Written By Meghan M. Phillips, Esq.[1]

            On January 5, 2023, the Biden-Harris administration announced a new parole process for nationals of Cuba, Haiti, Nicaragua, and Venezuela.[2] In the immigration context, parole has nothing to do with criminality, but means that a person who may not otherwise be eligible for admission to the United States is allowed to enter the United States.[3] Confusingly, parole historically has been treated differently than a lawful admission, and is usually intended to be temporary and is often for humanitarian purposes.[4] Choice of terminology aside, what this program means is that nationals from these four countries are allowed to temporarily enter the United States.[5]  Originally tested on Venezuelan nationals, the administration announced that, under this new program, each month the Department of Homeland Security (DHS) will allow up to 30,000 individuals from these four countries to enter the United States on parole for a period of two years and that these individuals can also receive work authorization documents if they have an eligible sponsor and pass vetting and background checks.[6] 

            What makes the program a double-edged sword is that nationals of the four countries who do not follow this parole process are ineligible for parole into the United States and subject to expulsion either to their country of origin or Mexico, which has agreed to accept returns of 30,000 individuals from the four countries.[7] Additionally, the program requires that applicants arrive via air, have a passport, and have a financial supporter or sponsor that is a U.S. citizen, lawful permanent resident (green card holder) or have some other lawful immigration status such as Temporary Protected Status (TPS), refugee status, asylum, parole, deferred action (such as DACA), or nonimmigrant lawful status (e.g. U or T visa).[8] This means that for nationals who cannot afford a plane ticket or lack a sponsor with lawful status and enough financial means to serve as a sponsor will be unable to successfully use the program and could be expelled to the dangerous conditions. It also means that those who are truly fleeing for their lives and safety or fear harm from their own governments would have to wait in unsafe conditions for their applications to be processed or apply to the very government they fear to ensure they have a passport to allow their international travel.

            Finally, the program also excludes those who have been ordered removed from the United States in the past five years, those who have irregularly crossed the Mexican or Panamanian border after the parole program was announced (for Venezuelans, after October 19, 2022; for Cubans, Haitians, and Nicaraguans, after January 9, 2023), and unaccompanied children, which are children under the age of 18 who are traveling without a parent or guardian.[9] Again, this severely excludes many groups of people who might be in serious fear for their lives and cannot wait to flee.

            This also means that the U.S. could be in violation of its international legal obligations such as the principle of non-refoulement, which guarantees that “no one should be returned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm…irrespective of migration status.”[10]  Furthermore, seeking asylum is a human right also protected under international and U.S. law under the 1948 Universal Declaration of Human Rights, the Refugee Convention of 1951 and its 1967 Protocol, and the U.S. Refugee Act of 1980.[11]

            There are two other problems caused by this program. First, the program is ripe for causing prospective beneficiaries to become victims of abuse, violence, exploitation, and immigration scams.[12] The prospective beneficiaries may believe they are obligated to “repay, reimburse, work for, serve, marry, or otherwise compensate their supporter in exchange for filing Form I-134A on their behalf or for providing financial support while they are in the United States,” which could lead them to become victims of domestic violence, forced marriage, or human trafficking.[13] Other common scams include people impersonating government officials, misleading officers of support, scam websites, requests for payments by phone or email, and notaries (Notarios Públicos) and other individuals who are not lawyers who are not authorized or licensed to provide legal immigration services or advice.[14] Second, the program is only intended to be for a temporary period of two years. After that two-year period, if the Cuban, Haitian, Nicaraguan, or Venezuelan national has not applied for a new immigration status, they would remain in the United States without any work authorization or lawful status. The effect of this could be hundreds of thousands of people in the United States in limbo and at risk for deportation.  

            The Biden administration has pointed out that so far, the program has caused U.S. arrests of Cuban, Haitian, Nicaraguan, or Venezuelan nationals to plummet from an average of 3,367 per week to just 115, which represents a 97 percent reduction.[15] It argues that this shows that the program helps deal with the acute security challenges at the southern border while expanding and expediting “legal pathways for orderly migration.”[16] However, the program has been criticized both on the left by Democratic lawmakers and immigration advocates who says that this violates Biden’s pledge to reverse hardline border policies implemented by the previous Republican administration and on the right by a coalition of 20 U.S. states with Republican attorneys general who have filed a lawsuit against the program, saying it violates federal immigration law.[17] Therefore, it remains to be seen if the program will last and its long term effects.

            If you or someone you know is a Cuban, Haitian, Nicaraguan, or Venezuelan national and you or they would like advice on the new parole process program or other immigration options, please do your research and pick a licensed and experienced immigration lawyer or representative for your case.

