement." As this war against the country's most vulnerable population deepens, the American people will need to ask themselves if they feel any safer or more secure, if they have more hope to find better-paying jobs, if their neighborhoods and town economies are more or less vibrant as immigrants leave, and if they are proud of themselves and their country.
Tom Barry is a senior analyst with the Americas Policy Program (www.americaspolicy.org) of the Center for International Policy.
See full article online at:
Will Bill Richardson be Next to Drop Out of the Presidential Race?
Yesterday, Tom Tancredo dropped out of the presidential race, just days after this blog revealed his italian immigrant ancestry. (Please readers, we do understand the lack of "cause and effect" here; no flames please.). But, after this story, will Bill Richardson be next?
New Mexico Governor Bill Richardson III has a remarkably complex family immigration history, much too complex to ever be President -- and he even has MEXICAN ROOTS and his mother even lives in Mexico. in fact, Bill Richardson is indeed the first serious Latino candidate for President.
Richardson's banker mother, María Luisa López-Collada Márquez, was born in Mexico City and currently lives there. His father was William Blaney/Blaine Richardson II, who was born in Nicaragua. Richardson's paternal grandparents were Boston-born naturalist William Blaney Richardson and Rosaura Ojeda Medero (born in Oaxaca). The elder William and Rosaura married and moved to Nicaragua where William did research for the Smithsonian as a naturalist. William Jr. was born on a boat heading to Nicaragua 1891. After his mother's death in Nicaragua, William Jr. and his two younger sisters were taken by his grandmother from Nicaragua to Boston.
William B. Richardson II worked in Mexico City for Citibank, where he met and married María Luisa López-Collada Márquez. María Luisa Richardson delivered her children in Pasadena, where her husband's sister lived. As Richardson explained in an article in the Washington Post, "My father had a complex about not having been born in the United States."
Earlier generations (prior to the first William Blaine) in the Richardson line were Massachusetts commercial merchants. He is also a descendant of Mayflower passengers through the Richardson line. His maternal grandfather was the Spanish-born Manuel López-Collada Márquez and Mexican wife Maria Márquez Vazconcelos.
To see the family tree in schematic form, click here.
Even though Bill Richardson talks thoughtfully on a number of issues, including immigration, how could a guy with this convoluted family immigration history ever be president of the UNITED STATES? And he speaks flawless Spanish to boot! What has become of this country?
We will let you hear if we hear about a possible Richardson withdrawal. Check for breaking news on his campaign website.
is the Tide Changing on Immigration?
Robert Gittleson wrote an article a few days ago entitled "The Cruel And Intolerant Myth of Attrition: Why The Huckabee-Krikorian Scheme To Starve 20,000,000 Undocumented Economic Refugees Out Of The Country Is Inhumane, Fiscally Irresponsible, And Undermines American Values" on Immigration Daily. The title gives you the gist of the argument. Interestingly, Guttleson reports that 4 of 5 of the responses are positive, the opposite of what he usually gets. Is the average American getting tired of all this anti-immigrant rhetoric?
Time will tell, I guess. One thing is clear, however. Tom Tancredo's anti-immigarnt ticket failed to catch fire -- at least in terms of getting hom support.
Thanks for the Memories Tom Tancredo -- Or Hasta La Vista, Tomás
It is official. Tom Tancredo has withdrawn from the race for the Presidency. Dana Milbank has a great story in the Washington Post about the candidacy. According to the polls, only a few percent of likely Iowan caucus voters supported Tancredo's candidacy. One of the cruel (perhaps delicious is a better word) ironies is that
"Adding to the pain, the Marriott restaurant, just steps from the meeting room [in Iowa] where Tancredo quit the race, was serving a`"South of the Border Thursday' lunch buffet." (emphasis added)
What will we do without Tommy T?
