Statutes of Liberty

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Victoria Khaydar, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

If you want a visa to come to the United States, you fill out the application, you pay the fee, you wait for an appointment, and you sit for an interview with a consular officer at a U.S. embassy or consulate. There are narrow exceptions. Being a friend of the President is not one of them.

Or it didn’t use to be.

On October 25, Brazilian Senator Flávio Bolsonaro – eldest son of the imprisoned former president Jair Bolsonaro – lost Brazil’s presidential runoff to Luiz Inácio Lula da Silva, reportedly by more than 4.4 million votes. The next day, Brazil’s Supreme Court ordered him to surrender his passports as part of a money-laundering investigation. He did not. On Tuesday, a senior State Department official announced that Bolsonaro and his family would be granted U.S. visas. On Wednesday morning, he landed by private jet at Miami-Opa Locka Executive Airport.

We doubt very much that Senator Bolsonaro sat for a visa interview at the U.S. Embassy in Brasília, or at any of the U.S. consulates in Brazil, sometime between Monday’s court order and Tuesday’s departure. (And if he already held a valid visa, there was nothing for the State Department to announce.) So what, exactly, happened? Let’s consider the possibilities.

He was paroled. The Secretary of Homeland Security may parole a person into the United States “on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” INA § 212(d)(5)(A). If that is what happened, it would at least be lawful. But we doubt that, too. An ordinary person who asks for parole files Form I-131 with USCIS and, in our experience, waits more than two years for a decision. Merely asking USCIS to expedite the application takes more than a month to get an answer, and the answer is routinely no. Senator Bolsonaro, it seems, got his overnight. If he was paroled, say so, and explain how he got to the front of the line.

The visa requirement was waived for an “unforeseen emergency.” The regulations do allow this. 8 C.F.R. § 212.1(g). But losing an election you have been campaigning in for a year is not unforeseen. Neither is a court order in an investigation you have known about for months. Indeed, Bolsonaro’s younger brother, Eduardo, said on a podcast earlier this month that Flávio should leave the country if he lost. Some emergency.

A visa will be issued after the fact. That isn’t how visas work. A visa is permission to travel to a port of entry and request admittance. Issuing one to a man who is already in Miami is like issuing a fishing license to a poacher with prize tarpon already gaffed and flopping on the deck.

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This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Victoria Khaydar, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

If you filed an asylum application with USCIS more than a year ago, and that application is still pending, you may recently have received a notice from USCIS directing you to pay something called the Annual Asylum Fee. Or you may not have. That, as we will explain, is part of the problem.

The Annual Asylum Fee was created by H.R. 1 – the reconciliation bill enacted in July 2025, sometimes known as the One Big Beautiful Bill Act – which requires asylum applicants to pay a fee for every year that their asylum application remains pending. The length of time an application remains pending is, of course, determined almost entirely by the government, not by the applicant. This feature of the law has not escaped the notice of asylum seekers or their lawyers.

The rollout has been, to put it charitably, iterative. USCIS launched a payment page in October 2025 and began sending notices. A federal court in Maryland paused the notices a few weeks later. That pause was lifted in February 2026. In April 2026, the Department of Homeland Security published an Interim Final Rule, effective May 29, 2026, which spelled out the consequences of failing to pay on time: rejection of the asylum application, termination of the applicant’s work permit, and potential referral to removal proceedings. Meanwhile, the notices themselves have proven unreliable. Many applicants report never receiving one, and some only learned that they had owed the fee when the USCIS website informed them that their payment period had expired.

The Litigation: No Penalties – For Now

In July 2026, a coalition of organizations representing asylum seekers and TPS holders sued USCIS in federal court in Massachusetts in Venezuelan Association of Massachusetts v. USCIS. On July 21, 2026, the court issued an administrative stay, and on August 5, 2026, it extended that relief while the case proceeds. Under the court’s orders, USCIS may not:

• reject an asylum application because the applicant failed to pay the Annual Asylum Fee;
• terminate an applicant’s work authorization for failure to pay; or
• begin removal proceedings based solely on failure to pay.

The stakes were not small. According to the plaintiffs, USCIS had been prepared to reject 227,186 pending asylum applications for nonpayment. In August, USCIS also reopened expired payment windows, so applicants who were previously told their deadline had passed may now be able to pay.

But note what the court did not do. The order expressly allows USCIS to keep collecting the fee, and USCIS’s position is that anyone who receives a notice must pay it according to its instructions.

