Arlington, VA

This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

Immigration law and policy depend heavily on who occupies the White House. With that in mind, we think it’s important for our fellow citizens to know what the major candidates propose to do about an important issue. In this column, we’ll discuss President Trump’s immigration platform. (We previously discussed former Vice President Joe Biden’s immigration platform, which differs greatly.)

Unlike former Vice President Joe Biden, President Trump’s campaign has not — as far as we can tell — published a platform on immigration. But President Trump’s future policies are likely to be largely a continuation of his current approach, with possible inflections based on the balance of power in the Senate and the differing political environment of a second-term President.

President Trump has changed U.S. immigration policy in deep and consequential ways throughout his first term. It’s worth recalling the full set of his major moves:

  1. The Administration imposed, and then defended with increasing success, a series of Travel Bans on countries which do not, in the opinion of the Administration, meet appropriate screening and security requirements. The most recent Travel Ban is still in effect.
  2. The so-called Family Separation policy at the U.S.-Mexico border, designed to discourage family group migration from Central America.
  3. Tightening the rules for asylum applications, both by additional evidentiary burdens on victims of gang violence and domestic violence seeking asylum and — in a recent move — by increasing the wait time for asylum-based work permits.
  4. The “Remain in Mexico” policy for Central American asylum seekers, which prevents many asylum applicants from applying for asylum in the United States.
  5. The addition of the new Public Charge Rule, which prevents potential green card holders from immigrating to the United States unless they can provide a great deal of evidence of future financial self-sufficiency.
  6. Border wall construction. As immigration restrictionists have noted, border wall construction has been… unimpressive in the terms that matter, namely new physical walls. Pre-pandemic, about one mile of new wall had been built, with just under a hundred miles of wall rebuilt. Those rebuilt walls are much more robust than the chain-link fencing that they replaced, so this is an impressive piece of construction.

So, what could we expect from a second term? The conventional wisdom is more of the same, and, as usual, the conventional wisdom is probably right. But there are a few things that we think would differ about a second Trump term.

  1. We believe that the asylum system is likely to become more bifurcated, between ‘ordinary’ claims (say, a Cameroonian political dissent who flies into JFK and applies for asylum in New York) and border claims. The Administration has begun two pilot programs, the Prompt Asylum Claim Review (PACR) and Humanitarian Asylum Review Process (HARP), which have the goal of adjudicating asylum claims at the border within ten days. These programs are under legal challenge now, but, if President Trump is reelected, you can expect them to have a chance of survival.
  2. We believe that prospects of comprehensive immigration legislation would be more or less nil. All projections show that Democrats will continue to control the House of Representatives, and it is unlikely that a Democratic House would be able to work with the Trump Administration to pass a mutually agreeable bill. Trust between the parties is at a low ebb, and on no issue as much as immigration. (Trump skeptics should note that the Administration did propose a limited deal in 2018; its failure suggests, a forteriori, that a more comprehensive deal would fail in a second term.)
  3. We believe that the Administration will move to rescind DACA, again, but this time successfully. Our recent article on DACA rescission described how the Trump Administration failed — in the opinion of the Supreme Court — to comply with the requirements of the Administrative Procedure Act. The decision lays out a road map for the Administration to succeed a second time.

Trump’s immigration policies in a second term are likely to be quite expansive, and we were only able to hit the highlights in this space. We’re glad to answer any questions that you have about these proposals. As always, we welcome any comments and will do our best to respond.

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This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

It was a big week at the Supreme Court for hundreds of thousands of immigrants who currently hold Deferred Action for Childhood Arrivals (DACA) work permits.

In Department of Homeland Security v. Regents of the University of California, et. al, the Court ruled that the Trump Administration’s efforts to rescind the DACA program did not satisfy the requirements of the Administrative Procedure Act, and hence were not lawful.

In our column this week, we’re going to explain two things: first, how the Court reached this highly technical decision; and second, how we expect the decision to play out practically for DACA recipients. This column will be a bit longer than usual, but we know that ARLnow readers love the details, so we’ll indulge ourselves — and, hopefully, you too.

To understand the Regents decision, you have to understand a bit of legal history. During the New Deal, the Roosevelt administration created a swarm of new agencies under the sole control of the executive branch. These agencies — many of which are still with us to this day, like the FDIC, the Federal Housing Administration and the Social Security Administration — set about implementing the New Deal in their areas of specialization.

