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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 Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

The pointy-headed boss is just grateful that he can grow a beard.

There’s plenty of immigration news this week, and plenty of business to do, but the point of Thanksgiving is to stop, just for a moment, to take stock and appreciate the blessings we all have.

“To these bounties, which are so constantly enjoyed that we are prone to forget the source from which they come, others have been added, which are of so extraordinary a nature, that they cannot fail to penetrate and soften even the heart which is habitually insensible.” These were the words of President Lincoln at an extraordinarily difficult Thanksgiving. In our own small way, we want to try not to forget.

We are particularly grateful, this year, for the skills and industry of Mr. Gabino Marquez Cabrera, who helped us to build out our office space. Mr. Marquez Cabrera did his work on time, on budget, and with a level of craftsmanship that even the pointy-headed boss can appreciate. We hear that some people have been having trouble finding contractors. Mr. Marquez Cabrera is the solution to that problem, and can be reached at (571) 575-3528 or [email protected].

This door wasn’t here before Mr. Marquez Cabrera installed it perfectly.

We are also very grateful for the work of Jack Lenehan, who developed and maintained our new website. Jack is a fancy front-end dev, and (I believe) is well, well beyond making websites for college buddies, so this isn’t a business plug for him. We’re just grateful he was able to help us out. If you’re a fancy Silicon Valley person not named Sam Bankman-Fried, check out Jack’s work here.

Jack Lenehan knows what’s up.

Finally, the pointy-headed boss wants to express his thanks to Doran Shemin and Laura Lorenzo, the other lawyers at our happy little operation. Doran and Laura put in long hours to help hundreds of families every year. I’m grateful, on their behalf, for them.

Yes, we’ve used this picture before. So sue me.

Don’t ask any questions about immigration this week. We’re busy eating leftover turkey sandwiches, and you should be, too. We’ll be back in a fortnight for more honest coverage of immigration law in our area.

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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 Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

One of the chief complaints we hear as immigration lawyers is that immigration processes take forever.

U.S. citizens who file a petition on behalf of their spouses are taking at least a year in most places. Many employment-based green card applicants are waiting at least two years to receive their green cards. And asylum? The average wait time for an interview in the D.C. area is about five years. Trust us; we hate it, too.

However, if you’re tired of waiting for a decision, there is a solution. Sue the government in federal court! Here’s the deal:

In many types of immigration cases, a statute or regulation dictates that the immigration authorities must make a decision on application within a certain period of time.  For example, Congress specifically stated in the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 that petitions for juveniles that have been abused, abandoned, or neglected by one or both parents, must be adjudicated within 180 days.

Under the Administrative Procedure Act, or APA, Congress created the ability to sue an agency for failing to act when the agency is required to act, or when the action is unreasonably delayed or unlawfully withheld. A good example of a decision unlawfully withheld is a special immigrant juvenile petition that must be adjudicated in 180 days. However, you can also file an APA lawsuit regarding discretionary applications, like green card applications. Just because the immigration authorities have the discretion to approve or deny an application, it does not mean that the authorities can sit on the case forever.

Additionally, under the Mandamus Act, a lawsuit can be filed to compel an agency to act. In these cases, the plaintiff, or the person suing the agency, must show that (1) she has a clear right to the relief requested; (2) the agency has a clear duty to perform; and (3) there is no other adequate remedy available.

An important note: The goal of the lawsuit is to receive a decision, whether negative or positive. It is not to compel an approval. The only thing the judge can do is order the agency to take action in the pending immigration matter.

In the majority of cases, these lawsuits do not go all the way to a full trial. Usually, the government does not want to deal with the lawsuit, and instead will make a decision on the application or petition so that the case can be dismissed.

If you are tired of waiting around for USCIS, the Department of Labor, or the Department of State to make a decision in your case, we recommend that you speak with an experienced immigration attorney that handles these types of cases in federal court. Picking the right federal court in which to sue can be very tricky, and each court (and sometimes each judge) has their own specific rules that you must follow or else you risk having your case rejected. You also have to provide a copy of your complaint to many different offices, and failure to do so can also result in the case being dismissed.

