Press Club

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

Everyone wants to be able to work, but not everyone can work legally.

For most non-citizens, proving that you have the right to work legally means producing a work permit. There’s the rub: getting a work permit can take years, even if you’re eligible for one today. We’ve previously explained the ways that USCIS handles work permit applications; the answer is slowly. But, in a rare bit of good news, USCIS has finally done something to assist applicants in the endless queue.

Previously, USCIS issued an automatic 180-day extension if the applicant was filing her work permit renewal application under certain categories as long as the applicant applied to renew before the current work permit expired. Most applicants can file the renewal application at least 180 days before the expiration of the current work permit.

However, USCIS has not been capable of processing a work permit renewal in 180 days, let alone 360 days. For example, the California Service Center is currently taking 20 months to issue a work permit based on a pending green card application.

USCIS has finally acknowledged that it cannot process work permit renewal applications in a timely manner, and that this harms not only the immigrants waiting for their new work permits, but it also harms U.S. businesses who cannot maintain their workforce due to a lapse in employees’ work authorization.

To keep applicants from experiencing that lapse, USCIS has decided to issue 540-day automatic extensions for certain applicants. Now, as long as an immigrant presents the current work permit and a receipt notice showing that a renewal under the same category was timely filed, the immigrant will be authorized to work an additional 540 days after the expiration on the face of the work permit.

But the question is: is this solution a good one or just a band aid on a bigger problem? We say it’s a band-aid on a total hemorrhage.

USCIS has long struggled to process work permit renewal applications, despite each application only taking about 12 minutes to adjudicate. This rule is meant to be temporary while USCIS tries to reorganize and create more efficient workflows; USCIS hopes to meet that goal by October 27, 2023. However, we believe that the rule will be extended past that date. USCIS not only struggles to adjudicate these applications in a timely manner, but also cannot adjudicate almost every other application in a reasonable amount of time.

For example, as of today, May 12, 2022, the USCIS Potomac Service Center is taking around 11.5 months to issue a renewed green card. The form used to request a renewed green card is only seven pages long, and most applicants pay $540.00 for the application. The same service center is taking 30 months to issue a decision on a family petition filed by a permanent resident on behalf of a spouse or child.

The USCIS Nebraska Service Center is also taking 11.5 months to issue refugee travel documents, an application which is filed on a five-page form and costs most applicants $220.00.

Don’t get us wrong — this temporary extension is excellent for our clients and we are glad that USCIS has done something to alleviate the pressure on work permit applicants. We have had many clients lose jobs due to a lapse in work authorization.

However, we do not foresee any major improvements from USCIS between now and October 2023. Inefficiency and slowness have been issues at USCIS for a long time — certainly for as long as any of the lawyers in our office have been in practice. We hope for the best, but we expect the status quo to continue.

As always, we welcome any thoughts or questions and will do our best to respond.

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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., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

Note: this column was written by James Montana, who owns our little law practice. The opinions expressed therein are his own.

Your local lawyer, on the phone, either asking for a loan or making his next appointment for Guy Fieri-style frosted tips. Photo via Doran M. Shemin.

Whenever I walk into a business, I find myself musing, like Admiral Stockdale: Who am I? Why am I here? After I vault those philosophical hurdles, though, I usually find myself wondering: Am I getting a good deal? That is an important question, and the purpose of this column is to answer that question for you. Doing so, I hope, will give you a little insight into the finances of a local law practice.

The balance sheet has two sides: revenue and expenses. Revenue is determined by caseload and price. Outside of our corporate immigration work, we charge flat fees, and fees range from $300 for a work permit to $5,000 for deportation defense. The three lawyers here typically carry a caseload of between 100 and 150 cases. Does that mean that, at (say) 100 cases, and (say) $3,000 per case, a lawyer here generates $300,000 per year? Certainly not. Most immigration cases take more than a year to get to the finish line. Court cases sometimes take more than a decade. So, managing our revenue means taking the long view. If we think we can’t carry the load in 2023, 2024, or 2025, we turn down the money today.