Implementation requires the setting of standards and the adjudication of disputes, so, rather quickly, these new agencies found themselves trying to set rules and make precedential decisions in accordance with those rules. But there was no overarching legal framework to determine the manner and method of that work until the passage of the Administrative Procedure Act of 1946.

The Administrative Procedure Act (APA) defines how government agencies promulgate regulations and adjudicate disputes. The APA also defines the scope of judicial review of administrative decisions. Since the passage of the APA, the square footage of American life subject to federal agency oversight has grown enormously. Americans who are dissatisfied with an agency decision have to follow the procedures of the APA in order to hold the government accountable through the judicial system.

Our immigration system is a fine example of the APA’s massive influence on American public life. The Immigration Courts are administrative courts. USCIS, the immigration benefits agency, drafts its own regulations under the Administrative Procedures Act. And, finally, the Department of Homeland Security itself is both a source of regulation and the interpreter of its own regulatory action.

In 2012, the Obama Administration promulgated, via Executive Action — the famous ‘pen and a phone’ — the DACA program. The DACA program had and has two main parts: the grant of ‘deferred action’ to recipients, which effectively protects them from deportation, and the grant of a work permit as long as the deferred action remains valid. DACA was legally controversial from the beginning, and conservatives — both immigration restrictionists and skeptics of administrative action – sought, unsuccessfully, to overturn it through the courts.

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This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

Immigration law and policy depend heavily on who occupies the White House.

With that in mind, we think it’s important for our fellow citizens to know what the major candidates propose to do about an important issue. In this column, we’ll discuss former Vice President Joe Biden’s platform. In our next column, we’ll discuss President Trump’s platform.

Biden’s proposals can be divided into two main categories: rollback and reform. The rollback policies simply reverse moves by the Trump Administration, and the reform policies move American immigration policy beyond the status quo ante.

Here are the rollback provisions, which provide a useful precis of how remarkably vigorous and variegated the Trump Administration’s immigration policies have been:

  1. End the Family Separation policy at the U.S. border for migrants seeking asylum.
  2. Reverse Attorney General rulings which impose additional evidentiary burdens on victims of gang violence and domestic violence seeking asylum.
  3. End the Migrant Protection Protocols — the “Remain in Mexico” policy for Central American asylum seekers.
  4. Abolish the new Public Charge Rule, which prevents potential green card holders from immigrating to the United States unless they can provide a great deal of evidence of future financial self-sufficiency.
  5. End the Travel Bans, which prevent all travel to the United States from certain countries which the Trump administration regards as a security threat to the United States.
  6. End the “National Emergency” which permits the Administration to transfer funds initially allocated to the Department of Defense for construction of a border wall.

These proposals are unsurprising. The rest of Biden’s platform is more interesting:

  1. Reinstate the Deferred Action for Childhood Arrivals (DACA) program and ensure that DACA recipients are eligible for federal student loan assistance.
  2. Offer a path to citizenship for TPS (Temporary Protected Status) recipients.
  3. “Aggressively advocate for legislation” to pass comprehensive immigration reform.
  4. Decouple temporary workers (e.g., H-1B employees) from employers. This would have the salutary effect of decreasing employer power over temporary immigrant workers.
  5. Prioritize high-wage temporary workers over low-wage temporary workers. Here, I think it’s worth quoting the platform in full, because the proposal isn’t quite clear. “Biden will work with Congress to first reform temporary visas to establish a wage-based allocation process and establish enforcement mechanisms to ensure they are aligned with the labor market and not used to undermine wages.”
  6. Add a location-based system for encouraging immigration to economically depressed parts of the United States, by allowing cities and counties to act as petitioners. Immigrants would be bound to work and reside in the city or county that petitioned for them, which would create interesting issues both for municipalities and immigrants themselves. This proposal is in tension with the ‘decoupling’ proposal for private employers detailed above.
  7. Double the number of Immigration Judges, court staff and interpreters. On that point, at least, Biden and Trump are completely in agreement. With a backlog of over one million cases, the Immigration Courts desperately need the help.

Biden’s platform is long and ambitious, and we were only able to hit the highlights in this space. We’re glad to answer any questions that you have about these proposals. As always, we welcome any comments and will do our best to respond.

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This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

Immigrating to the United States is expensive.