As always, we welcome questions and comments. We’ll answer all 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.

On Friday, October 21, the Department of Homeland Security announced that Ethiopia has been designated for Temporary Protected Status for 18 months.

Washington D.C. has the biggest Ethiopian community outside Africa, so this is huge news. We’re here to explain what it means. We know that Ethiopians in our area will be reading this, so we’re going to focus on facts and procedure here. If you’re curious about our editorial opinions, ask away in the comments.

First, a quick explainer on what TPS is, and how it works.

Temporary Protected Status, in theory, is a temporary measure meant to alleviate suffering in a country suffering from war or natural disaster. The U.S. Code permits the Attorney General (or, in modern practice, the Secretary of Homeland Security) to ‘designate’ countries which meet this description, and then provide temporary work permits, and temporary deportation protection, to nationals of the designated country who are in the United States on the date of the designation.

The process of applying for TPS is relatively simple. The applicant submits two applications: an application for TPS status on Form I-821, and, usually, an application for employment authorization on Form I-765. Fees vary depending on age. The Secretary of Homeland Security sets an ‘initial registration’ period for applicants, and then, if TPS is renewed, a ‘re-registration period.’ Miss these registration windows at your peril.

If you’re an Ethiopian who wants to apply for TPS, here’s what you need to know:

  • TPS is temporary. Sometimes — rarely — TPS designation ends. (We covered the attempt to end TPS-El Salvador in these pages. That attempt is still going more than four years later!) So, although TPS is a good thing, it is a bad substitute for permanent status. If you have an asylum claim, don’t let it drop just because you have the ability to apply for TPS!
  • The TPS application period for Ethiopia has not opened up yet. If a lawyer, an unethical ‘visa consultant,’ or ‘tax preparer’ (applicable soundtrack) offers to apply for you, do not pay them. TPS designation is a great benefit, but it also creates opportunities for scammers.
  • Start gathering your documents. Your lawyer will want to see your Ethiopian passport or your birth certificate, plus evidence that you have been physically present in the United States on or about October 20, 2022. Evidence of physical presence includes:
    • Your 2022 tax returns (file them next year!)
    • Employment records, if you have them.
    • Rent receipts
    • School records for you or your children
    • Medical records concerning treatment for you or your children
    • Religious records describing your attendance at a place of worship
    • Other documentary evidence which shows that you live here. Your lawyer can help you find more.
  • Put money aside. You can expect USCIS to charge up to $545 for your initial application.
  • Make a plan. Find a trusted place to apply for TPS after the initial registration period opens.

Once the application windows opens, our law firm will be delighted to help Ethiopians who want to apply for TPS. You can call us at 888-389-8655, or make an appointment via Calendly, here. But we know that, with hundreds of thousands of Ethiopians in the area, handling all of these cases is going to be a team effort. In that spirit, here are two other trustworthy local partners for Ethiopians who need help applying for TPS.

The Ethiopian Community Development Council

ECDC is located right at 901 S. Highland Street on the Columbia Pike Corridor, and has been a voice for Ethiopians in our area for almost thirty years. We’ve presented on immigration law at ECDC — they’re great folks.

Catholic Charities of the Diocese of Arlington — Hogar Immigrant Services

Catholic Charities of the Diocese of Arlington is an excellent non-profit legal services center. They can handle your TPS application for a modest fee, and they’re wonderful people.

As always, we welcome questions and comments. We’ll answer all 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 Biden Administration has announced a new humanitarian form of relief.

The program, as yet unnamed, closely tracks the “Uniting for Ukraine” program. This time, the program sets out to help Venezuelans leave Venezuela and come to the United States legally.

Similar to the Uniting for Ukraine, up to 24,000 Venezuelans with sponsors living in the United States will be permitted to apply for parole. Parole is a special travel document issued to noncitizens who are coming to the United States for humanitarian reasons. Venezuelans who qualify and who are approved will be able to travel the United States by air, temporarily live in the United States, and apply for work authorization.