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This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Victoria Khaydar, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

On September 29, 2026, the Board of Immigration Appeals issued a short precedent decision that will cast long shadow. In Matter of G-R-B-, 30 I&N Dec. 102 (BIA 2026), the Board held that an immigration judge may pretermit an application for asylum and without a motion from the Department of Homeland Security.

“Pretermit” is lawyer’s prattle. In plain English, it means the judge reads your paperwork, decides it doesn’t state a winning claim, and denies it — without ever letting you take the witness stand to tell your story.

My prediction is simple: immigration judges will use this power to deny asylum cases in large numbers. The purpose of this advertorial is to explain why.

Pretermission is not new, but until recently it was rare. In 2025, the Board decided Matter of H-A-A-V-, 29 I&N Dec. 233 (BIA 2025), which held that a judge need not hold a full evidentiary hearing when the written application, taken at face value, does not establish prima facie eligibility for relief. In practice, the government usually started that process by filing a motion to pretermit. That motion gave the applicant notice that his case was in danger and a chance to answer it. Requiring ICE-OPLA to submit a written motion also gave the prosecutor a chance to assess the claim independently.

G-R-B- removed that step. In G-R-B-, a Mexican man applied for asylum, withholding of removal, and protection under the Convention Against Torture, based on fear of harm. DHS never asked the judge to pretermit. The judge did it anyway, on the judge’s own initiative and without a hearing — and the Board approved the practice.

The upshot is that the judge can now act as both prosecutor and decision-maker on the question of whether your case even gets a hearing. DHS no longer needs to lift a finger.

This would not be worrisome if immigration judges exercised effective independence from the Justice Department. Unfortunately, a procedural tool is only as dangerous as the people who hold it. And the people who hold this one are under enormous pressure.

According to an August 2026 report from TRAC at Syracuse University – the leading statisticians of the immigration courts – 279 immigration judges were fired or resigned during fiscal years 2025 and 2026. That’s roughly 38% of the 735 judges who were on the bench at the end of fiscal year 2024. During the previous four years, the average annual departure rate was about 5%.

The judges who remain have noticed. TRAC tracked 130 judges who stayed continuously on the bench from fiscal year 2021 through fiscal year 2026. Three out of four of them deny asylum more often today than they did in 2021, and the median judge’s denial rate rose by 28 percentage points. In June 2026, the overall asylum denial rate hit 94.1%. (Prior grant rates hovered around 40-50%.)

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This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Victoria Khaydar, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

Temporary Protected Status is supposed to be temporary. Congress built it that way on purpose. Congress also built it to be predictable, so that the people who rely on it, and the employers who hire them, know where they stand. Congress also did that on purpose. The statute sets deadlines and requires the government to publish its decisions.

In September, the unstoppable force of TPS elimination met the immovable object of “Here come the midterms!” and the Trump Administration simply blinked, but in such a way that nobody will be happy: neither the federal judiciary, nor immigration hawks, nor, God knows, TPS beneficiaries themselves.

How TPS is supposed to work

The TPS statute, 8 U.S.C. § 1254a, is not complicated. At least 60 days before a country’s designation expires, the Secretary of Homeland Security must review conditions in that country. He must then decide whether to extend or terminate the designation, and publish that decision in the Federal Register. A termination cannot take effect until at least 60 days after that notice is published.

Congress also anticipated a Secretary who doesn’t get around to deciding. Here is the text, in relevant part (our highlights in bold):

If the Attorney General does not determine under subparagraph (A) that a foreign state no longer meets the conditions for designation under paragraph (1) by the time required under such subparagraph, the period of designation of the foreign state is extended for an additional period of 6 months (or, in the discretion of the Attorney General, a period of 12 or 18 months).

El Salvador: 25 years, and then nothing

El Salvador has been designated for TPS since the earthquakes of 2001. Its most recent extension, published in January 2025, ran through September 9, 2026. The deadline for the Secretary’s decision was therefore July 11, 2026.

July 11 came and went, and so did September 9, with no Federal Register notice of any kind. Instead, the USCIS El Salvador TPS page now carries this alert:

An announcement on El Salvador’s TPS will be made at the appropriate time. Until such announcement is made, Salvadoran individuals present in the U.S. under TPS retain protection including work authorization.

“At the appropriate time.” The appropriate time was July 11!

Our reading of the statute is that El Salvador’s designation has been extended by operation of law, for at least six months, to March 9, 2027. The government hasn’t said so, and it may claim that a termination decision was made quietly and never announced. Even on that theory, the statute requires that a termination be published, and it cannot take effect until 60 days after publication. Either way, no Salvadoran TPS holder should lose status without at least 60 days’ public notice in the Federal Register.