A company petitioning for a worker or a U.S. citizen petitioning for a spouse will spend thousands of dollars on processing fees alone. United States Citizenship and Immigration Services (USCIS) is responsible for accepting and processing all immigration applications, along with the checks that come with them.

Historically, USCIS has supported itself using the filing fees people pay to have their applications processed. According to the USCIS website, 97% of USCIS’s Fiscal Year 2021 budget stems from those filing fees. But recently, USCIS announced that it is on the brink of running out of money. The agency is now seeking a bailout from Congress.

Why does this (heretofore) financially independent government agency suddenly need a bailout? We’d posit a couple of reasons.

The first reason is that the Trump Administration has increased the adjudicative burden on USCIS. In-person interviews are now required in almost all green card applications. Requests for evidence are now sent routinely, for even the most trivial errors or omissions. Demanding that USCIS put every application under a microscope increases the cost, as measured in staff time and resource demand, of doing business. That isn’t the agency’s fault.

The second reason is incompetence. The majority of USCIS applications are filed on paper by mail. Many attorneys are reporting that USCIS is improperly rejecting applications, and when USCIS rejects an application, they return the filing fee check back as well. We have seen it all: USCIS rejects applications stating that the fee amount is incorrect, despite the inclusion of the correct fee. USCIS rejects applications saying the application was incomplete, when in fact, it was complete.

Sometimes they say “You forgot the other form that goes along with your green card application,” and — you guessed it — that “other form” was submitted. Pro tip from a local small business: If you want the money, accept payments. Many applicants, understandably, choose not to refile.

The third reason is ballooning expenditures. USCIS’s annual budget has increased from $3.3B in FY2016 to just over $4.8B in FY2020. This is a generous rate of growth. Advocates are understandably focused on what USCIS is charging immigrants. As citizens, though, we’d also like to know why USCIS can’t both adjudicate applications at a reasonable speed and prevent fraud at the same time, given the resources at its disposal.

The fourth reason — which USCIS, understandably, leans on in its bailout request — is plummeting application numbers. USCIS says that numbers are down thanks to COVID19, which we believe is likely to be only a small part of the story. (Remember: the checks come in the mail.)

The real story, in our view, is that legal immigration to the United States is a less attractive proposition than it used to be. Between travel bans and the new public charge rule, immigration to the United States has become more difficult and complex. If you increase the price, you’ll sell fewer widgets.

We believe that these policies have stymied potential immigrants from filing benefit applications in the first place, perhaps because they think it unlikely that USCIS will approve the application, or maybe they cannot afford to hire an attorney.   These policy changes and their effects are decreasing USCIS’s incoming funds.

USCIS now requires that many immigrants show that they will not become reliant on government benefits. But now, USCIS is running to Congress asking for heaps of taxpayer money it never needed before. USCIS is on the verge of becoming a public charge itself. The irony is regrettable.

As always, we welcome any comments and will do our best to respond.

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This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

Times are tough, and law is expensive. But if you feel that you can’t afford an immigration lawyer on the private market, you have choices.

Comparison shop — rates differ widely. Ask for a payment plan; many lawyers offer them. If you’re truly hard up for cash, talk to one of the many good immigration charities in our area. Do not, under any circumstances, hire a notary to prepare your green card application.

Notaries who practice law without a license are pests. Many notaries use the term “notario publico,” which is a literal translation of “notary public,” to confuse victims. In many Spanish-speaking countries, a notario publico is an attorney.

Thus, the victims, who are unaware of how our legal system works, are deceived into believing that they are working with a real lawyer. Instead, they have hired a “notario” — literally, a notary, but, in this context, a thief.

Notarios frequently make clients believe that they are eligible for certain benefits when in fact, they’re not. Another common problem we see with clients who work with a notario is the notario charges a ton of money and then does not deliver on the services promised. When the bars reopen, you can bore attractive new acquaintances with the following fact: the statutory maximum fee for notarization, here in the Commonwealth, is $5. That’s how much it’s worth.

The DMV is no stranger to notarios, unfortunately. For example, a former leader of a Virginia immigrant organization posed as an attorney. The notario was prosecuted and sentenced to two years in prison after swindling two clients out of thousands of dollars. Our office has clients whose cases this notario formerly handled, and those cases required fixing.

We also recently highlighted another client’s story, that of Mr. M., who went to a non-attorney for his travel permit application. Because he did not have the backing of an attorney or other qualified person helping him, he did not have the support or expertise he needed when things went wrong until it was too late.