To qualify, the Venezuelan national must have a sponsor in the United States who is willing to sign a contract called an Affidavit of Support. This contract shows the U.S. government that the individual coming to the United States will have adequate financial and other support.

Additionally, the individual must go through a series of national security and public safety screenings to ensure that he or she does not pose a threat to the United States or the public. Finally, the individual must obtain all U.S.-required vaccinations.

However, not all Venezuelans will qualify. A Venezuelan national will be disqualified if he or she has (1) been ordered removed (deported) from the United States in the last five years; (2) crossed a U.S. border illegally after the date of announcement, October 12; (3) irregularly entered Mexico or Panama after October 12; (4) is a permanent resident or dual national of any other country other than Venezuela; (5) has refugee status in any other country; or (6) has not complied with vaccination or other public health requirements.

Further, this program also states that Venezuelans who attempt to cross a U.S. border illegally will be subject to Title 42 expulsion. As we previously explained, Title 42 of the U.S. Code continues to be used to expel noncitizens from the United States under the guise of protecting public health.

While we certainly approve of the new pathway to enter the United States legally, the continued use of Title 42 to expel noncitizens puts asylum seekers at risk. Some may be in so much danger that waiting to go through all of the screening and other procedures under the parole program will not be possible; escape and traveling by land may be the only option.

We hope this program will be a success, similar to Uniting for Ukraine, but we are also concerned about the Biden Administration’s continued (probably pretextual) use of Title 42 to expel asylum seekers.

As always, we welcome questions and comments.

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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.

Though the mills of God grind slowly; Yet they grind exceeding small; Though with patience He stands waiting, With exactness grinds He all.

Henry Wadsworth Longfellow contemplating DACA’s chances before the Fifth Circuit

The federal courts grind very slowly, but they grind exceeding small. The DACA program is about to be shuffled into a very large set of grinding wheels before the Fifth Circuit, and the smart money suggests that it might be turned into powder.

We’re here to explain how we got here, what the Biden Administration is trying to do about it, and what might happen next.

How did we get here?

In 2015, twenty-six states sued the Obama administration in an attempt to stop an expansion of DACA. That litigation, before U.S. Federal District Court Judge Andrew Hanen, stopped the planned expansion of DACA. During the pendency of that litigation, Donald Trump was elected President of the United States, and the Trump administration began making plans to rescind DACA, which would have mooted the case before Judge Hanen.

The Trump Administration’s attempt to rescind DACA failed, thanks to sloppy regulatory work by the Administration, which Chief Justice Roberts red-penciled with gusto in the Regents decision. (We covered that failure in these pages.) The Regents decision prevented the rescission of DACA, thereby un-mooting (as it were) the question of DACA’s constitutionality before Judge Hanen.

The litigants hostile to DACA therefore re-raised the question of DACA’s constitutionality before Judge Hanen. On July 16, 2021, Judge Hanen issued an order which stopped just short of rescinding DACA.

In a lengthy opinion, Judge Hanen described the reasons why (1) in his view, the promulgation of DACA was illegal, and (2) therefore the plaintiffs should prevail, but (3) stopped short of vacating DACA entirely, because (4) Judge Hanen expected the question to be re-examined on appeal.

Judge Hanen was right: the question was re-examined on appeal, before the Fifth Circuit Court of Appeals. A three-judge panel threw substantial judicial shade (“I’m just surprised that your lead case isn’t even in your brief”) on the arguments presented against Judge Hanen’s order.

The Fifth Circuit is expected to issue a ruling in the coming days. Judge Hanen’s order is likely to be upheld. That is how we got here.

What is the Biden Administration trying to do about it?

According to news reports, the Biden Administration is preparing to issue orders to ICE to de-prioritize deporting DACA recipients, in the event of a loss before the Fifth Circuit.

By doing this, the Biden administration would be reasserting its prosecutorial prerogatives in a way that would be more difficult for the courts to block. As both Judge Hanen and Justice Roberts emphasized in their respective opinions, DACA has two components – the discretion not to prosecute, and the grant of benefits – chiefly, employment authorization – consequent on that decision not to prosecute. The Biden administration is likely working to preserve the first of those two components in the event that the second component is removed from play.

What might happen next?

We have no crystal ball, but we predict the following.

  • Judge Hanen’s summary judgment order will be upheld by the Fifth Circuit Panel.
  • A request for en banc rehearing will immediately follow to the entire Fifth Circuit.
  • No matter what the outcome of that en banc rehearing is, the losing side will file a petition for certiorari before the Supreme Court.
  • Justice Roberts’ fine head of hair will increasingly resemble Henry Wadsworth Longfellow as this litigation rumbles on.

We’re here to answer all questions, major and minor. Ask them in the Comments. We’d love to hear from you.

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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 are delighted to share the big news with our readers at ARLnow: we opened a new office in Falls Church! And we’re hiring! And we’re having a party to celebrate opening the new office.

Time for a quick Q&A plus some sweet, sweet amateur photography.

Q: What’s your new address?

A: 306 N. Washington Street, Falls Church VA 22046.

Q: Pix or it didn’t happen!

A: We are here to satisfy reader expectations.

Q: Did you close your old office at 5233 Wilson Boulevard?

A: Yes. We keep prices low for immigrants. This isn’t about building a real estate empire.

Q: Why did you move?

A: Have you ever tried to pack three lawyers into 400 square feet? It’s rough! We have 2000 square feet now, plus another 1200 square feet to sublet. We’re so happy.

Q: Will you keep advertising on ARLnow?

A: Yes! ARLnow covers Falls Church. Plus, we still love local journalism and want to support it.

Q: You’re hiring? I’d like to ask a softball question so you can provide more details. What’s your favorite color?

A: Glad you asked: Blue. Also, we’re looking to hire a new immigration lawyer! Recent law grads are welcome to apply. Midcareer lawyers who want to try a new field are welcome to apply. We pay well and offer generous benefits. Email [email protected]. He does the hiring.

Q: Are you looking for summer law associates?

A: Yes, that too. And we’ll pay them. Email [email protected].

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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.

On June 15, 2012, the Obama administration created Deferred Action for Childhood Arrivals, or DACA.

Congress had passed no law — indeed, the Obama Administration argued that DACA was an attempt to fix a situation where Congress had refused to act — and so DACA did not have the same permanence as ordinary legislation. The Trump Administration attempted to rescind DACA, and only failed to do so due to technical errors. (There are technical errors, and then there are technical errors that quietly enrage Justice Roberts. These were the latter kind.)

Until this week, DACA remained a purely executive action. This week — finally — the Department of Homeland Security published a Final Regulation codifying DACA.

Does this make a difference? The correct answer is: We’ll see. Explaining why requires a bit of background on modern American legislative practice.

I’m Just a Bill” sets out the platonic form of legislation. (A classic, by the way, and if you can get away with it at work, watch it again. Try not to smile.)

The process of regulatory issuance is even longer!

The New Deal greatly expanded the role of the Federal government in American life. New federal agencies regulated prices, built infrastructure and set regulatory standards in ways which were previously the province of state and local governments. After World War II, Congress, in reaction to the vast quasi-legislative power of New Deal agencies, passed the Administration Procedure Act, which established standard processes for promulgating and evaluating federal regulations.

In our current system, regulations have the force of law. You can be arrested, fined and jailed for regulatory violations. Other than a bit of (relatively mild) judicial scrutiny, regulations are coequal in dignity to I’m Just a Bill.

Executive Actions — or Presidential Proclamations, or Executive Orders, all of which are subtly different — are neither laws nor regulation. Instead, these steps announce policies which — in the opinion of the Executive — the Executive has the Constitutional authority to enact without either a legislative act or regulatory promulgation.

DACA was an Executive Action. As of this week, the exact standards of DACA have been promulgated, via the ordinary processes, as a regulation.

