Copland and Brenner

Table of Contents

1. Autumn Upon Us; Change in the Air?
2. Second Circuit Says No Jurisdiction Over Denial of Fraud Waiver
3. USCIS Eliminates I-765 Filing, EADs at Local Offices
4. In Brief: Recent Developments

1. Autumn Upon Us; Change in the Air?

   Ah, September. The air is cooler, the days shorter. And in our nation’s capital – with a new fiscal year commencing October 1 and elections for certain national offices set for November 7 - the rhetoric is heating up. To what end, only time will tell.

   History has shown that the need for appropriations bills to fund government activities for a new fiscal year, plus an election season, can combine to great effect – for better or worse - in the legislative arena. The result can be the motivation of elected representatives to do something, rather than nothing, about many things – but only if fear, and fear-mongering, do not hold them back. Unfortunately, fear in Washington, D.C. frequently translates into efforts by elected representatives to remain in office, rather than doing what makes sense for the country.

   At various points in our reports over the past months, we have referred to the elections this Fall and what, if any, effect they might have on immigration reform efforts. In this context, some might wonder why some senators (including such notables as Joseph Lieberman of Connecticut, Hillary Rodham Clinton of New York, Edward Kennedy of Massachusetts, William Frist of Tennesee and Trent Lott of Mississippi) are fully engaged in election year stumping, while so many others go quietly about their business? In contrast, why are all members of the House of Representatives on the campaign trail? The answer lies in Article I, Section 3 of the U.S. Constitution, which established a “class” structure for the U.S. Senate, so that one-third of senators is up for election every two years. By contrast, each member of the House of Representatives (who serve only two-year terms rather than the six served by senators) must stand for election every two years.

   Under the Constitution, then, this year senators in “Class I” are up for reelection. They were elected to office in the November 2000 election, and their terms run from the 107th Congress on January 3, 2001 to the end of the 109th Congress in January 2007. And, all 435 seats in the House of Representatives are up for election this November. In two years, we will endure the trifecta: elections for the full House as well as one-third (Class II) of our Senators, and the race for the presidency.

   This year, matters of rhetoric may be more complicated than usual because we face the five-year anniversary of the horrific terrorist attacks of September 11, 2001. Since then, there has been a sea change in a variety of contexts involving U.S. immigration laws: information technology has significantly advanced, the PATRIOT Act and the REAL ID Act have broken new ground, and activities to enforce immigration laws – both new and old – have been ramped up. The attacks morphed immigration issues into the national security arena, likely forever, but not always in a sensible and meaningful way.

   The comprehensive reform vs. enforcement-only positions are best expressed by their proponents. The web site for Senator Edward Kennedy (D-MA) states:

   "Border Security is addressed in the bill [Secure American and Orderly Immigration Act, which he co-sponsored with Senator John McCain (R-AZ)]. It establishes a National Border Security Strategy, based on 'smart' border technology, information sharing, and cooperation with our neighbors. A new temporary visa will be created to allow foreign workers to enter the U.S. The visa will be valid for 3 years, and can be renewed one time for a total of 6 years. Enforcement of current laws will be strengthened, improving fraud detection and allowing random audits of employers to ensure compliance with existing labor laws. Unnecessary obstacles preventing families from being together when immigrating to the U.S. are also removed. The bill will enable undocumented immigrants to come out of the shadows, submit to background checks, and register for legal status. During this time, they would have to continue working, play by the rules, and pay substantial fines and back taxes. The bill is not an amnesty, which implies that all is forgiven. It is not. Undocumented workers must pay fines and go to the back of the line before earning a chance for citizenship."

   In contrast, the web site for Senator Jon Kyl (R-AZ) says that:

   "Turning a blind eye to illegal immigration, or sanctioning such behavior, undermines the rule of law in our country. It mocks those who wait patiently, sometimes for years, to enter the U.S. through legal channels. It encourages more people to immigrate illegally with the expectation that they, too, might benefit from some future amnesty. Any reform of our nation's immigration laws should be careful to avoid amnesty by any name..

   "Like many Arizonans, I do not believe that foreign nationals should profit from having illegally entered the U.S. by converting their status to that of lawful permanent residents (which is the pathway to citizenship). If "amnesty" means anything, it means receiving an advantage for citizenship from illegal activity."

   Only in retrospect will we know whether this Fall season brought meaningful reform or, to coin a phrase, "a tale told by an idiot, full of sound and fury, signifying nothing."

2. Second Circuit Says No Jurisdiction Over Denial of Fraud Waiver

   In a case of first impression, the Second Circuit held that it has no jurisdiction to review the denial by an Immigration Judge of an application for waiver of visa fraud ( Zhang v. Gonzales , Docket No. 04-2603-ag). Generally stated, the applicable fraud statute, Section 212(2)(6)(C)(i) of the Immigration and Nationality Act, makes inadmissible to the U.S.A. any alien who committed fraud or made a material misrepresentation in seeking any U.S. immigration benefit. The relevant waiver provision, Section 212(i) of the INA, authorizes a waiver if a qualifying relative (a parent or spouse who is a lawful permanent resident or U.S. citizen) demonstrates he/she will suffer “extreme hardship” if the waiver is not granted.