Some people make the mistake of working with a notario because they believe that all they are doing is filling out a bunch of forms. But what many clients, and probably many notarios, don’t realize is that the questions on the immigration forms have complex legal implications.

Sometimes checking the wrong box or stating the tiniest lie could have lasting consequences. All too often, we see cases that notarios have made much more difficult, and sometimes, impossible.

If you or someone you know has been the victim of a notario, we recommend reporting the notario to the authorities, whether it be the relevant state bar association or consumer protection program.

But to avoid ever having this problem, you should always work with a licensed attorney, like the attorneys in our office, to make sure the job is done right. We are also here to try to right the wrongs of these notarios.

Oh, and if you want a document notarized, call us for an appointment. In our office, notarization is a courtesy. We’re happy to do it for clients and non-clients alike.

As always, we welcome any comments and will do our best to respond.

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This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

You may have read that the President of the United States has banned all green card issuance for sixty days. Fake news.

On April 21, President Trump promulgated an Executive Order which banned the issuance of immigrant visas at U.S. Embassies abroad, with broad exceptions for spouses and children of U.S. Citizens.

Who was covered by the Order? Well, again, spouses and children of US citizens — who make up the bulk of immigrant visa applicants — were exempt. Parents of U.S. citizens, spouses and children of U.S. permanent residents, and siblings of U.S. citizens are subject to the order. Employer-sponsored green cards are also subject to the order. Folks in those categories are stuck, and will be stuck for at least the two months covered by the Order.

That sounds like a big deal, and, for the people affected by the Order, it is a serious hardship. But, as supporters and detractors of legal migration quickly noted, the Order is more bark than bite. Due to COVID-19, U.S. Embassies and consulates abroad were already closed for visa issuance, so the order changed nothing in the short run. And, perhaps more importantly, the Order changed nothing for the following categories of people:

  1. People inside the United States applying for green cards. Most green cards are awarded to people already inside the United States.
  2. Temporary workers, like H-1B tech workers and H-2A agricultural workers. Hundreds of thousands of such workers come to the United States legally each year.
  3. Asylees and refugees, who are specifically exempt from the Order.

So, when the text of the order was released, immigration restrictionists yawned with disappointment and immigration boosters cheered. Our view is that both sides should wait and see. The Order contains a little-discussed provision which instructs the relevant federal departments to prepare recommendations to further implement the goals of the Order.

Stephen Miller, whose role in the Trump Administration’s immigration apparatus has been a matter of widespread public discussion, has been quite open about the benefits of this “further recommendations” clause. His view, reportedly, is that the Order is a first step towards a broader reform of the U.S. immigration system: turning off the taps of what restrictionists call “chain migration.”

Mark Krikorian, the Executive Director of the Center for Immigration Studies, advocates using the Order as a stepping stone toward ending the H-1B program altogether, and restricting other types of guest worker program as well.

Whether these proposals are implemented by the Administration will determine whether the Executive Order is a meaningless footnote or a bellwether. Our bet is that the Executive Order will be a footnote, but that’s a political prediction, not a legal judgment.

For now, the important legal facts are these: if you are inside the United States, and you want to apply for a green card, you still can; if you are outside the United States, and you want to apply for a green card, you still can’t. If you already have a green card and want to apply for U.S. citizenship, the Order changes nothing for you: you should apply to become a citizen if you qualify.

As always, we welcome any comments and will do our best to respond.

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This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

COVID-19 has changed the way we do business. We’ve ended all client visits at our office, and when green cards arrive, we deliver them in person. We are also doing our part to help out in the community, by volunteering with the Medical Reserve Corps (check out James’ new gear!) and by helping other local businesses apply for Paycheck Protection Program funding.

Immigration is our specialty, though, so we want to provide the latest information here about what parts of the immigration system are operational and which are not. As always, consult your lawyer if you have questions about your own particular circumstances.

U.S. Citizenship and Immigration Services (USCIS) is still processing green cards, work permits, asylum applications and other paper-based requests. But the doors are shut to in-person visits. As of March 18, all in-person services, including naturalization interviews, citizenship oath ceremonies and asylum interviews are canceled through May 3.

Application Support Centers, which process applicants’ fingerprints for various benefit applications, are also closed through May 3.  However, the good news for work permit applicants is that if the applicant has previously provided fingerprints, USCIS will use the previously submitted fingerprints to continue to process the application.