Meanwhile, litigation over the Constitutionality of DACA continues in the federal courts. Plaintiff states — led by Texas — still seek to have DACA declared unlawful, on the grounds that DACA was — among other things — improperly promulgated as an Executive Action, when it should have gone through the ordinary regulatory process.

By issuing these regulations, the Biden Administration has removed that argument from play. However, the plaintiffs can (and, in our judgment, probably will) continue to argue that the new DACA regulation violates the Constitutional separation of powers, and, perhaps, the Supreme Court’s latest addition to American constitutional law, the Major Questions Doctrine.

We’re here to answer all questions, major and minor. Ask them in the comments. We’d love to hear from you.

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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.

Back in 1952, Congress determined how the total number of immigrant visas (green cards) would be allocated into different categories, both in family and employment-based cases.

Those visas were further allocated based on the applicant’s country of birth. This is where the “wait in line” part of immigration comes in.

For example, Indian nationals who are applying for a green card under employment-based category two, which is for professionals with an advanced degree or individuals of exceptional ability, are waiting approximately ten years to actually be able to apply for the green card because a visa is not available. Currently, only Indian nationals in this category who had a petition filed on their behalf on or before February 15, 2012, are eligible to receive a green card.

Congress also dictated that if any family-based visas went unused, those visas could be pushed over to employment-based categories. This was done to ensure that all available visas are used during each fiscal year.

Just like everything else, COVID-19 had a major impact on U.S. embassies and consulates, resulting in very few visa interviews and approvals. Additionally, USCIS did not use 66,781 visas by the end of fiscal year 2021; thus, number of employment-based visas for fiscal year 2022 has been bumped up to approximately 280,000.

Now, the two agencies are rushing to issue as many visas as possible before the end of the fiscal year, which ends on September 30. As of June 30, the two agencies had only issued 176,281 visas, leaving approximately 103,719 visas unaccounted for.

USCIS cites a number of reasons why more visas have not been used thus far, even with the fiscal year end quickly approaching. First, USCIS has had issues with its capacity to adjudicate cases generally, partially due to the pandemic along with resource constraints during the prior administration.

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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 Biden administration has pledged to ‘shorten from years to months‘ the timeline for processing asylum claims.

As part of this big push, Customs and Border Protection is now placing asylum seekers directly in immigration court. There’s just one problem: CBP is forgetting to actually file the charging document, so, when the immigrant shows up to court, the Immigration Judge has no alternative but to dismiss the case.

You may recall that not long ago, the Supreme Court determined that for DHS to issue a statutorily-compliant immigration charging document, or NTA, which initiates deportation proceedings against a noncitizen, DHS must include the date and time of the hearing on the NTA itself. For years, DHS had only included that the hearing would occur on a “date and time to be set,” and let the immigration court schedule the eventual hearing. However, the Supreme Court said that DHS must actually schedule the hearing with the immigration court and include the hearing place, date and time for the NTA to be statutorily compliant.

Recently, DHS has been following this rule, particularly in cases involving noncitizens who enter through the U.S. southern land border. Great, right? Well, only partially.

The Transactional Records Access Clearinghouse (“TRAC”) at Syracuse University issued a report on July 29, 2022 that describes how DHS is actually timely-filing very few charging documents, which is resulting, and will result, in mass dismissals of cases against noncitizens.

Here’s what appears to be happening: noncitizens arriving at various ports of entry and through the land borders encounter DHS Customs and Border Protection (CBP). CBP decides that it would be appropriate to initiate deportation proceedings against the noncitizen. CBP then enters the immigration court scheduling system, and finds an open date and time for a hearing. CBP issues the NTA with that date and time, and then gives the NTA to the noncitizen. The noncitizen then leaves CBP custody, under the impression that he or she will have a hearing on the date and time listed on the NTA.

However, CBP is, frequently, not following through on filing the NTA with the appropriate immigration court, meaning the immigration court does not have the document that actually initiates the deportation proceedings against the noncitizen.

Thus, the noncitizen shows up to the court on the date and time in the NTA only to discover that the immigration court has no idea who she is. The court then “dismisses” the case because the case never actually existed within the court system.

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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: In this Guest Essay, our anonymous friend, Prof. Erasmus, explains his rather unusual thoughts about U.S. asylum law, which — of course — we do not endorse or even pretend to understand. If you like Prof. Erasmus’s work, stay tuned, because he intends to make this a regular feature. We’ll see if he intends to pay our advertising bill.

Guess who’s back, back again/Razzy’s back, tell a friend

I, Professor Erasmus, am here to further educate you on how American immigration law works. Remember the rule: We do not judge law by what it purports to do, but by what it actually does.

Today, I would like to remind you about the Old Way that the United States used to do immigration — what I will call the Ellis Island system. The rules at Ellis Island, circa 1910, were simple and clear:

  • No passport or visa was required. Immigration officers checked your name against the ship’s manifest to determine whether your identity could be verified. Fraud was frequent.
  • A government doctor would examine you to determine physical and mental fitness. About ten percent of people were held for further examination — heart trouble, mental instability and inability to do physical labor were all reasons for detention. (Think little Vito Andolini from The Godfather Part II.)
  • Brief questioning from officials, aimed at determining whether you were a dangerous anarchist, led to a tiny fraction of migrants being detained and then deported.

98% of applicants for admission made it in. 98%!

Upon admission, immigrants received no paperwork of any kind — no summons demanding a court appearance, no green card, no work permit, no identification. Do you think that the Ellis Island system differs from our current system? It does not. If you think it does, you’re a fool, a lawyer, or quite possibly both.

In my next essay, I will explain to you how our current immigration system is, in fact, just like Ellis Island in every particular. Every border crossing station is a miniature Ellis Island. Lawyers, judges and bureaucrats pretend otherwise; let them pretend. Here, we tell the truth.

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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.

Loyal Statutes of Liberty reader(s) know that we at the Law Office of James Montana PLLC are not always pleased with how the various immigration agencies interpret the law.

For example, we recently talked about the bonkers way that U.S. Citizenship and Immigration Services (USCIS) dealt with certain immigrants who return to the United States after a brief trip abroad with a travel permit.

But we write with great news! USCIS has finally decided to reinterpret not only one, but TWO important pieces of the law, both in favor of our clients!

First, let’s start with the previously discussed travel permit issue. Under an administrative decision called Matter of Z-R-Z-C-, USCIS began to reject lawful entries using a travel permit for certain green card applicants who have Temporary Protected Status (TPS).

Many TPS beneficiaries originally entered the United States illegally to flee horrendous conditions in their home country. Thus, even after the TPS holder traveled with a permit and reentered the United States legally using a travel permit, USCIS said that the TPS holder was “reverted back” to their prior status at their original entry.

This meant that despite the more recent lawful entry, the TPS holder was still considered to have last entered the country unlawfully, which ruined their chances of applying for a green card.

But this position has now been totally reversed! USCIS announced that it has rescinded Matter of Z-R-Z-C-. Now, if a TPS holder travels and reenters with a valid travel permit, that person will be considered to have last entered the United States lawfully.

This is a huge win for TPS holders, many of whom have lived in the United States for at least 20 years. Many of them now have U.S. citizen family members or U.S. employers who wish to help them get green cards. We favor this interpretation. The law is now more reasonable (or, if you prefer, less bonkers). If the government ‘inspects’ you on entry, it will no longer claim that you entered without inspection, depending on whether or not you entered before Z-R-Z-C.

The second major update needs some prefatory legal explanation. For an immigrant to be eligible for a visa or a green card, the immigrant must be admissible to the United States. There are many reasons an immigrant may be inadmissible, or barred, from receiving a visa, green card, or entering the United States. The two bars at issue here are referred to as the three- and ten-year unlawful presence bars.

[Author’s note: This article and the new USCIS update do not apply to the third unlawful presence bar called the permanent bar. We may address that bar at a later date.]

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