            At VFN Immigrants First, we have licensed immigration attorneys who are admitted to practice both by state bars and EOIR (immigration court). We would be happy to help you find the best legal strategy to meet your immigration goals and help you determine if the new program could help you or someone you know now, or in the future. 

Please give us a call at 703-335-2009, visit our website, www.immigrantsfirst.com, email: mphillips@vfnlaw.com, or stop by our office at 9200 Church Street, Suite 203, in Manassas, Virginia, to learn more or make an appointment for a consultation.

[1] Meghan M. Phillips, Esq., is a senior associate immigration attorney with the Immigration Law Practice Group, Immigrants First, at Vanderpool, Frostick & Nishanian, PC. She primarily handles family and humanitarian immigration, Special Immigrant Juvenile custody, and removal defense and appeal cases. She is a member of the Virginia State Bar and admitted to practice before the U.S. immigration courts (EOIR), the Eastern District of Virginia Court, and the Fourth Circuit Court of Appeals.

[2] Fact Sheet: Biden-Harris Administration Announces New Border Enforcement Actions, The White House, January 5, 2023, available at: https://www.whitehouse.gov/briefing-room/statements-releases/2023/01/05/fact-sheet-biden-harris-administration-announces-new-border-enforcement-actions/.

[3] Humanitarian or Significant Public Benefit Parole for Individuals Outside the United States, United States Immigration and Citizenship Services (USCIS), September 9, 2022, available at: https://www.uscis.gov/humanitarian/humanitarianpublicbenefitparoleindividualsoutsideUS#:~:text=What%20Is%20Parole%3F,States%20for%20a%20temporary%20period.

[4] Id.

[5] Fact Sheet: Biden-Harris Administration Announces New Border Enforcement Actions, The White House, January 5, 2023, available at: https://www.whitehouse.gov/briefing-room/statements-releases/2023/01/05/fact-sheet-biden-harris-administration-announces-new-border-enforcement-actions/.

[6] Id.

[7] Id.

[8] Processes for Cubans, Haitians, Nicaraguans, and Venezuelans, United States Immigration and Citizenship Services (USCIS), January 25, 2023, available at: https://www.uscis.gov/CHNV.

[9] Id.

[10] The Principle of Non-Refoulement Under International Human Rights Law, United Nations Human Rights Office of the High Commissioner (OHCHR), available at: https://www.ohchr.org/sites/default/files/Documents/Issues/Migration/GlobalCompactMigration/ThePrincipleNon-RefoulementUnderInternationalHumanRightsLaw.pdf.

[11] Jonathan Blazer and Katie Hoeppner, Five Things to Know About the Right to Seek Asylum, American Civil Liberties Union (ACLU), September 29, 2022, available at: https://www.aclu.org/news/immigrants-rights/five-things-to-know-about-the-right-to-seek-asylum.

[12] Processes for Cubans, Haitians, Nicaraguans, and Venezuelans, United States Immigration and Citizenship Services (USCIS), January 25, 2023, available at: https://www.uscis.gov/CHNV.

[13] Id.

[14] Id.

[15] Ted Hesson, U.S. arrests of Cuban, Haitian, Nicaraguan and Venezuelan migrants plummet, Reuters, January 25, 2023, available at: https://www.reuters.com/world/us/us-arrests-cuban-haitian-nicaraguan-venezuelan-migrants-plummet-under-new-2023-01-25/.

[16] Fact Sheet: Biden-Harris Administration Announces New Border Enforcement Actions, The White House, January 5, 2023, available at: https://www.whitehouse.gov/briefing-room/statements-releases/2023/01/05/fact-sheet-biden-harris-administration-announces-new-border-enforcement-actions/.

[17] Ted Hesson, U.S. arrests of Cuban, Haitian, Nicaraguan and Venezuelan migrants plummet, Reuters, January 25, 2023, available at: https://www.reuters.com/world/us/us-arrests-cuban-haitian-nicaraguan-venezuelan-migrants-plummet-under-new-2023-01-25/.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

Written By Meghan M. Phillips, Esq.[1]

Currently under U.S. immigration law, if a noncitizen has entered the United States without inspection (EWI) or unlawfully, they are unable to adjust their status to that of a lawful permanent resident (green card holder) unless they qualify for adjustment under section 245(i) of the Immigration and Nationality Act (INA).  This section, “enables certain individuals who are present in the United States who would not normally qualify to apply for adjustment of status in the United States to obtain lawful permanent residence (get a Green Card) regardless of: (1) the manner they entered the United States; (2) Working in the United States without authorization; or (3) Failing to continuously maintain lawful status since entry.”[1] However, to qualify, they must prove they:

1. Are the beneficiary of a qualified immigrant petition (Form I-130 or I-140) or application for labor certification (Form ETA-750) filed on or before April 30, 2001;
2. Were physically present in the United States on Dec. 21, 2000, if they are the principal beneficiary and the petition was filed between Jan. 15, 1998, and April 30, 2001;
3. Are currently the beneficiary of a qualifying immigrant petition (either the original Form I-130 or I-140 through which they are grandfathered or through a subsequently filed immigrant petition) or an application for labor certification;
4. Are physically present in the United States at the time they file Form I-485 and Supplement A;
5. Have a visa immediately available to them;
6. Are admissible to the United States or eligible for a waiver of inadmissibility or other form of relief; and
7. Warrant the favorable exercise of discretion.[2]

They must also pay a fee of 1000 dollars with this application.[3]

            As one can see, under the first and second requirements, adjustment under this provision is limited by two sunset dates; that is, a person has to have had an immigrant petition or labor certification that was filed on their behalf before April 30, 2001, and they must have also been physically present in the United States on December 21, 2000.  In other words, adjustment under this provision is extremely limited and only those who have “grandfathered” status qualify.

            So what can those who have entered without inspection or who have failed to maintain lawful presence in the United States do to become lawful permanent residents if they do not meet the 245(i) sunset date requirements? Currently, even immediate relatives of a U.S. citizen such as a spouse, son, or daughter cannot adjust status in the United States. Rather, they must file for a waiver to forgive their unlawful entry and presence and consular process, which means they must exit the United States and have an interview at a U.S. consulate in another country.

Current processing times and fees for a provisional unlawful presence waiver (one filed before leaving the United States for a consular interview) are 34 months and 715 dollars, while other waivers for grounds of inadmissibility (one that is filed if one has already left the United States, thus activating the unlawful presence bar to return) are 27.5 months and 930 dollars.[4] Additionally, consular processing also has several fees and can take several months or even years, depending on the consulate and security checks required. In short, there is nothing short or inexpensive about this process. Combine this with the uncertainty of having a relative or key employee stuck outside the country for an indefinite amount of time with no guarantee that the visa will be approved, this creates untold stress not only on the applicant but also American families and businesses.

The United States is experiencing a labor shortage, which is partially exacerbated by low immigration levels, and which is resulting in several negative effects including inflation, reduced output and lost opportunity costs for companies, adverse impacts on supply chains, and increased strain on key sectors like agriculture, the food industry, science, technology, engineering, mathematics, healthcare, transportation, ports, and warehouses.[5] The State Department, the United States Citizenship and Immigration Services (USCIS) under the Department of Homeland Security, and immigration courts under the Department of Justice, are experiencing enormous backlogs.[6] In 2020, USCIS also experience a severe budget shortfall, causing the agency to ask Congress to provide it 1.2 billion to avoid furloughing 15,000 of its 18,700 employees; it also proposed enormous fee hikes for applications such as naturalization. [7]  U.S. immigration laws need to change to reverse these trends, but immigration legislation has largely stalled in Congress and experts do not predict any significant changes to immigration policy after the recent November 2022 midterm elections.[1]

            Therefore, to address these issues, I propose that one major immigration law or policy change should be to re-introduce 245(i) adjustment without the sunset dates, but with the caveat that the fee for such an application should substantially increase from its current 1,000 dollar level to be perhaps as high as 5,000 dollars. Families and business-owners desperate to have greater certainty and avoid separation from their immigrant family members or employees would likely be willing to pay an increased fee to avoid the long wait times and the need for the immigrant to consular process outside the United States. 

The higher fee would serve to ameliorate the budget shortfalls and increase the immigration system’s financial ability to be better staffed so as to deal with its enormous backlogs. It would also serve as a greater penalty to waive or pardon the immigrant’s unlawful presence or entry, commensurate with the U.S.’s desire to disincentivize unlawful entry and presence, unlike the current 3 and 10-year bars to re-entry, which counterintuitively caused a significant increase in the undocumented population.[2] In fact, the National Immigration Forum estimated in 2021 that if Congress were to cancel or extend the 245(i) deadline, this would allow 2.3 million unauthorized immigrants to become eligible for adjustment of status.[3] This would help millions of ensure their family unity, ensure migrants have an incentive to become documented and comply with immigration law, and help businesses hire the labor and candidates they desperately want and need, all while improving and funding our backlogged and overloaded immigration system. Therefore, I urge politicians and policy-makers to consider reinstating or instituting a new 245(i) adjustment program.

At VFN Immigrants First, we have three licensed immigration attorneys who are admitted to practice both by state bars and EOIR. We would be happy to help you find the best legal strategy to meet your immigration goals and help you determine if the recession of Matter of Z-R-Z-C-, will allow you to travel with advance permission and if you are eligible to adjust your status to that of a lawful permanent resident now, or in the future.  