USCIS has recognized that during the COVID-19 crisis, it may be more difficult to obtain certain documentation to respond to a request for more evidence or file an appeal.  Therefore, USCIS will accept responses for up to 60 days after the original due date for any response or appeal issued or due between March 1 and May 1.

USCIS also acknowledged that it is safer for clients and attorneys to avoid meeting in person. Normally, USCIS requires wet ink signatures on many applications and petitions. In light of the COVID-19 crisis, USCIS is temporarily accepting scanned or photocopied signatures so attorneys and applicants do not have to hand paperwork back and forth or meet to sign documents.

Customs and Border Protection, along with USCIS, is also assisting foreign travelers. Many people can come to the United States for a period of 90 days without a visa based on the Visa Waiver Program. However, COVID-19 has left many travelers stranded and unable to leave the United States before the 90 days runs out. Customs and Border Protection and USCIS are assisting travelers obtain a “satisfactory departure” and 30-day extension in the hope that the inability to leave does not negatively impact future travel.

The immigration courts have also taken steps to protect the public. All court hearings for immigrants who are not detained have been suspended through May 1 and the courts will reschedule the hearing for a later date. This step is important because on any given morning, about 150 people can pass through a single courtroom for a non-detained hearing.

Further, many courts have standing orders that allow attorneys to appear telephonically without requesting to do so in advance and without filing a motion for hearings involving a detained immigrant. All of the immigration judges at the Baltimore and Arlington Immigration Courts are allowing attorneys to appear telephonically.

Some courts have also allowed attorneys to file documents via email instead of filing in person or by mail. The Executive Office for Immigration Review has also started sending automated email updates to attorneys registered with the online immigration court portal regarding court closures or delayed openings.

Finally, the Department of State has suspended all routine visa services unless there is a true emergency. However, the Department of State continues to process some H-2 visas, which are largely issued to seasonal agricultural workers, due to the importance of maintaining the food supply chain during this crisis. U.S. citizen services also continue to be available.

Our office recognizes that we are all facing unique challenges in light of the COVID-19 pandemic, and we appreciate the various agencies’ efforts to flatten the curve. We are also doing our part to keep the community safe while continuing to assist our clients by practicing social distancing measures and adhering to the Virginia stay at home order.

If you or someone you know is concerned about the effect of COVID-19 on their immigration case, we are still here to help. As always, we also welcome any comments and will do our best to respond.

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This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

All too often, there are two kinds of law in this country — procedurally fair law for those who can afford it, and Kafka for those who can’t.

If you’re Felicity Huffman, you get fourteen days in prison for a federal felony and a New York Times story describing you as “by turns cheerful and stoic.” If you aren’t, your treatment won’t be as felicitous, and you won’t make the Times. This week, we want to share one of those stories with you.

Meet Mr. M., a gentleman who has been living in the United States since the 1990s.

Mr. M. has been living in the United States for most of this time under the Temporary Protected Status (TPS) program. You may remember reading about the TPS program in one of our previous articles. Mr. M. has five U.S. citizen children, ranging from ages three to 17. He is a homeowner and has been working for the same construction company for more than ten years.

In August 2019, his wife of fifteen years passed away. Mr. M. wanted to take his children to their home country to visit family. Based on his TPS status, Mr. M. applied for advance parole, or a travel permit, so that he could temporarily leave the United States and return with TPS. Note that applying for advance parole is completely legal: Mr. M. was following the rules.

Unfortunately, Mr. M. applied for advance parole with what is commonly referred to as a notario. Notarios are people who pretend to be lawyers and help immigrants file immigration paperwork. Pretending to be a lawyer is a crime.

Mr. M’s notario completed the paperwork for Mr. M’s travel permit and shipped it off. Unfortunately, due to the notario’s negligence, Mr. M’s original travel document was sent to the wrong address.

Mr. M. knew that his advance parole document had been approved, but he couldn’t find the original. Because he had worked with a notario rather than a real lawyer, Mr. M. had no legal recourse. But Mr. M. was resourceful, and tried to fix things on his own — he went to a local U.S. Department of Homeland Security office to ask how he could get his approved travel permit.

This, by the way, is where things really went off the rails.