Balancing our need for revenue with our professional obligation to keep cases at a manageable level is tricky. We try to keep fees low and client numbers up. Given those commitments, a good rainmaker might generate fees in the very low six figures.

Let’s turn to (perhaps) the more interesting side of the balance sheet: Where does that money go?

The largest expense by far is salaries. I don’t want to disclose lawyer salaries to the entire internet, but you can fairly infer from (1) gross revenue described above, and (2) the expenses described below that (3) we are not chuckling all the way to our third homes in Cancun.

We spend about $20,000 in rent, utilities and maintenance each year. (That’s low — we squeeze three lawyers into 500 square feet, and when we need something fixed, I buy the supplies at Ayers Hardware.)

We spend about $10,000 per year on paper, toner, free coffee for the clients and other office supplies.

We pay about $20,000 per year for a remote reception service. Our friends at Ruby Receptionists answer calls for twelve hours a day, five days per week, in English and Spanish, and are worth even that extraordinary number of pennies. Picking up the phone is an important part of our work.

We spend about $8,000 per year in postage. (13,793 first-class stamps? No, not really. We ship almost all of our correspondence to the government by Priority Mail or Certified Mail because, with all due respect to our friends at USCIS, we trust-but-verify all shipments to the immigration authorities.)

We spend about $12,000 per year on payroll management, workers’ compensation and bookkeeping services, and, when you roll in the cost of our practice management software, business insurance and malpractice insurance, you get to about $20,000.

Health insurance for our three lawyers — we cover 70% of the cost, for both workers and dependents — costs a neat $20,000 per year.

Amidst some other odds and ends, we have a small advertising budget, most of which goes to our friends at ARLnow. No, we won’t tell you how much. But it’s money well spent!

Do you have questions about the economics of law practice? Are you thinking of starting your own law practice? We want more people to work in our field, and we’re happy to mentor anyone who is thinking of giving it a try. And, as always, we welcome comments and will reply to all that we can.

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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., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

Despite taking longer than expected, Secretary of Homeland Security Alejandro Mayorkas finally designated Afghanistan for Temporary Protected Status (TPS) on March 16, 2022.

As we discussed in a recent column, the Secretary of Homeland Security may designate a country for TPS for various reasons.

In Afghanistan’s case, Secretary Mayorkas based the designation due to the ongoing armed conflict and other conditions, such as human rights abuses at the hand of the Taliban, that keep Afghan nationals from returning to Afghanistan safely.

Afghan nationals who have resided in the United States since March 15, 2022 will be eligible to receive temporary relief from removal from the United States and have the opportunity to work legally. Those who arrive after March 15 will not be eligible. TPS for Afghans will be valid for 18 months. We are still waiting on an official Federal Register notice, which outline the procedures for Afghan TPS; therefore, until that happens, no Afghan nationals should attempt to apply for TPS.

Although they will not qualify for TPS, Afghans abroad may still have opportunities to come to the United States. For example, U.S. Citizenship and Immigration Services is still accepting applications for humanitarian parole, which allows a foreign national to come temporarily to the United States for urgent humanitarian reasons.

Importantly, because the U.S. Embassy in Kabul is closed, Afghan nationals must be able to get to a third country for humanitarian parole processing.

Upon arrival in the United States, Afghan nationals may also qualify for asylum. They should speak with a qualified immigration attorney about the strength of their asylum claim, and many local nonprofits and lawyers are assisting Afghan nationals low or pro bono.

Additionally, Afghan nationals who assisted the U.S. government may also speak with an attorney about the viability of a Special Immigrant visa or request assistance with Special Immigrant Visa applications that are already pending.

As always, we welcome comments and will reply to all that we can.

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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., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

The United States and the countries of the European Union are offering differing levels of protection to Ukrainians fleeing the war.