Please give us a call at 703-335-2009, visit our website, www.immigrantsfirst.com, email: mphillips@vfnlaw.com, or stop by our office at 9200 Church Street, Suite 203, in Manassas, Virginia, to learn more or make an appointment for a consultation.

[1] Meghan M. Phillips, Esq., is an associate immigration lawyer with the Immigration Law Practice Group, Immigrants First, at Vanderpool, Frostick & Nishanian, PC. She primarily handles family and humanitarian immigration, Special Immigrant Juvenile custody, and removal defense and appeal cases. She is a member of the Virginia State Bar and admitted to practice before the U.S. immigration courts (EOIR), the Eastern District of Virginia Court, and the Fourth Circuit Court of Appeals.

[2] United States Citizenship and Immigration Services (USCIS) Webpage, Green Card through INA 245(i) Adjustment, November 29, 2021, available at: https://www.uscis.gov/green-card/green-card-eligibility/green-card-through-ina-245i-adjustment.

[3] Id.; see also, INA § 245(i).

[4] Id.

[5] United States Citizenship and Immigration Services (USCIS) Webpage, Check Case Processing Times, available at: https://egov.uscis.gov/processing-times/; United States Citizenship and Immigration Services (USCIS) Webpage, I-601A, Application for Provisional Unlawful Presence Waiver, May 9, 2022, available at: https://www.uscis.gov/i-601a; United States Citizenship and Immigration Services (USCIS) Webpage, I-601, Application Waiver of Grounds of Inadmissibility, November 22, 2022, available at: https://www.uscis.gov/i-601.

[6] Arturo Casellanos-Canales, National Immigration Forum, America’s Labor Shortage: How Low Immigration Levels Accentuated the Problem and How Immigration Can Fix It, February 28, 2022, available at: https://immigrationforum.org/article/americas-labor-shortage-how-low-immigration-levels-accentuated-the-problem-and-how-immigration-can-fix-it/.

[7] Aline Barros, VOA, Analysts Don’t Expect Significant Changes in Immigration Policy After the Midterms, November 3, 2022, available at: https://www.voanews.com/a/analysts-don-t-expect-significant-changes-in-immigration-policy-after-the-midterms/6819069.html.

[8] Sarah Piece and Doris Meissner, Migration Policy Institute, USCIS Budget Implosion Owes to Far More than the Pandemic, June 2020, available at: https://www.migrationpolicy.org/news/uscis-severe-budget-shortfall.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

Written By Meghan M. Phillips, Esq.[1]

On July 1, 2022, the U.S. Citizenship and Immigration Service (USCIS) released a memorandum that provides welcome news for Temporary Protective Status (TPS) holders: USCIS has announced its rescission of the decision of Matter of Z-R-Z-C- as an adopted decision.[2]  What is this decision, and why is its recession such good news for those with TPS? To understand this, first, one must understand the TPS program and what the Matter of Z-R-Z-C- decision meant for TPS holders.

What is TPS, and Who is Eligible?

            TPS, as the name suggests, provides a temporary legal status for noncitizens in the United States from certain designated countries affected by armed conflict, natural disasters, or other extraordinary conditions.[3] As of August 1, 2022, the following countries have current TPS designations: Afghanistan, Burma (Myanmar), Cameroon, El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, Ukraine, Venezuela, and Yemen.[4] TPS allows TPS holders to live and work in the United States for the duration of the designation of their country for TPS and to avoid immigration detention and deportation.[5] The duration of a designation of a country is usually between 6 or 18 months but could be extended for many years.[6]  

            To be eligible for TPS, a person must meet 4 requirements and not have any of the 6 factors that disqualify a person for TPS. The 4 requirements are: (1) Nationality – you must be a national of a country designated for TPS or a person without the nationality but habitually resided in the designated country; (2) Filing Date – you must file your TPS application during the open initial registration or re-registration period for your country of nationality, or meet the requirements for late initial filing during any extension of the TPS designation (3) Continuous U.S. Physical presence – you must have been continuously physically present in the United States since the date specified for your country with the exception for brief, casual and innocent departures from the United States; and (4) Continuous U.S. Residence – you have continuously maintained a residence in the U.S. since the date specified for your country, again, with the exception for brief, casual, and innocent departures from the United States.[7]

The 6 factors that can disqualify a person from TPS are: (1) felony convictions or two or more misdemeanor convictions in the United States; (2) inadmissibility under U.S. immigration laws, including for non-waivable and security-related grounds; (3) being subject to any of the mandatory bars to asylum, such as participating in the persecution of another individual or engaging in or inciting terrorist activity; (4) failing to meet the continuous physical presence and continuous residence in the United States requirements; (5) failing to meet initial or late initial TPS registration requirements; and (6) failing to re-register for TPS without good cause.[8]

How did Matter of Z-R-Z-C- Affect TPS Holders?