The U.S. Department of Homeland Security official printed a copy of the approved travel permit from their internal system. The employee gave it to Mr. M. and told him he could travel with the copy.  “It will be fine,” they said.

It was not going to be fine.

Mr. M. travelled to El Salvador with his children. At the end of their trip, he returned to the airport with his children and was barred from boarding the plane because you need an original Advance Parole document to return to the United States. (The stated reason for this requirement: security requires the original piece of greenish paper.)

Panic ensued. Mr. M’s family came to our office to see if we could help fix the problem.

We helped Mr. M. apply for a different type of travel permit. Four months later — that’s four months separated from his five US citizen children — the new travel permit was approved, but, in order to actually board a plane back to the U.S., Mr. M. had to attend an interview at the US Embassy.

He did. (In fairness, we have to say that the State Department behaved impeccably.) The embassy gave him his travel permit, which is a boarding foil in his passport. It will expire this first week of April.

Meanwhile, COVID-19 hit, and El Salvador is not letting anyone leave or enter. Mr. M. remains stranded, separated from his family.

This tragedy didn’t have to happen, Mr. M. should have relied on a licensed attorney. DHS shouldn’t have “helpfully” given him a useless copy of the travel permit. But these explicit mistakes are just part of the picture. It took four months to get a new travel permit, even with competent legal advice. There was no better way to do it.

As always, we also welcome any comments and will do our best to respond.

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This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

Ask, and it shall be given you; seek, and ye shall find.

In order to understand how extraordinarily weird the world of immigration law is, consider the base case: an ordinary federal court. When a federal judge issues a decision, the losing party can appeal to the relevant Circuit Court of Appeals. The losing party at the Circuit Court of Appeals can petition for review at the Supreme Court.

Notice who isn’t mentioned in the layers of review. The Attorney General of the United States is the top law enforcement official in this country, but he doesn’t decide federal cases, nor does anyone think that he ought to. The powers of prosecution and adjudication are not, and ought not to be, united in a single office.

Now, consider a typical immigration case. When an immigration judge issues a decision, the losing party can appeal to the Board of Immigration Appeals. The losing party at the Board of Immigration Appeals can appeal to the relevant Circuit Court of Appeals, and thence to the Supreme Court.

Sounds similar, right? But there’s one key difference. The Attorney General of the United States has the power to reverse the decisions of immigration judges and to overturn decisions of the Board of Immigration Appeals, all by himself.

In theory, immigration judges (and the judges of the Board of Immigration Appeals) are merely legates of the Attorney General, exercising judgment and discretion on his behalf, and so the AG has the undoubted right to correct his own subordinate officers. He can even pluck a case out of the docket without either of the parties asking him to do so. (Not even the Supreme Court can do that!)

In practice, the Attorney General has used the power to self-certify sparingly. For example, the Washington Post reports that the Clinton Administration only used the certification power three times during his administration, and it was used four times during the Obama Administration.

By our count, sixteen cases were certified to the Attorneys General during George W. Bush’s administration, with nine of those stemming from the Attorney General’s power to self-certify. Since 2017, the Trump Administration’s Attorneys General have already certified thirteen cases, all of which were done at the request of the Attorneys General themselves.

Retired immigration judge J. Traci Hong, who previously presided over cases the Arlington Immigration Court, told the Washington Post that, “The power goes back decades, but in other administrations, it was used very rarely — kind of a nuclear option… Certifying a case is a way for the attorney general to stamp his or her own views on immigration law — and it’s the quickest way to do it.”

Thus far, the Trump Administration’s Attorneys General have used this power more often than other Attorneys General in recent memory. These decisions swiftly, and many times drastically, change the law that applies to all the immigration courts and Department of Homeland Security offices in the country, leading immigration attorneys and their clients to sometimes change course in an instant.

These changes are frequently significant. Here are three from the Trump Administration which have rocked the world of immigration practice:

  1. In Matter of M-S-, the Attorney General held that an entire class of non-citizens were not eligible for bond, and therefore must be detained while their immigration cases are pending.
  2. In Matter of A-B-, the Attorney General held that requests for asylum by victims of domestic violence should, generally, be denied.
  3. In Matter of L-E-A-, the Attorney General held that “the family” is not a particular social group for purposes of asylum analysis, and so threats to an asylum-seeker’s family generally are not cognizable for asylum purposes.

We want to thank Amirite for his thoughtful question, and we want to say, as always, that we welcome any comments and will do our best to respond.