These differences reveal deeper characteristics of the immigration bureaucracies, and the political systems that operate them, in both sides of the Atlantic. In this (mildly editorializing) explainer, we will explain the differences between the European and American approaches, and provide our assessment, as practitioners, about the workability of the U.S. approach.

As always, we welcome comments and will reply to all that we can.

Europe: Temporary Status Now, Benefits in the Interim, Adjudication Later

Every single country in the European Union that borders Ukraine currently offers free entry to Ukrainian refugees. Although the European authorities ask that Ukrainian refugees carry valid travel and vaccination documents with them, failing to bring those documents will not prevent you from entering the EU. No visa is necessary to enter.

Once a Ukrainian refugee enters an EU border state, she can move at will throughout the Union. She is eligible for an immediate grant of temporary immigration status until March 4, 2023. (This temporary protection will not prevent her from applying for permanent protection via the asylum processes of each member state.) She is eligible for social welfare assistance, medical care, education for her children and eligible to work.

This one-year temporary status will be extended to a full three years if the war continues.

United States: Temporary Status for People Already Here, Promises of Future Resettlement, No Visas, Unpredictable Behavior at the Border

The United States has taken a broadly different approach to Ukrainian refugees, characterized mainly by a preference for pre-existing law.

  • The United States announced (but has not implemented) Temporary Protected Status for Ukrainians present in the U.S. on March 1, 2022. We discussed this at length in our last Statutes of Liberty — read all about it.
  • USCIS has announced special flexibility for Ukrainians who are looking for certain immigration benefits, including (1) changing visa status, (2) expedited processing of advance parole requests, (3) easier rules for obtaining off-campus employment for Ukrainian students, (4) faster decisions on petitions and applications, including work permit applications.
  • President Biden promised to admit “up to” 100,000 refugees to the United States through the U.S. Refugee Admissions Program.
  • CBP has begun to admit Ukrainian nationals at the US-Mexico border who are seeking asylum under slightly looser guidelines, providing exemptions from Title 42 restrictions. These applicants are being paroled into the United States, which allows them to live and work here for one year while seeking another immigration status.

What are the differences between the U.S. and European approaches?

The difference is legal formalities; the U.S. is insisting on them, and the European Union is not. That difference is a big one, and it is creating – as law always does — absurdities. For example:

  • Ukrainians applying for visitor visas to enter the United States are being turned down right, left and center, because — as a matter of legal formality — applicants for a visitor visa must prove that they intend to return home within 90 days. That legal formality doesn’t apply at the border, so, predictably, Ukrainians are showing up at the border. This is a stupid combination of policies. (Dear Uncle Sam: If you intend to admit Ukrainians tout suite, don’t make them fly to Mexico first. If you don’t intend to admit them, don’t admit them.)
  • The U.S. is working within its existing legal framework to provide protection for Ukrainians already here — even previous visa violators –– but is offering nothing but a promise of future resettlement to people who aren’t here already. That promise is probably empty, because the U.S. refugee resettlement bureaucracy can’t handle the promised flow.

It is hard to say why the United States is pursuing a formalist approach to managing refugee flows. Simple proximity is probably the most important reason; the Europeans have nearly a million refugees at their doorstep, and we don’t. But, as practitioners in this area, we think that another important limitation on the U.S. response is the unmanageability of the bureaucratic machinery.

Without Congressional action, the Biden administration can only operate within the formal structure of pre-existing law, and the immigration machinery, divided as it is between bureaucracies with differing remits and differing levels of competence, is neither nimble nor humane.

We have seen Congressional action before, in previous refugee crises, like the breakup of the Soviet Union and the collapse of the South Vietnamese government. If the U.S. is going to do its part to shelter those fleeing the conflict, Congress is going to have to get off its collective duff and pass a law.

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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., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

As the war in Ukraine continues, the United States government has taken steps to protect Ukrainians in the United States. On March 3, 2022, the Secretary of Homeland Security, Alejandro Mayorkas, announced that Ukraine has been designated for Temporary Protected Status, or TPS, for 18 months.