TPS does not provide its beneficiaries with a path to lawful permanent residence (also sometimes called having a green card) or citizenship because, as the name suggests, the status is only intended to be temporary.[9] However, a TPS holder who later becomes eligible for permanent residency, for example, through the petition of a U.S. citizen or legal permanent resident (LPR) relative and who is otherwise eligible for adjustment of status, can apply to become an LPR.[10] A person who entered the United States without inspection is usually not eligible to apply to become an LPR.[11] However, TPS holders who have traveled with prior authorization upon returning to the United States have been inspected and paroled into the United States. Before Matter of Z-R-Z-C- was adopted as a precedential decision by USCIS, TPS holders who had traveled with advanced parole, even if they had originally entered the United States without inspection, were considered by USCIS to have met the requirement to be admitted and inspected.  In other words, TPS holders who had traveled with advanced permission “cured” their original unlawful entry and were eligible to adjust their status if they otherwise met all of the other requirements. 

Matter of Z-R-Z-C-, which was adopted on August 20, 2020, marked USCIS’s departure from this position and held that being “inspected and admitted” after TPS-authorized travel does not constitute being inspected and admitted for purposes of adjustment of status under INA 245(a).[12] This decision essentially declared that TPS beneficiaries are admitted in the “same immigration status the alien had at the time of departure.”[13] As this was such a significant policy change, USCIS decided it would grandfather those TPS holders who had traveled and returned on advanced parole prior to the decision date, August 20, 2020.[14] This meant that “newer” TPS holders, such as those from the recently designated countries of Afghanistan and Ukraine or those who had never before traveled with advance parole, could no longer “cure” their original entry without inspection.

What does the Recission of Matter of Z-R-Z-C- Mean for those with TPS Going Forward?

  On July 1, 2022, USCIS decided to rescind its adoption of Matter of Z-R-Z-C- as a precedent decision.[15] Going forward, this means that TPS holders can continue to apply for advanced travel permission to leave and return to the United States. However, now that Matter of Z-R-Z-C- has been rescinded, they are not going to return to the United States in the same status that they left.  Instead, traveling with advance permission and then re-entering after being inspected and admitted by U.S. immigration officials will satisfy the requirement of being lawfully inspected and admitted needed for an adjustment of status application. This is welcome news for those TPS holders who had not traveled with authorization prior to August 20, 2020, and who originally entered without inspection because it means they are now able to “cure” their original unlawful entries.

However, the recession also may adversely affect those who already have a removal order.[16] USCIS also cautions those TPS holders who have traveled with advanced permission that USCIS might not have jurisdiction over their applications for adjustment of status if that person has been in removal proceedings (has had an immigration court case).[17] For those in this situation, these applicants will have to file their adjustment of status application with the immigration court or terminate their removal proceedings so they can file their applications with USCIS.[18] These legal determinations are highly technical; therefore, please seek legal advice before traveling to avoid any inadmissibility issues or before filing your application for adjustment of status. Licensed legal counsel can help you check your immigration records and research the best legal strategy for your case. 

Conclusion

The TPS program is an important benefit for those in the United States from countries that have experienced terrible armed conflict and natural disasters but proving your eligibility and ensuring that you meet USCS’s precise deadlines is not easy on your own, especially if USCIS requests additional information or denies your application. Having an attorney help you ensure you meet the requirements and all deadlines, as well as help you navigate through the TPS travel authorization application process, can be extremely helpful. Additionally, determining whether you have a prior removal order, are in removal proceedings, or whether traveling could risk you ineligible for legal permanent residency are important legal determinations for which you should seek legal advice. Before seeking legal help, however, please do your research and pick a licensed and experienced immigration lawyer or representative for your case.

At VFN Immigrants First, we have four licensed immigration attorneys who are admitted to practice both by state bars and EOIR. We would be happy to help you find the best legal strategy to meet your immigration goals and help you determine if the recession of Matter of Z-R-Z-C-, will allow you to travel with advance permission and if you are eligible to adjust your status to that of a lawful permanent resident now, or in the future.  

Please give us a call at 703-335-2009, visit our website, www.immigrantsfirst.com, email: mphillips@vfnlaw.com, or stop by our office at 9200 Church Street, Suite 203, in Manassas, Virginia, to learn more or make an appointment for a consultation.

[1] Meghan M. Phillips, Esq., is an associate immigration lawyer with the Immigration Law Practice Group, Immigrants First, at Vanderpool, Frostick & Nishanian, PC. She primarily handles family and humanitarian immigration, Special Immigrant Juvenile custody, and removal defense and appeal cases. She is a member of the Virginia State Bar and has been admitted to practice before the U.S. immigration courts (EOIR), the Eastern District of Virginia Court, and the Fourth Circuit Court of Appeals.