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This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Victoria Khaydar, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

USCIS administers immigration benefits. In the time-honored tradition of government agencies since the days of Ur and Uruk, USCIS uses forms to collect, store, and interpret information. Immigrants complete these forms in order to obtain benefits. Most U.S. citizens have no idea what reams of paperwork these forms require. An ordinary green card application is comprised of ninety-seven pages of bare forms, which typically are supported by several hundred pages of supporting documents.

In better times, forms are a necessary evil. In the times we actually live in, forms are just another weapon with which to thwack your political opponents.

In the second iteration of the Trump Administration, USCIS has discovered a new, extremely petty way to make immigrants’ lives more difficult – by releasing new form versions which make utterly minute changes, and then decrees that yesterday’s official version is obsolete as of today.

The Office of Management and Budget, by the way, requires that all government forms have an ‘edition date’ and an ‘expiration date.’ USCIS evades this neatly by making the expiration date purely notional – the form can be valid after the expiration date, and it can be decreed obsolete at any time before or after the expiration date. (The edition date is notional, too – in the first months of the Trump Administration, USCIS persistently released forms backdated to January 20, 2025, seemingly just for the inaugural vibes.) The forms altered in the last two weeks are highlighted below.

1. Form G-28. Four pages, stating that a lawyer represents you.
2. Form G-28. Four more pages, stating that the same lawyer represents your spouse.
3. Form I-130. A twelve-page biographical survey of you, the U.S. citizen.
4. Form I-130A. A six-page biographical survey of your spouse.
5. Form I-131. A fourteen-page request for permission to travel while the government thinks about whether to grant the green card application.
6. Form I-485. A twenty-four pager. This is the green card application itself. It repeats all of the biographical detail from Forms I-130 and I-130A.
7. Form I-693. A fourteen-page list of certifications concerning your health and fitness. (No, your family doctor can’t do it for you – you have to go to someone called a Designated Civil Surgeon.)
8. Form I-765. A seven-page request for a work permit while the government thinks about whether to grant your green card application.
9. Form I-864. A twelve-page contract in which you (the U.S. citizen) promise to repay the government for welfare benefits, if your spouse draws on them, and in which you further promise to keep your spouse above the poverty line. (more…)

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Victoria Khaydar, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

Immigration forms are forms. Traditionally, the medium for forms is paper. The U.S. immigration authorities have – laudably – been modernizing their system to accept both paper filings and online filings. This week, in a less laudable move, USCIS announced that they will shortly be accepting only online filings and almost never accept paper filings. This is a serious misstep. In this advertorial, we will discuss the USCIS proposed rule concerning online filing, the advantages and disadvantages thereof, and offer a few thoughts about what may be motivating the agency.

First, what does USCIS say? USCIS says that requiring online filing will make data “easier to receive, store, and accss,” will “enhance fraud detection,” and reduce errors in application filing and adjudication. All of that may be true. USCIS also says that online filing will “accelerate the shift to electronic fee payments.” That isn’t true; USCIS has been exclusively requiring electronic payment even for paper-filed forms for months – we told you about that almost a year ago!

Our view is that the main advantage of the system is probably improvements in putative (and actual) fraud detection. USCIS’s most scalable tool for detecting fraud is its ability to compare applications filed at widely disparate times. If an asylum application based on membership in a banned political party is filed in 2005, and asylum granted in 2012, and the asylee claims never to have belonged to a political part in his application for adjustment of status filed in 2026, that raises important questions for the adjudicator. Detection of the variance in a paper-based system is much harder than in a database-based system. (There is a question in the asylum application about membership in political parties, and there is a question in the green card application about political parties: make the match!)

The disadvantages of electronic filing are also significant.

The first and most significant disadvantage of online filing is the government’s limited ability to build (and maintain) a filing system that works. The State Department’s visa application processing system (the Consular Electronic Information System, or CEAC) goes down for scheduled and unscheduled maintenance quite frequently. USCIS’s current infrastructure, although far better than CEAC, also has its problems – unexplained timeouts, wonky labeling for evidence, and form fields which do not match the actual forms are all part of the experience.

A second disadvantage of online filing is that it expands the gap between the haves and the have-nots. USCIS already charges a supplemental fee – typically, $50 – if you choose to file an application on paper. Applicants who file on paper typically are older, have fewer financial resources, and are less skilled with computer systems. Applicants who cannot presently file on paper are not going to learn how to create an online account with two-factor authentication – instead, they will turn to a lawyer (in the best case) or an unsavory document preparer (in the all-too-common case) to do it for them. That will increase fees for those who are least able to afford them.

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