New SSRN Immigration Articles
"Social Deprivation and Exclusion of Immigrants in Germany" JOHN P. HAISKEN-DENEW Rheinisch-Westfälisches Institut für Wirtschaftsforschung (RWI Essen), Institute for the Study of Labor (IZA) MATHIAS SINNING Rhine-Westphalia Institute for Economic Research (RWI-Essen), Institute for the Study of Labor (IZA) Full Text: http://ssrn.com/abstract=1033367
"Ethnic Sorting in the Netherlands" ASLAN ZORLU University of Amsterdam - Amsterdam Institute for Advanced Labour Studies (AIAS) JAN LATTEN University of Amsterdam Full Text: http://ssrn.com/abstract=1033375
"Remittances" EZRA ROSSER American University Washington College of Law Abstract: http://ssrn.com/abstract=1024177
"Labor's Fragile Freedom of Association Post-9/11" RUBEN J. GARCIA California Western School of LawFull Text: http://ssrn.com/abstract=1031826
"Labor as Property: Guestworkers, International Trade and the Democracy Deficit" RUBEN J. GARCIA California Western School of Law Full Text: http://ssrn.com/abstract=1031828
Recent Immigration Court Cases
There were two noteworthy immigration cases decided yesterday.
In Doe v. Attorney General, the Third Circuit held that
"The government recognizes that there is objective evidence in the record that the conditions for homosexual men in Egypt may have deteriorated since Doe left that country. The government argues that this change in conditions is material to Doe's claims for withholding of removal and CAT protection, that neither the BIA nor the IJ has properly considered that issue, and that thus the agency should evaluate the issue in the first instance. ... [W]e will vacate the decision of the BIA and remand for further proceedings consistent with this opinion."
Doe is the latest in a growing body of cases in which the noncitizen seeks relief from removal because of feared punishment for homosexuality.
A district court in New York dismissed a suit challenging the denial of a visa to Muslim scholar Tariq Ramadan:
"The Court finds that the reason provided by the Government for the exclusion of Professor Ramadan is facially legitimate and bona fide. The Court recognizes the limits on its authority in this case. The question of admissibility of aliens is a political question, a question which is best left to the Legislative and Executive branches. Having articulated a facially legitimate and bona fide reason to exclude Professor Ramadan, Mandel makes clear that the Court has no authority to override the Government’s consular decision." American Academy of Religion v. Chertoff, S.D.N.Y., Dec. 20, 2007.
Tariq Ramadan sought to enter the United States from his home in Switzerland in 2004 after being hired to teach an Islamic ethics course at Notre Dame. Judge Crotty said the government’s decision was made because, in a four-year period, Ramadan had given a little over $1,000 to a charity later designated as a terrorist group by the U.S. government.
According to the N.Y. Times, Ramadan is a respected academic and a grandson of Hassan al-Banna, founder of the Muslim Brotherhood. The American Civil Liberties Union filed the suit on his behalf as well as on behalf of the American Academy of Religion, the American Association of University Professors and the PEN American Center. For the N.Y Times story on the case, click here.
The Ramadan case illustrates the broad definition of "terrorist activity" in the immigration laws, which many scholars, including Gerald Neuman, has thoughtfully analyzed and critiqued.
Review of DEBATING IMMIGRATION, Carol Swain
For a review of DEBATING IMMIGRATION, by Carol Swain (ed) by John C. Blakeman (Department of Political Science, University of Wisconsin-Stevens Point), click here.
Immigrant of the Day: M. NIGHT SHYAMALAN
Film Director M. NIGHT SHYAMALAN is our Immigrant of the Day. "I see dead people." If you are a fan of the American cinema, you'll recognize this phrase from "The Sixth Sense." It was written and directed by Manoj Nelliattu Shyamalan, an Indian immigrant known professionally as M. Night Shyamalan.
Shyamalan is widely recognized as a leading American film director. Besides The Sixth Sense, he directed the films Unbreakable and The Village.
The Sixth Sense earned Shyamalan the Academy Award nomination for Best Director and Best Screenplay at the age of 29. The American Film Institute named the film one of the 100 greatest motion pictures of all time.
December 20, 2007
Say it Ain't So Ron Paul!
Republican Presidential candidate Ron Paul, a libertarian of sorts who has championed immigration enforcement measures, complained of "excessive" immigrant benefit consumption (what are they eligible for?), and has suggested the elimination (somehow) of birthright citizenship (see here and here), has an immigrant grandparent. Yes, it is true. Paul was born in Green Tree, Pennsylvania (once home to many German immigrants, which irritated the the heck out of the irascible Ben Franklin who claimed that they were of a different "race" than the Brits and effectively unassimiliable), to Margaret "Peggy" and Howard Caspar Paul, the son of a German immigrant.