[2] USCIS Policy Memorandum: Rescission of Matter of Z-R-Z-C- as an Adopted Decision; agency interpretation of authorized travel by TPS beneficiaries, PM-602-0188, July 1, 2022, available at: https://www.uscis.gov/sites/default/files/document/memos/PM-602-0188-RescissionofMatterofZ-R-Z-C-.pdf.

[3] See USCIS Website, Temporary Protected Status, available at: https://www.uscis.gov/humanitarian/temporary-protected-status.

[4] Id.

[5] Id.

[6] American Immigration Council, Temporary Protected Status: An Overview, June 29, 2022, available at: https://www.americanimmigrationcouncil.org/research/temporary-protected-status-overview#:~:text=A%20TPS%20designation%20can%20be,conditions%20in%20the%20foreign%20country.

[7] See USCIS Website, Temporary Protected Status, available at: https://www.uscis.gov/humanitarian/temporary-protected-status.

[8] Id.

[9] American Immigration Council, Temporary Protected Status: An Overview, June 29, 2022, available at: https://www.americanimmigrationcouncil.org/research/temporary-protected-status-overview#:~:text=A%20TPS%20designation%20can%20be,conditions%20in%20the%20foreign%20country.

[10] Id.

[11] See INA 245(a). 

[12] USCIS Policy Memorandum: Rescission of Matter of Z-R-Z-C- as an Adopted Decision; agency interpretation of authorized travel by TPS beneficiaries, PM-602-0188, July 1, 2022, available at: https://www.uscis.gov/sites/default/files/document/memos/PM-602-0188-RescissionofMatterofZ-R-Z-C-.pdf.

[13] Id.

[14] Id.

[15] Id.; see also, Duarte v. Mayorkas, 27 F.4th 1044 (5th Cir. 2022).

[16] USCIS Policy Memorandum: Rescission of Matter of Z-R-Z-C- as an Adopted Decision; agency interpretation of authorized travel by TPS beneficiaries, PM-602-0188, July 1, 2022, available at: https://www.uscis.gov/sites/default/files/document/memos/PM-602-0188-RescissionofMatterofZ-R-Z-C-.pdf.

[17] Id.

[18] Id.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

Written By Meghan M. Phillips, Esq.[1]

Introduction: A Case Caught in the Backlog for Ten Years

In March 2022, I litigated case before the immigration court on behalf of an incredibly deserving asylum-seeker who had been waiting ten years to receive a decision on her case. Her hearing would decide whether she would be granted asylum, withholding of removal, or protection under the Convention Against Torture, or if she would be order removed to the country of her citizenship.

Even though recent country condition reports show that our client would likely be harmed, tortured or executed if she returned to her country, asylum is an immigration benefit, which provides access to other governmental benefits and allows asylees to petition for permanent residency after one year. Therefore, a grant of asylum is not guaranteed by an asylum officer or immigration judge: an asylum-seeker must prove they qualify for asylum, and it is also a matter of those factfinders’ discretion.

Although the client and her family knew I believed in the strength of her case and that she truly merited the immigration judge’s positive exercise of discretion, I explained that the burden of proof was ours and we needed to prepare accordingly. So, prepare we did, and it truly was a team effort. Happily, our work, which also included a motion to advance the hearing, paid off, and our client was finally granted asylum.

However, not all cases caught in the U.S. immigration system’s backlogs will end with a positive outcome; in some cases, waiting in the backlog means that the case is prejudiced or that the applicant might no longer qualify for the immigration benefit they seek. For example, country conditions can dramatically improve, causing asylum seekers to lose their case by the time they have their hearing. Evidence could be lost, or a witness crucial to the case could pass away before testifying while waiting in the backlog. Worst of all, certain types of relief require clients or their qualifying relatives to be under a certain age. For instance, for cancellation of removal, if one’s qualifying relative is a U.S. citizen child, the child will no longer be a qualifying relative if he or she reaches the age of twenty-one. Thus, it is important to not only have one’s merits hearing before the qualifying relative ages out, but to also have time for the visa to issue, which currently can take about two to three years.

Even if one does eventually receive a positive outcome, awaiting a decision on an immigration case due to the backlogs can be incredibly stressful and lead to many negative side effects. It can mean families are separated for long periods of time, businesses can be waiting long periods for workers they desperately need, and qualified applicants might not be able to travel, access health care, or other federal benefits such as financial aid for education.