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This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

We frequently use this space to talk about changes in immigration law and the challenges that our clients face. Today, we want to go a bit off topic and spotlight a client who exemplifies why we love our work.

Ms. S., who was born in 1943, came to the United States legally in 1993 and has had a green card ever since. Ms. S. approached the Borromeo Legal Project, Inc., a nonprofit associated with St. Charles Borromeo Catholic Church in Clarendon, to ask for help in applying for citizenship. The Borromeo Legal Project provides free English tutoring and pro bono legal representation to clients in need.

As part of our commitment to pro bono service, we agreed to represent Ms. S. in her naturalization application.

Ordinarily, applicants for U.S. citizenship have to be able to speak, read and write basic English. Ms. S. was exempt from this requirement, based on her age and her long residency in the United States. Ms. S. is also starting to have memory issues, which affected her ability to take the U.S. history and civics exam.

Despite her memory challenges, Ms. S. studied the civics and American history questions diligently with the help of her supportive family. When we met to prepare for her interview, she was extremely nervous about the civics test. We submitted a medical exemption request which, if accepted, would have exempted her from the U.S. history and civics test.

On the day of the interview, we found out that her medical exemption request was denied, which meant that she would have to pass the history and civics test with the aid of a translator. Luckily, the U.S. Citizenship and Immigration Services officer spoke Spanish and conducted the entire interview in Spanish with Ms. S.

The officer was friendly and did everything she could to help Ms. S. feel comfortable. Ms. S. passed the civics exam and everyone in the room, including the officer, clapped and congratulated her. Ms. S. was so relieved that she began to cry. The rest of the interview went off without a hitch.

Today, Ms. S. is taking her oath to become a United States Citizen.

We are proud to work with the Borromeo Legal Project, proud of our work with Ms. S., and glad to share her story with you. If you know someone who has a green card and would be a good candidate for pro bono citizenship representation, please let us know, either directly or by referring them to the Borromeo Legal Project application page.

As always, be in touch with us directly if you need legal advice. If you have other sorts of questions, comment below. We love comments and will reply to all we can.

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This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

As of Monday, February 24, 2020, most green card applicants will need to clear an entirely new, extraordinarily complex hurdle: the Form I-944, Declaration of Self-Sufficiency.

Our goal, in this brief article, is to provide readers with an overview of what the Trump Administration is demanding of green card applicants going forward. We encourage our U.S. citizen readers to imagine doing this for themselves.

Tax Return Transcripts

Previously, green card applicants were required to provide tax documentation in a form familiar to most Americans — mostly commonly a copy of Form 1040, plus Form W-2. This will no longer suffice. Now, green card applicants must provide tax return transcripts, which are produced by the IRS. Tax return transcripts are, in theory, available online. In practice, obtaining a tax return transcript online can be quite difficult, and so many people will need to file paper applications and wait for the IRS to answer.

If you’re applying for a green card, you’ll need a tax return transcript for yourself, plus a separate tax return transcript for each and every member of your household who filed a separate tax return.

Can’t figure out how to get tax return transcripts? Find an accountant, and get out your checkbook.

Household Assets and Resources

You’ll need to provide the net value of real estate — so, you had better dig up the deed and a recent appraisal by a licensed appraiser. Don’t have a recent appraisal? Get out your checkbook.

You’ll need to provide checking and savings account statements for the past twelve months. Yes, all of them. Enjoy your trip to the bank or, if you switched banks in the past year, to several banks.

If you have investments, you’ll need to provide statements showing their net cash value. This includes retirement investments, which are tallied separately. Can’t figure out the net cash value of liquidating your traditional IRA or 401(k)? Remember, you’ll need to calculate taxes and early withdrawal fees, so don’t leap to conclusions. Probably safest to find an accountant, and get out your checkbook.

Liabilities or Debts

You’ll need to provide documentation for each and every liability in your financial picture, including mortgages, car loans, child support, alimony, credit card debt and tax bills.

Having fun yet?

Credit Report

You’ll need to get a credit report. Did you freeze your credit after the recent Equifax scandal? Too bad, you’ll have to unfreeze it. If there are any errors in your credit report (and there frequently are), provide evidence that you’ve disputed the errors and that the error is under investigation.

If you don’t have a credit score, you’ll need to provide evidence of continued payment of bills. We have no idea what that means in practice.

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