For a spoof -- yes, it is a joke folks -- of what could happen to Paul if it was determined that his immigrant relatives were undocumented and his proposal to eliminate birtthright citizenship became law, click here. Here is the punchline:
"Former President Ron Paul would traditionally have been succeeded by the Vice President, former actor Fred Thompson, had not the latter already been deported to his great-grandparents' native Finland. The presidency of the United States will thus, under the rules of succession, be taken up by Speaker of the House Nancy Pelosi, whose documents, according to a spokesman, are impeccable. The official swearing-in will take place in the White House rose garden later today."
Two weeks before Iowa begins the state-by-state battle to choose the Republican and Democratic candidates for the November 2008 presidential election, politicians are walking a fine line between addressing illegal immigration without turning off Hispanic voters.
Here are some facts on immigration in the United States.
* There were an estimated 34.2 million immigrants in the United States in 2004, according to the U.S. Census Bureau. Of these, 18.3 million came from Latin America, 8.7 million from Asia and 4.7 million from Europe.
* An estimated 11 million to 12 million undocumented immigrants live and work in the United States, roughly one in every 20 workers, according to a study by the Pew Hispanic Center based on government figures.
* About 1.1 million people were arrested crossing the U.S.-Mexico border illegally in 2006, most of them from Mexico and Central America. Click here for the story.
Whaddya Gonna Do? Julie Myers Confirmed
The Senate on Wednesday confirmed Julie L. Myers as director of Immigration and Customs Enforcement, two years after President Bush appointed her to the position amid questions about her qualifications to lead the government's second-largest law-enforcement agency. Myers appointment were approved by a voice vote. Besides concerns with whether she had enough experience to lead the agency, critics noted that she was engaged -- and is now married -- to John F. Wood, who was chief of staff to Homeland Security Secretary Michael Chertoff and is now the U.S. attorney in Kansas City. Retired Air Force Gen. Richard B. Myers, the former chairman of the Joint Chiefs of Staff, is her uncle. Julie Myers was Chertoff's chief of staff when he led the Justice Department's criminal division.
But that was not the end of the controversy. Myers' appointment ran into trouble again this fall when she gave the "most original" costume award to a white employee who came to the agency's Halloween party dressed as an escaped prisoner with dreadlocks and darkened skin. The incident elicited an apology from Myers and a "leave' from the agency.
In a time when there is a great deal of concern with immigration enforcement, combined with the longtime concern with the racial sensitivity of the immigration bureaucracy, it seems that a better person for the job could have been found. The good news is that the Bush administration soon will be part of history.
For the AP story on Myers' confirmation, click here.
UPDATE: For an interview with Myers about ICE's 2007 achievements, click here.
Tancredo Out of Presidential Race!
The Denver Post reports that "Rep. Tom Tancredo plans to withdraw from the GOP presidential field today, ending a campaign in which he failed to gain much attention or traction as rivals largely adopted his long-held immigration positions."
There has been no confirmation that Tancredo's withdrawal from the Presidential race has anything to do with any of the criticism he has received on the ImmigrationProf blog and the recent "revelation" that his grandparents were immigrants. We make these points tongue in check, of course. It is much more likely that Tancredo withdrew because he lacked the votes and support necessary to continue.
Immigrant of the Day: John F. Timoney (Ireland)
John F. Timoney was appointed Chief of Police of the Miami Police Department in 2003. He previously served one year as Chief Executive Officer of an international private investigation and security company in New York City and four years as the Police Commissioner of the Philadelphia Police Department, where he commanded a diverse police force of approximately 7,000 officers and over 900 civilian employees.
Timoney, a native of Dublin, Ireland, immigrated to the United States at the age of 13. He earned two graduate degrees and is a vocal proponent for enhanced formal education of police officers and democratic policing. Timoney is considered an authority on terrorism. He created and laid the groundwork for the establishment of the City of Miami Institute for Democratic Policing.
December 19, 2007
Visa Processing in Ciudad Juarez
Update from Ciudad Juarez
By Charles Wheeler, Catholic Legal Immigration Network, Inc. (CLINIC)
Santiago Burciaga, Chief of the Immigrant Visa Section at the U.S. Consulate in Cd. Juarez, and Warren Janssen, Officer in Charge of the USCIS office located near the consulate, each spoke at CLINIC's annual family immigration law training in El Paso on November 15, 2007. The following is a summary of the updated information they provided:
Caseload. The consulate continues to be the largest and busiest immigrant visa (IV) post in the world. For the last fiscal year the consulate processed more than 89,000 immigrant visa applications. That is a 3,000 application gain over the prior year. The consulate has been experiencing a steady increase in applications -- especially in the last few months -- and anticipates that it will be processing approximately 135,000 IV applications during this current fiscal year. For example, last month the consulate processed 14,000 IV applications, and for the first three months next year it anticipates processing 16,000 cases per month. The consulate averages between 700 - 950 IV applications per day.