Our immigration laws allow the Secretary of Homeland Security to designate specific countries for TPS. The Secretary may designate an entire country or part of a country for TPS if (1) there is an ongoing conflict and returning nationals to that country would pose a threat to their personal safety; (2) if there has been a natural disaster and the country in question cannot handle an influx of returning nationals; or (3) there are existing extraordinary circumstances that prevents a country’s nationals from returning to the country safely.

TPS grantees will benefit from not being physically removed from the United States while their TPS is current. Additionally, they can apply for work authorization and a social security number. In the case of Ukraine, Ukrainian nationals will be eligible for TPS if they were continuously residing in the United States since at least March 1, 2022 and do not have negative discretionary factors.

TPS applicants should be prepared to pay an estimated government filing fee of $545.00 if applying for both TPS and a work permit. Without a work permit, the estimated government filing fee is $135.00. Always check the instructions and USCIS webpage to ensure that you are submitting the correct government filing fee.

Unfortunately, the government has yet to issue an official notice with the Federal Register, which dictates any other specific rules or guidelines for Ukrainian TPS. Unless and until that happens, no one eligible for Ukrainian TPS should apply. Once the government is able to accept Ukrainian TPS applications, we will be here to help.

We also wish to use this opportunity to highlight a good cause that one of our clients brought to our attention.

The St. Andrew Ukrainian Orthodox Cathedral in Silver Spring, Maryland, is collecting monetary, medical, food and personal hygiene donations to aid Ukrainians in Ukraine. They have even created an Amazon list of items that are in high demand so you can donate without making a trip to drop off your donation in person. If you are interested in donating or helping via the church, here is a link to their webpage with all the relevant information.

As always, we welcome comments and will reply to all that we can.

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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., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

If You Oppose the War in Ukraine, Apply for Asylum with Our Office, for Free

Like most Americans, we reacted to news of the Russian attack on Ukraine with horror.

There are a few things that we, as immigration lawyers, can do to help.

The first thing we can do is offer our advice and assistance to any Russian diplomats and government employees in Washington. Ordinary Russian citizens are protesting their government’s decision to invade Ukraine, at great risk to themselves and their families.

If you are a Russian diplomat or government employee in the Washington, D.C. area, and you oppose this invasion, and you fear that your opposition to your government’s policy will put you and your family in danger, our office will be glad to help you and your family apply for political asylum in the United States, for free. Feel free to contact us by whatever means you consider safest and most secure.

The second thing we can do is provide information to Ukrainians living in our area about how our immigration laws may be able to offer them some assistance. The U.S. government is considering offering temporary protection (“TPS”) to Ukrainians in the U.S., but that has not happened yet. Do not apply for that benefit until it is available. If you are here on a visitor visa, you might consider applying to extend your stay. We can help with that, and answer any other questions you have about how to remain safely in the United States.

In addition, we want to share information about departure from Ukraine for those who hold valid travel documents. Pre-departure COVID tests are no longer required. Of course, in the absence of civilian air travel in Ukraine, this information is likely to be more useful to Ukrainians who have already left Ukraine for other countries with functioning civil air transport.

The third thing we can do is provide information for Americans in Ukraine. The State Department has released guidance on how to leave Ukraine. Here it is. Please stay safe.

As always, we welcome comments and will reply to all that we can.

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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., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

USCIS’s inbox is going to look like this very, very soon

This year, the first week of March is the biggest week of the year for business immigration: H-1B season.

The H-1B visa is a visa for foreign workers who will work in a specialty occupation in the United States on a temporary basis. This means that foreigners who have specialty degrees — software programmers, accountants, lawyers — can work in the United States as long as they have a U.S.-based employer willing and able to hire them. The theory here is that workers in specialty occupations contribute greatly to the U.S. economy. (We agree with this theory, with the possible exception of lawyers who don’t advertise on ARLnow.)

Demand greatly exceeds supply for these visas. Each fiscal year, there is a cap of 65,000 visas and a separate cap of 20,000 visas, known as the master’s cap, for foreign nationals with a U.S. master’s degree or higher, for a total of 85,000 available visas. Most employers submit applications for foreign workers under this program in the hope that foreign workers will start work at the beginning of the next fiscal year, on October 1, 2023.

For the upcoming H-1B cap season, USCIS will continue to use the electronic registration process. Between March 1 and March 18, 2022, all employers seeking to file cap-subject petitions, including advanced degree petitions, must electronically register and pay a $10.00 fee to USCIS for each petition they wish to file. USCIS will then select registrations at random, and only those registrations chosen will be eligible to file a full cap-subject petition.

Demand is indeed intense. Usually, the number of registrations exceed the annual cap of 85,000 visas so USCIS makes random selections from those candidates who have registered. Once a registration is selected by USCIS, the employer has 90 days from the day to notification to file the petition.

If there are not enough registrations, or if employers fail to file the petition for the selected candidate, USCIS may continue accepting submitted registrations or open a new registration period.

Last year, after the initial lottery and the subsequent 90 day filing deadline for selected petitions, USCIS determined that the cap had not been met, thus triggering a second lottery where it selected an additional 27,717 registrations. A third lottery was announced in November, with the selection of an additional 16,753 registrations.

Electronic filing has proven to be a useful and cost-saving tool for employers as they do not have to file the whole H-1B petition and wait to see if their applications have been selected. The process, is however complex, and given the short timeframe to apply once a selection has been notified it is important to consult with an experienced immigration lawyer who can help companies navigate this new process. We are here to help.

As always, we welcome comments and will reply to all that we can.

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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., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

We’ve written before about the backlog in the U.S. immigration courts. It’s bad — it’s really bad, and getting worse, and it’s getting worse in new and interesting ways.

The good folks at Syracuse University’s TRAC system, who usually cultivate the same authorial blandness as The New Bill James Historical Baseball Abstract, describe it as an “avalanche of cases” which is “accelerating at a breakneck pace.” When our firm founder began practicing in 2011, there were about 250,000 noncitizens awaiting trial. Now, there are 1.6 million, and the quarterly increase is up to 150,000.

Let’s consider a few intuitively reasonable (but false) explanations for why this is happening:

  1. Trump did it.

No, he didn’t. The Trump Administration certainly put the pedal to the floor on immigration enforcement in all sorts of ways, but the peak quarterly number of cases sent to immigration court was in FY 2019 — 78,000. That’s roughly half of the current figure.

(We hasten to add that the backlog got much worse under Trump. The immigration courts started in January 2017 with a backlog of 542,411 and ended with 1.2M. But the numbers don’t lie — the Biden administration has added another 400,000 in one year; it took the Trump administration four years to exceed that number.)

  1. COVID did it.

No, it didn’t. There are two important metrics for measuring the efficiency of an assembly line: the number of widgets that go in, and the number of widgets that go out. In immigration court, we call those “Case Initiations” and “Case Completions.” COVID lowered the case completion rate from 40,000 per month to about 6,000 per month in the worst stages of the pandemic, but case completion rates are back up to 22,000 per month. That drop — 18,000 per month, from peak efficiency to current efficiency — represents only about 20% of the quarterly increase in the backlog.

So, what’s the main cause? The answer is simple: The Department of Homeland Security is initiating many more cases. We don’t know the reason why, but, digging into the numbers, our suspicion is that these cases are starting at the border. The Trump Administration’s “adjudicate cases at the border and keep them out” approach failed, and, so far, the Biden administration’s “rapid, fair, and orderly” approach is failing, too.

Our sympathies go out to our colleagues at the Executive Office for Immigration Review

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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., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

In our federal system, states and localities have primary police power and the federal government has primary authority over immigration enforcement.

This leads to predictable conflicts over policing and immigration enforcement. For years, states have tried to control immigration through state law, and localities have tried to control immigration enforcement by ordinance. For its part, the federal government has tried to leverage local law enforcement to increase its own operational capacity.

You may recall that a few years ago, Arizona enacted SB 1070, which allowed state and local law enforcement to question, arrest and detain those who they suspected were undocumented. The law made its way to the Supreme Court, which stuck down all but one of the key provisions, citing federal preemption.

This power struggle has reappeared very recently in Texas. The Governor of Texas, Greg Abbott, instituted a border security initiative which includes filing a misdemeanor charge of trespassing against immigrants who cross the U.S.-Mexico border without proper papers. However, on January 13, a Travis County, Texas judge threw out the charges, finding that the initiative to arrest immigrants on state trespassing charges unconstitutional. The judge ruled that the U.S. Constitution’s Supremacy Clause, which states that the Constitution is the supreme law of the land, prohibits such a law because the federal government has the sole power to regulate and enforce immigration under the constitution.

So, what does the Constitution say about the federal government’s power to regulate and enforce immigration? While no specific section of the Constitution specifically says the federal government has the sole responsibility to regulate and enforce immigration, various sections in the Constitution notate powers that only the federal government has, and those together have been interpreted to imply the power to regulate immigration. Those sections include the power to declare war against foreign states, to regulate commerce with foreign states, and to establish rules regarding naturalization.

Laws like those in Texas and Arizona are almost bound to fail because of these federal powers. The federal government, through Congress, has already established a system for regulating immigration, including initiating deportation proceedings against a noncitizen. Congress has also established laws regarding the detention of noncitizens as well as the naturalization of noncitizens. The power from the Constitution, plus the federal law already established, bars the states from creating their own immigration laws and rules regarding naturalizing noncitizens.

Conversely, sanctuary city initiatives — in which local jurisdictions simply decline to cooperate with federal immigration authorities — have generally survived judicial scrutiny. It is worth noting that Arlington does not describe itself as a sanctuary jurisdiction. Arlington is quite welcoming to immigrants — indeed, Arlington has gone out of its way to fund legal defense for immigrants facing deportation — but Arlington does cooperate with federal immigration authorities in a limited number of cases.

We expect to see the Texas Governor Abbott’s initiative ultimately struck down, as these cases will more than likely make their way through the court system.

As always, we welcome your thoughts and questions and will do our best to respond.

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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., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

Last month, we gave you our review of what 2021 brought to the wild world of immigration law. This month, we want to give you a peek into the crystal ball and tell you what we think 2022 will bring.

Fee Increases

We predict that DHS will succeed in increasing its fees, though not to the extent proposed during the Trump Administration. This fee increase will have two parts — increases to fees paid to the State Department for visa applications, like student visas and visitor visas — and increases to fees paid directly to USCIS for all sorts of immigration benefits, including green cards, work permits, naturalization and employment-based visas. It is quite possible that USCIS will expand the availability of Premium Processing for additional types of employment-based immigration benefits.

Whether USCIS needs the additional money is a tough question. It is beyond dispute that delays have skyrocketed. Whether additional money would solve the problem is a matter of dispute; we tend to think that USCIS’s problems are operational, not financial.

Immigration Courts Open for Business

The Immigration Courts — including our local court in Arlington — have opened and closed as the waves of COVID have swept through our area. At the moment, the Omicron variant has led the Arlington Immigration Court to stop holding crowded preliminary hearings, but trials (“individual hearings”) are continuing as normal.

Making predictions about the immigration courts means making predictions about COVID, which means making a fool of yourself in public. Fortunately, as Statutes of Liberty readers know, we’re more than willing to do that.

We predict that the Omicron variant will have little impact on the functioning of the immigration courts. Trials will continue. Perhaps the immigration court backlog will even begin to decline. Hope is the thing with feathers –/that perches in the soul…

Asylum Backlogs Will Get Worse

Several factors will combine to make U.S. asylum offices even more backlogged than they are now. First of all, the Remain in Mexico program will die. Litigation to preserve it cannot, in the long run, prevail against the Biden Administration’s deep unhappiness about being forced to continue it. Second, as COVID-related restraining measures slowly are repealed, the continued use of Title 42 will end, either voluntarily or by injunction. The end of those two programs will make it easier to come to the U.S. to seek asylum, and the incredibly tight labor market will increase the financial incentive to do so.

We respect our local asylum office and appreciate the work of asylum officers, but we have no confidence that DHS will staff up the asylum offices sufficiently to cope with any increase in applications.

Immigration Reform Won’t Happen

Congress last acted to reform U.S. immigration law, in a significant way, in 1965. That was a long time ago; the distance between 1965 and the present is the span between 1965 and the Roosevelt Administration (TR, not FDR).

Immigration reform came close to happening in Build Back Better. It came closer in 2004. It won’t happen this year. Legislative action to formalize DACA into a permanent status won’t happen either. We’ll continue to muddle through.

Do you have predictions about what will happen next year? Tell us in the comments. As always, we welcome your thoughts and questions and will do our best to respond.

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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., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

COVID-19

COVID-19 had systemic effects on the U.S. immigration system. We’ve had travel bans, travel bans reversed and new vaccination requirements for foreign nationals. We’ve also seen gigantic delays at U.S. Embassies abroad.

October brought the biggest changes when it comes to the intersection of immigration and COVID-19. First, beginning on October 1, immigrants applying for green cards either within the United States or at U.S. embassies abroad are required to be fully vaccinated against COVID-19. There are a few exceptions, and various vaccinations are acceptable apart from the “big three” we have in the United States. This vaccination requirement is an addition to the other vaccines that were previously required, like the influenza and chicken pox vaccines. We expect this requirement to stick around for the foreseeable future.

October also marked the month when geographic travel bans were reversed and the Biden Administration issued a new proclamation requiring vaccination for travel to the United States. Previously, visitors and other temporary immigrants from the Schengen Area, Brazil, India and some other countries were not permitted to travel to the United States unless they had spent a specific amount of time in a third country without testing positive for COVID-19. Now, those geographic restrictions no longer apply and now temporary immigrants, including visitors, must show that they are vaccinated against COVID-19, with minor exceptions. Some exceptions include children under 18, diplomats and airline crew members.

DACA and DREAMers Remain in Limbo

Federal courts have made a confusing series of decisions regarding the Obama-era DACA program. Impact litigators on both sides have obtained competing orders for injunctive relief in different federal courts, and so, like everyone’s favorite throwback Facebook status, it’s complicated. The current status of the DACA program is as follows: those are who are eligible for DACA but never filed before can file their initial applications, but the immigration authorities are holding onto those applications until further notice; therefore, new applicants should not expect a decision on their initial applications any time soon. Those who previously had DACA before the federal court litigation may still file and renew their DACA for the time being.

Despite lots of hope from many about relief for DREAMers, we still have not seen any major changes come out of Congress for DREAMers. We also haven’t seen the DACA program come through a notice and comment period via the Administrative Procedures Act, so we expect this limbo to remain for the time being.

Still No Amnesty

As we predicted, Sen. Joe Manchin (D-WV) — Lord of the Black Hills, First of His Name — has torpedoed  the Build Back Better Act. Even if he hadn’t done so, our view was that the immigration provisions of BBB were toast, due to the complex requirements of the reconciliation procedure. Going forward, don’t expect significant immigration reform to come out of the current Congress. But don’t worry — things can still get worse! The CW is that Republicans will take back both the House and the Senate in 2022, which means divided government and, especially on hot-button questions like immigration, guaranteed gridlock.

As always, we welcome your thoughts and questions and will do our best to respond.

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