   The waiver application in this case was initially denied by the Immigration Judge on October 1, 2002. The denial was appealed to the Board of Immigration Appeals, which affirmed that decision. In agreeing, the Second Circuit reasoned that:

   - the REAL ID Act required treatment of the case as a petition for review under 8 U.S.C. Section 1252
   - 8 U.S.C. Section 1252 provides that courts lack jurisdiction to review any judgment regarding the granting of relief under INA Section 212(i)
   - the Court had previously held that the term “judgment” refers to discretionary decisions
   - the Attorney General makes decisions involving hardship by discretionary factors in light of the facts and circumstances of a given case
   - it has previously held that hardship determinations in the cancellation of removal context are discretionary
   - 212(i) hardship determinations are made in the same manner under practically identical standards as those involving cancellation
   - the REAL ID Act stripped the courts of jurisdiction to review discretionary and factual determinations, allowing review only of constitutional claims or questions of law – none of which were raised by the petition on appeal

   Thus, the Court upheld the waiver denial on appeal, noting that the only other court to decide the issue (the Fourth Circuit) reached the same conclusion.

3. USCIS Eliminates I-765 Filing, EADs at Local Offices

   In a Memorandum dated August 18, 2006 and obtained by the American Immigration Lawyers Association (“AILA”) (Doc. No. 06090560), USCIS advised that it will no longer accept Form I-765 (application for employment authorization), filings for interim and non-interim employment authorization documents (“EADs”) at local offices, effective September 1. Not only will the local USCIS offices not accept Form I-765 for filing, they will also no longer issue locally produced EADs effective September 1.

   Generally, this means that USCIS will now issue only EADs bearing the form number I-766, which are generated at the Integrated Card Production System in Corbin, Kentucky. This accounts for about 88% of employment cards. According to the Memorandum, the goal is to totally eliminate production of Form I-688B, which comprises the remaining 12% of EADs, issued by local offices, by October 1.

   I-765 applications received at any local USCIS office from September 1 - September 30, 2006 will be forwarded to the appropriate Service Center or the Chicago Lockbox for processing. Applications received on or after October 1 will be returned and the applicant advised to file directly with the appropriate Service office.

   Certain, very limited, exceptions will apply to aliens paroled into the U.S.A. in the public interest or for emergency reasons, and certain Mariel Cubans, who seek to file Form I-765 without fee . These exceptions are in place largely to assist law enforcement agencies to obtain EADs for witnesses and informants. In such cases, Form I-765 may be accepted for filing at a local office, although actual card production will occur at a different, designated Service office which will produce a Form I-766.

   In the Memorandum, USCIS acknowledges its obligation under 8 CFR Section 274a.13(d) to adjudicate an I-765 within 90 days from the date of receipt. Previously, USCIS would issue an “interim” EAD at a local office if a Service Center or card production facility failed to fulfill that obligation. According to the Memorandum, all four Service Centers and the National Benefits Center “have already begun conducting daily sweeps to identify any Form I-765 pending on Day 60. Once identified, it will be imperative for the NBC or Service Centers to adjudicate these pending Forms I-765. Adjudication of Form I-765 must occur prior to Day 70 in order for the EAD to be received by the applicant prior to Day 90.”

   Of course, a denial or request for evidence may be issued in appropriate cases, either of which would make the 90-day adjudication time frame moot. However, in an apparent sign that USCIS is taking its own policy seriously, the Memorandum states that “Since the affected alien will be in the field office at the time the inquiry is made, the NBC and Service Centers will attempt to respond to any inquiry within 30 minutes of receipt. Inquiries made to a Service Center or the NBC after their normal business hours should be sent to the email addresses listed below [redacted], with the response from the Service Centers or NBC provided to the local office by 10:00 the next business day.”

4. In Brief: Recent Developments

   I-140 Premium Processing: Effective August 28, USCIS began accepting premium processing requests for Form I-140 (employment-based immigrant visa petition) for the third employment-based preference categories for professionals and skilled workers . However, the agency advises that a petitioner may not request premium processing of any I-140 that involves (a) a second filing of a Form I-140 while an initial I-140 remains pending; (b) labor certification substitution requests, or (c) cases filed without an original labor certification from the Department of Labor (involving a duplicate certification request). It is a bit of a mystery as to why the agency chose the third preference category for premium processing, since only Schedule A workers in that category have immigrant visas currently available. To those who nonetheless elect to pay the additional $1,000 for processing, they must be sure to use the new Form I-907, with a revision date of August 28, 2006; otherwise, the request will be rejected.

   “Catch and Release” becomes “Catch and Return”: On August 23, the Secretary of the Department of Homeland Security advised it has stopped the practice of releasing “other than Mexicans” on their own recognizance after being apprehended in the southwest U.S.A. The change is intended to eliminate the failure of such aliens to appear at scheduled hearings before the Immigration Courts, who then might remain unlawfully in the U.S.A.