As of December 11, 2006, the National Visa Center (NVC) began scheduling the IV appointment interviews for immediate relative applications. At that time a sizeable backlog had developed at the consulate, due to a combination of staffing shortages and increased workload. This caused immigrant visa applicants to wait almost 10 to 12 months for the consulate to schedule the IV interview from the date it received the file from the NVC. As of the end of September 2007, the backlog in immigrant visa applications had been reduced to approximately 41,000 cases. This was comprised of approximately 25,000 immigrant visa applications scheduled by the consulate under the prior system and 16,000 cases where the visa appointment was scheduled by the NVC. As of today, the "local" backlog has been eliminated. The only remaining backlog is that which exists at the NVC.
By mid-March 2008, the consulate believes that it will be able to comply with the "30/60-day" Congressional mandate. That rule requires the consulate to schedule an IV interview within 30 days of receipt of an immediate relative application from the NVC; the consulate must schedule the interview within 60 days for a preference category case. Due to the high volume of applications and increased demand, the consulate has been unable to meet that requirement.
Upcoming move. The consulate anticipates a huge demand for services next year when millions of laser visas (border crossing cards) throughout Mexico will need to be renewed. Another demand will come through implementation of the Western Hemisphere Travel Initiative, which will require U.S. citizens to have a passport to travel to and from Mexico. The consulate will be moving into new facilities in June 2008, which will be larger, more modern, and better able to accommodate the increased number of immigrant and nonimmigrant visa applicants, as well as U.S. citizens seeking services. All of the various consular and USCIS offices will be housed together in this new compound, which will be located a little bit farther into Cd. Juarez (nine miles from the Port of Entry).
The physical move next summer should not cause much interruption in services.
The consulate plans on closing down services on a Wednesday and re-opening on the following Tuesday.
Communications. As a result of the increased caseload, backlog reduction efforts, and preparation for upcoming surges, the consulate has decided to suspend e-mail communications with practitioners for the next six to eight months.
Responding to e-mails had become very time consuming, with many practitioners sending follow-up questions and using it almost as a "chat" session. At the present time, applicants and practitioners must communicate with the consulate only through the Call Center. That number is 900-476-1212. If calling from Mexico dial 01-900-849-4949. While practitioners may not receive the same type of response they were used to getting, Mr. Burciaga encouraged them to please continue using this service. The Call Center is submitting regular reports and the consulate is monitoring the service they provide. If the inquiry is particularly urgent, send a fax to the Immigrant Visa Chief and state your case.
The fax number is 011-52-656-616-9056.
For example, if you need to cancel an IV appointment, contact the Call Center. It will send a report to the consulate, which will in turn make a notation in the electronic file and send verification to the Call Center. In addition, you may also fax your request to the consulate, which will allow you to receive written confirmation that your communication was received. However, the faster and preferred method is to communicate through the Call Center.
The consulate will accept G-28s, Notice of Entry of Appearance as Attorney or Representative, signed by either the I-130 petitioner or beneficiary.
However, the USCIS, when adjudicating a waiver application, will only accept G-28s signed by the IV/waiver applicant.
Denials. Approximately 18-20 percent of the IV applicants are found inadmissible and require a waiver. Most of these are based on the unlawful presence ground of inadmissibility. In the last fiscal year, the USCIS adjudicated approximately 10,800 waiver applications, and for next year it anticipates processing almost double that.
K-3 visa applications. The consulate has also reduced the backlog in K-3 applications from U.S. citizens on behalf of spouses residing abroad. The wait time is now greatly reduced. If the consulate has started processing for the nonimmigrant visa and it receives the approved alien relative petition (Form I-130 and IV application), it will ask the applicant which visa he or she would prefer to receive. If the applicant would prefer to receive the immigrant visa, the consulate will cease processing for the K-3, or vice versa. Having made that election, however, the applicant cannot change his/her mind.
Medical exams. As a result of new guidelines from the Center for Disease Control regarding screening for tuberculosis, applicants between the ages of 2-14 must receive a PPD skin test as part of the medical exam. The panel physicians need 72 hours to read the reaction to the skin test. Therefore, applicants with children must have the medical exam conducted at least four days prior to the scheduled immigrant visa interview. The NVC is not informing applicants of this new requirement, except to refer them to a website for possible supplemental information. This new TB test is currently only required for applicants immigrating through Cd. Juarez, Manila, and Guangzhou. It will be required for all IV applicants in the future.
Being an alcoholic is not per se a health-related ground of inadmissibility; one must also evidence associated harmful behavior. If the applicant drinks and drives, then that is a potentially dangerous activity and the applicant may be found inadmissible. If there was a prior drunken driving conviction, it doesn't matter when the DUI occurred as much as if the behavior continues.
Please refer to the new guidance issued by the State Department earlier this year that requires the consular official to refer the IV applicants to a panel physician if they have a single drunk driving arrest or conviction within the last three calendar years or at least two arrests or convictions in any time period. 9 FAM 40.11 N8.3. There is a waiver for alcohol-related inadmissibility, but not for narcotic drug use. In the latter situation, the applicants must show remission -- usually for three years -- before they can reapply.
If the derivative child is not named on the appointment letter, go to the consulate's Information Window and request a new appointment letter. The derivative will then be added. Take that letter and the Mexican passport to the panel physician and they will conduct the medical exam.
Affidavit of Support. After the USCIS finalized the affidavit of support rule in July 2006, applicants have been able to file an I-864W in lieu of an
I-864 in cases where the intending immigrant has satisfied the 40 Social Security quarters rule or will be deriving citizenship through the Child Citizenship Act of 2000. The consulate will now accept these "waiver" forms and will not require the submission of tax or employment information. The consulate recognizes that due to staff turn over, some officers have mistakenly rejected the I-864W and requested an affidavit of support. If your client experiences this type of improper rejection, please contact the consulate by fax.
If the applicant must submit an affidavit of support, the sponsor has to establish domicile in the United States. In cases where the U.S. citizen sponsor has been residing in Mexico and is petitioning for a spouse, that sponsor can re-establish U.S. domicile with the intending immigrant. The consulate does not require any specific evidence that the couple plans on settling in the United States upon the granting of the immigrant visa. Rather, the consulate looks to the intent of the parties. That intent to resettle does not have to be immediate; it could be an intent to resettle a year from now.
The State Department has recently confirmed that Unemployment Insurance benefits are considered income and can be counted in satisfying the 125 percent of poverty requirement. Social Security retirement or disability benefits can be counted as well, though not Supplemental Security Income (SSI) for the, aged, blind, or disabled. The consulate will also count child support as income.
The consulate will not consider real estate located in Mexico as an asset, though it will consider the intending immigrant's income-generating property that will continue after the applicant immigrates.
Inadmissibility due to unlawful presence. The consulate and the USCIS office in Cd. Juarez define unlawful presence and its exceptions in the same manner for those potentially subject to the three- or ten-year bar under INA §
212(a)(9)(B) and the "permanent" bar for illegal reentry after one year of unlawful presence under INA § 212(a)(9)(C)(i)(I). [Note: The wording of the statute is potentially ambiguous. The unlawful presence exceptions for minors, asylum applicants, Family Unity recipients, battered spouses and children, and adjustment/extension/change of status applicants appear to apply only to the three- and ten-year bar provision, not the permanent bar provision. The consulate is applying the exceptions to both provisions.] In other words, if a child under the age of 18 has not acquired unlawful presence for purposes of triggering the three- or ten-year bar, he or she will not have triggered the permanent bar for illegal reentry after one year of unlawful presence.
Repayment of IV visa fee after waiver granted. If the applicant is initially found inadmissible and denied an immigrant visa, submits a waiver, and the waiver is granted, the applicant will be rescheduled for an interview with the consulate. At that interview, the applicant must repay the $380 IV visa fee.
The only circumstances where the applicant will not have to re-pay the fee is when the consulate refuses the applicant under INA § 221(g).
False claims of citizenship. There are no waivers for false claims of citizenship made after September 30, 1996, and there is only one narrow exception.
However, according to the consulate and the local USCIS office, children under the age of 15 are legally incapable of making a false claim of citizenship for purposes of INA § 212(a)(6)(C)(ii). Children aged 15-17 can be found to have made a false claim of citizenship if the facts indicate that they were acting on their own and not under the direction of a parent or guardian. In most cases, however, children under age 18 are determined to be not legally capable of committing this offense and therefore are not being found inadmissible.
Signing the State Department forms. The Form DS-230 Part 1 can be signed by either the IV applicant (I-130 beneficiary), the I-130 petitioner, or the designated agent. The DS-230 Part 2 can only be signed by the IV applicant in front of the consular official on the date of the interview.
What to bring to the interview. Most of the IV interviews are now being scheduled by the NVC, which forwards the file to the consulate approximately one month before the scheduled date. The consular officials may go through the file prior to the interview date and notice that additional documents are required, or indicate that certain documents have been separated from the file. In that case, please bring the requested documents to the interview. If the case is being scheduled locally, the consulate will send a notice indicating which documents should be taken to the interview. If original documents have already been submitted, these will be returned to the applicant at the interview upon being granted the immigrant visa. All applicants, including children, must come to the interview with the passport because the consulate is now issuing machine-readable immigrant visas that are stamped into the passport.
Family members attending the immigrant visa. The consulate will not allow family members of the intending immigrant to attend the interview with the exception of minor children. In those cases, the consulate would like the petitioning parent to attend the interview. This is a safety issue, given the rise in human trafficking and other fraudulent activity.
Derivatives. If a derivative child is not included in the visa forms sent from the State Department, either due to agency error, a failure to include the child's name on the I-130, or because the child is after-acquired, contact the NVC and have that office re-send the fee bill and forms. If the derivative and the principal for some reason have separate files, notify the consulate and it will cross-reference and merge the files so the family members can attend the same interview.
If the principal beneficiary has adjusted status in the United States and that person wants to start consular processing for derivative children residing in Mexico, the principal may file a Form I-824 with the USCIS and have that office forward confirmation of adjustment approval to the consulate, which will open a file for the derivatives. Alternatively, the principal may send proof of having adjusted directly to the consulate. Send a cover letter and a copy of the Form I-551, Resident Alien card. The consulate will register that derivative as following-to-join the principal beneficiary. The consulate will verify the "A" number with USCIS. On the day of the interview the consulate will request the principal beneficiary to be present and bring a copy of the original I-551 card.
Update from Warren Janssen. Mr. Janssen's office is located near the consulate, but is under the jurisdiction of the DHS/USCIS. Approximately 15 to 20 percent of the IV applications require a waiver for inadmissibility, and his main responsibility is adjudicating waiver applications.
When he started in this position in July 2005 he faced a backlog of waiver applications and a steady monthly stream of approximately 200-400 applications.
The approval rate of his predecessor was between 95 to 98 percent. Mr.
Janssen took a harder look than his predecessor at the waiver applications and documentation supporting the extreme hardship claim, and the approval rate necessarily went down. At this time, however, the approval rate is still quite high -- between 70 to 75 percent of the waiver applications are granted.
The volume of waiver applications has steadily increased commensurate with the increase in IV applications. It soon became obvious that the job required more than two adjudicators. Part of the problem was that a large amount of time was being spent filing documents in the appropriate case file. Since it was taking between 6 to 12 months to adjudicate the waiver applications, and during that time applicants were allowed to supplement their cases with current evidence of extreme hardship to the qualifying relative, a more efficient system was developed that allowed for same-day adjudication of "clearly approveable"
waiver applications. Mr. Janssen, working with the U.S. consulate, developed a pilot program in March 2007 that allowed IV applicants to schedule an InfoPass appointment a few days after their IV interview where they could submit their waiver application.
Immigrant visa applicants who were found inadmissible for a waivable ground are now given written notice at the time of the consular interview informing them of the procedure for submitting their waiver packet through an InfoPass appointment. At that time they return to the consulate, pay the waiver fee, and submit the waiver application, together with supporting documentation of extreme hardship. The consulate receives the application and hands the file over to the USCIS adjudicating officer in an adjoining room. If Mr. Janssen's office believes it is a "clean" case (no FBI criminal hits, no separate A file to
examine) that is readily approveable, it will grant the waiver and hand the file back to the consulate. The consular official in turn will approve the immigrant visa either that day or the following.
The approval rate for applications processed through the pilot program is about 55 percent. Persons who do not have a clearly approveable case are not denied but are rather referred to the pre-existing adjudication process. In other words, their application is added to the backlog of pending cases and reviewed later. They are encouraged to supplement their file with additional proof of hardship. Although the referral letter indicates that they have 30 days to submit additional supporting documentation, they can actually submit it at any time up to the date of adjudication.
The current backlog of pre-pilot program cases is 4,000, which is down from a high of 8,000 cases. The waiting time for adjudication is 10 to 12 months.
Applicants may ask to expedite the waiver adjudication if they submit evidence of serious health factors or military deployment. The applications are reviewed and adjudicated locally, as well as sent to USCIS offices in Tijuana, Monterrey, and Mexico City for adjudication. If the USCIS receives the anticipated 18,000 waiver applications during this current fiscal year, and 55 percent (approx. 10,000) are approved through the pilot program, the others would be referred to the backlog, which would grow to12,000 unless action were taken to adjudicate them. Mr. Janssen plans to continue sending cases in the backlog to the other USCIS offices in Mexico, as well as adjudicating some in-house, to eliminate the backlog by the end of the fiscal year. His goal is then to adjudicate the cases referred through the pilot program within a three-month period.
That InfoPass pilot program worked well for the first six months until the demand for InfoPass appointments exceeded the number of available slots. This created a "frontlog" of several hundred persons trying to schedule an InfoPass appointment and who were unable to do so. Part of the problem with scheduling through InfoPass is that one can't schedule an appointment beyond a two-week period. The El Paso USCIS district office has recently lent Mr. Janssen's office an agent to assist in adjudicating pilot program applications. As a result, the USCIS has now doubled the number of possible appointment slots from 65 to 130, which should alleviate some of the difficulty in scheduling an appointment. It is their hope that the frontlog can be cleared up within the next several weeks.
Beginning December 17, 2007, persons wanting to schedule an appointment to file their waiver application with the USCIS will no longer be using InfoPass.
Instead they must telephone the Call Center (900-476-1212 from the United States or 01-900-849-49-49 from Mexico). To use a credit card, call 800-919-1754 from the United States or 01-477-788-70-70 from Mexico. The call-in appointment service should be able to schedule these appointments much more efficiently than the prior InfoPass system and handle a larger volume of applicants.
Mr. Janssen prefers to receive the application and supporting documentation two-hole punched at the top so it can be easily inserted into the file. Do not include any tabs that would protrude from the file. He likes to see a cover letter that sets forth in bulleted format the supporting documentation that is included. Do not include reports of country conditions or evidence (e.g., birth or marriage certificates) reestablishing the relationship to the qualifying relative. Set forth the facts that support the extreme hardship claim, but do not cloud the application with case citations or legalese.
Applicants who are denied may file an appeal with the Administrative Appeals Office. Those appeals are filed with his office and forwarded to the AAO. It currently takes approximately 12 to 25 months to receive a decision.
Data on Immigrant Remittances
Most readers no doubt know that immigrants in the United States send monies to their native lands. But did you know that in six countries — Moldova, Tonga, Guyana, Haiti, Lebanon, and Tajikistan — remittances were equal to more than 20 percent of those countries’ gross domestic product (GDP) in 2006? If not, check out the latest report of the Migration Policy Institute (MPI). Remittances totaled over US$280 billion worldwide in 2006. The MPI's brand-new Global Remittances Guide allows you to learn quickly and easily about remittance trends over time and patterns in the world, six regions, and in the top remittances-receiving countries in terms of volume and share of GDP.
News Flash: Barack Obama has a Foreigner as a Father!
Senator Barack Hussein Obama is the son of Barack Obama, Sr. (born in Kenya) and Ann Dunham (born in Wichita, Kansas). His parents met while both were attending the University of Hawaii, where his father was enrolled as a foreign student. Obama's parents separated when he was two years old and later divorced. Obama Sr. went to Harvard to pursue a Ph.D., then returned to Kenya, where he died in an auto accident. Obama's mother married an Indonesian foreign student and the family moved to Jakarta in 1967. Young Obama later returned to Honolulu to live with his maternal grandparents. Obama's mother died a few months after the publication of his 1995 memoir, Dreams from My Father.
It is uncertain whether Senator Obama will withdraw from the Presidential race now that it is known that he has a foreigner for a father. So far, he has remained in the race despite the suspicious middle name (Hussein) :) and the fact that he lived in Indonesia for a number of years.
We will keep you posted on any developments in this breaking story!
This is part of an occasional series on the family immigration histories of the various Presidential candidates.