State of the Backlog

Sadly, although the ten-year duration of the above-mentioned asylum case might seem unusually long, the backlogs in the American immigration system mean that long wait-times are not the exception but the norm. The current estimated time for an asylum case is 58 months – in other words, about five years.[2]  For immigrant visa cases, the National Visa Center (NVC) reported that in May 2022, they scheduled 28,447 applicants for visa appointments, but 421,136 eligible visa applicants are still pending the scheduling of their interviews.[3]  As of February 2022, U.S. Citizenship and Immigration Services (USCIS), was reviewing more than 9.5 million pending applications.[4] Finally, the immigration courts have a massive backlog of 1.6 million cases.[5]

Causes of the American Immigration Backlog

These estimates are also sadly unlikely to improve: a number of factors mean that the backlogs are only going to grow.  One of the main reasons for the backlog is the COVID-19 pandemic, which caused shutdowns of embassies, consulates, and immigration offices. However, fiscal issues and a governmental hiring freeze also contributed to backlogs with USCIS.[6]

Ricard Zuniga, the Biden administration’s special envoy for the Northern Triangle region recently predicted that the U.S. is likely to see an increase in asylum requests and immigration from Central America because three countries’ democracies are facing grave difficulties.[7] In Guatemala, an anti-corruption judge went into exile due threats against her life.[8] El Salvador is experiencing a spike of gang-related homicides, causing the government to make mass arrests.[9] Finally, the former president of Honduras, Juan Orlando Hernandez, has been extradited to the United States on drug trafficking charges.[10] Additionally, asylum requests from Ukrainians at the Mexican border are growing, due to the ongoing war.[11]

Strategies to Navigate the Backlog

            So, what can be done to help you, your family, or your business navigate these immigration backlogs so as to achieve your immigration goals? My most important tip is to avoid scammers or fraud notarios and find experienced and licensed legal counsel.[12] Although legal fees have a cost, doing your applications yourself or entrusting your case to an unlicensed person can have terrible consequences; not only could it cause your case to take longer, but you might also lose eligibility for immigration benefits entirely.

One reason your case might take longer is because what you file and where you file for your case matters. Knowing all the evidence needed to process your application and the proper filing address and fees can help you ensure that your application is not rejected and that you avoid Requests for Evidence (RFEs), which can make processing of your application take even longer.

Additionally, once you have retained legal counsel to help ensure your immigration application is properly filed, you can also ask him or her if any of these strategies might be right for you:

1. Prosecutorial Discretion: Lawyers with the Department of Homeland Security (DHS), who serve as prosecutors in immigration court have been directed to help clear low-priority immigration cases from the immigration court backlog by exercising their discretion in a variety of forms, including motioning to dismiss or administratively close removal proceedings, joining motions to reopen a deportation order, or not opposing immigration relief.[13]  An experienced immigration attorney can help you determine if you might qualify for this, whether such a request to DHS is in your best interest, and help you file a request for prosecutorial discretion with the required evidence with DHS.

2. Motion to Advance: You might be able to file a motion to advance your court date with the immigration court. For example, in the previously discussed asylum case, our firm filed a motion to advance our client’s immigration court hearing date. This motion was granted and allowed our client to finally have her individual merits hearing on her asylum case.

3. Requesting Premium Processing: For certain employment visa categories, you might be able to file a request for premium processing with an additional fee to request faster processing of your case.[14] However, knowing whether your case qualifies, and making sure you comply with all requirements can be tricky without an attorney who can walk you through each step of the process.

4. Expedite Request: In some cases, you might also be able to request that USCIS or NVC expedite your interview. For example, if you can prove that: delay to your case could cause severe financial loss to a company or person; there is an emergency or urgent humanitarian reason to expedite your case; a nonprofit organization has an urgent need to expedite your case based on your specific role within the nonprofit in furthering cultural or social interests; it is in U.S. government interests to expedite your case; or there is a been clear USCIS error in your case.[15]  

5. Case Outside Normal Processing Times Inquiry: After checking the processing times for your application to verify that your case it outside normal processing times, you may be able to submit an inquiry, asking USCIS to explain the delay or to receive an estimated time frame. An attorney can help you check your case processing time and submit such an inquiry.   

6. Assistance Contacting a Member of Congress or Senator: Sometimes, a lawmaker such as your member of Congress or a senator can help make inquiries on your behalf or encourage the relevant immigration agency to expedite your case. An attorney can help you facilitate such a request.

7. Federal Litigation such as a Writ of Mandamus or suit under the APA: When an immigration case has been pending without a decision for an unreasonable amount of time, and no other course of action has led to a decision or timeline for a decision, a lawsuit against USCIS or other government agencies, might be your best option. This lawsuit, called a writ of mandamus or complaint under the Administrative Procedures Act (APA), will order the agency to make a decision on your case. However, this does not mean your case will be approved, only that a decision will be made. The lawsuit must be filed in the correct federal court with jurisdiction over your address or case, and you must show that you have exhausted all other avenues to receive a decision and that the time elapsed without a decision is unreasonable. An experienced immigration attorney can ensure that you file in the correct court and that you have tried all other strategies so as to avoid dismissal of your case. Furthermore, an experienced attorney can advise you on the risks of a negative decision and whether the time elapsed has indeed been unreasonable.

Conclusion

The U.S. immigration system backlog is extensive and navigating the backlog can be extremely difficult alone. Having an attorney help you choose the best strategy for your case can help immensely. However, above all, please do your research and pick a licensed and experienced immigration lawyer or representative for your case.

At VFN Immigrants First, we have four licensed immigration attorneys who are admitted to practice both by state bars and EOIR (the immigration court system) and who take their professional duties extremely seriously. We would be happy to help you find the best legal strategy to meet your immigration goals and help you navigate the immigration system’s enormous backlogs.

Please give us a call at 703-335-2009, visit our website, www.immigrantsfirst.com, or stop by our office at 9200 Church Street, Suite 203, in Manassas, Virginia to learn more or make an appointment for a consultation

[1] Meghan M. Phillips, Esq., is an associate immigration lawyer with the Immigration Law Practice Group, Immigrants First, at Vanderpool, Frostick & Nishanian, PC. She primarily handles family and humanitarian immigration, Special Immigrant Juvenile custody, and removal defense and appeal cases. She is a member of the Virginia State Bar and admitted to practice before the U.S. immigration courts (EOIR), the Eastern District of Virginia Court, and the Fourth Circuit Court of Appeals.

[2] Transactional Records Access Clearinghouse (TRAC) Immigration, Syracuse University, A Mounting Asylum Backlog and Growing Wait Times, Dec. 22, 2021, available at: https://trac.syr.edu/immigration/reports/672/.

[3] U.S. Department of State – Bureau of Consular Affairs, National Visa Center (NVC) Immigrant Visa Backlog Report, May 2022, available at: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/visas-backlog.html.

[4] Cmilo Montoy-Galvez, CBS News, U.S. immigration agency moves to cut 9.5 million-case backlog and speed up processing, Mar. 29, 2022, available at: https://www.cbsnews.com/news/immigration-uscis-case-backlog-processing-delays/.

[5] Rick Jervis, USA Today, COVID-19, surge in new cases create historic backlog jam in US immigration courts, report says, Jan. 19, 2022, available at: https://www.usatoday.com/story/news/nation/2022/01/19/covid-19-creates-huge-backlog-us-immigration-court/6581042001/.

[6] U.S. Citizenship and Immigration Services (USCIS), USCIS Backlog Reduction and Processing Times, May 18, 2022, available at: https://www.uscis.gov/outreach/upcoming-national-engagements/uscis-backlog-reduction-and-processing-times.

[7] Cincy Carcamo, Los Angeles Times, Biden official says U.S. will likely see an uptick in asylum requests and immigration, Apr. 2, 2022, available at: https://www.latimes.com/california/story/2022-04-02/la-me-ricardo-zuniga-on-biden-asylum-reversal-policy-central-america.

[8] Id.

[9] Id.

[10] Id.

[11] Sharif Paget and Karol Suarez, CNN, The number of Ukrainians seeking asylum at the US-Mexico border is growing by the day, Apr. 2, 2022, available at: https://www.cnn.com/2022/04/02/us/ukrainians-us-mexico-border/index.html.

[12] See my previous blog article, The Wrong Immigration Help Can Hurt, for more information about the perils of entrusting your case to an immigration scammer or notario and what you can do to avoid these scams and find licensed, legal help. 

[13] Memorandum from Kerry E. Doyle, Principal Legal Advisor, Guidance to OPLA Attorneys Regarding the Enforcement of Civil Immigration Laws and the Exercise of Prosecutorial Discretion, April 3, 2022 (taking effect April 25, 2022), available at: https://www.ice.gov/doclib/about/offices/opla/OPLA-immigration-enforcement_guidanceApr2022.pdf ; Memorandum from Alejandro N. Mayorkas, Secretary of Homeland Security, Guidelines for the Enforcement of Civil Immigration Law (Sept. 30, 2021), available at: https://www.ice.gov/doclib/news/guidelines-civilimmigrationlaw.pdf.

[14] USCIS, How Do I Request Premium Processing?, May 27, 2022, available at: https://www.uscis.gov/forms/all-forms/how-do-i-request-premium-processing.

[15] USCIS, How to Make an Expedite Request, Mar. 21, 2022, available at: https://www.uscis.gov/forms/filing-guidance/how-to-make-an-expedite-request.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer