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WARNING: The following are articles discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case. If you would like such advice from our office, call (415) 777-4445 (San Francisco); (916) 349-2900 (Sacramento) or (408) 993-9737 (San Jose).
A New Immigration Law Passed By Congress: The REAL ID Act
By Angela Bortel, Esq and Christopher Kerosky, Esq.
On May 11, 2005, President Bush signed the REAL ID Act into law. Pub. L. No. 109-13. This new law makes significant changes to existing immigration law, including the asylum process. The REAL ID Act has prompted a lot of questions and concerns from immigrants. Among other things, it will require that asylum cases be better documented than previously. Below we explain the main provisions of the REAL ID Act and the impact that those provisions could have on their immigration matters.
- Elimination of the Annual Limit on Adjustment of Status
Happily, the REAL ID Act eliminated the yearly cap on the number of asylees who can adjust status to legal permanent residents each year. Previously, asylees waited for years to receive their green cards because only 5,000 asylees could adjust status per year – until the REAL ID Act, this wait was estimated at 17 years for people now receiving asylum. The REAL ID Act lifted this limit, which will mean that will experience a significantly shorter wait to receive their green card. We should expect that persons with applications pending should be granted permanent residence in the next several years, depending upon processing delays.
- Changes to the Asylum Process
The REAL ID Act changed the burden of proof for an asylum applicant (“applicant”), standards for determining credibility of an asylum applicant and the requirements for supporting evidence. These changes affect all new asylum applications filed on or after May 11, 2005.
However, it is important to note what the REAL ID Act did not change. It did not eliminate the asylum process or change eligibility requirements to apply for asylum, except for adding new terrorism-based bars (See Part III of below). Therefore, it is still possible to apply for asylum, but it may be more challenging to prove your case. These new challenges make it even more critical to seek legal advice while gathering supporting documents and preparing yourself and your witnesses for your interview or Immigration Court hearing.
- Burden of proof for an asylum applicant
The old law required an asylum applicant to show that his or her race, religion, nationality, membership in a particular social group or political opinion was or would be a reason for their persecution. This meant that other motives, such as economic motives, could theoretically be the main reasons for an individual’s persecution.
The REAL ID Act now requires an applicant to show that race, religion, nationality, membership in a particular social group or political opinion was or will be at least one central reason for persecuting the applicant. This change means that it is even more important to demonstrate a clear connection between the persecution and the applicant’s race, religion, nationality, membership in a particular social group or political opinion.
An applicant can provide different types of information to help make this connection. For example, if a Jewish applicant is basing his case on multiple attacks he endured by skinheads, he could provide examples of the skinheads’ Anti-Semitic statements to show that they attacked him because he is Jewish. The Jewish applicant could also provide other evidence, such as the fact that he was attacked on Hitler’s birthday to show that the attack happened because he is Jewish and not simply as a random criminal act. Similarly, the Jewish applicant could present evidence that other Jewish friends or acquaintances that have experienced similar Anti-Semitic attacks. All of these examples help show that the applicant’s religion and ethnicity were “one central reason” that he was persecuted.
- Standards for determining credibility of an asylum applicant
Establishing an applicant’s credibility is one of the most important aspects of a successful asylum case. Credibility is a very difficult issue to appeal to higher courts, so it is important to prepare thoroughly at the beginning of the case.
The REAL ID Act establishes standards for determining an asylum applicant’s credibility. An asylum officer or immigration judge can judge an applicant’s demeanor, as well as the consistency, plausibility, specificity and responsiveness of an applicant’s testimony in making a credibility determination. When considering the consistency of an applicant’s statements, an immigration officer or judge can consider any previous statements the applicant made, whether those statements were under oath or not. Any inaccuracies or false statements by the applicant can form the basis for an adverse credibility finding, whether or not those statements related to the asylum claim. Lastly, a witness’s strange or inappropriate behavior can also form the basis of an adverse credibility finding.
- requirements for supporting evidence.
Supporting evidence like documents and expert testimony are extremely important to building a successful asylum case. The REAL ID Act provides that an Immigration Judge may require other evidence to support even credible testimony unless the applicant does not have the evidence and cannot reasonably obtain the evidence. Thus, under the REAL ID Act, it is extremely important to gather all supporting evidence or explain why you could not do so. In addition, it is important to keep all proof of how you received the document, such as the envelope a letter came in. The failure to do follow these steps could result in a denial of your case.
- Expansion of Terrorism-Based Grounds of Inadmissibility
The REAL ID Act vastly expanded the terrorism-based bars to receiving immigration benefits, including asylum. These expanded bars apply to all cases pending on May 11, 2005, as well as cases involving acts that happened before May 11, 2005.
These new bars apply to many groups and situations that may not necessarily be viewed as terrorist. First, the new bars apply not only to groups the U.S. government designates as terrorist groups, but to any organization believed to engage in terrorist activity. Second, the new bars apply to “anyone who endorses or espouses terrorist activity or who encourages others to do so.” This means that there does not need to be a link between the action endorsing terrorist activity and an actual terrorist act. Thus, it is extremely important to tell your lawyer about any and all groups that you have ever been affiliated with and your activities with those groups in order to avoid these bars to applying for asylum.
The REAL ID Act made real changes in the asylum process. While the elimination of the annual cap on the number of asylees able to adjust to green card status is welcome, the other provisions of the REAL ID Act raise the bar an applicant must hurdle to receive asylum. These changes make thorough preparation even more important than before. Thus, if you are considering applying for asylum or have already applied for asylum, you should seriously consider retaining an attorney to ensure that you present the best case possible.
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Bush Renews His Call for Temporary Worker Visa Program in Speech to Congress
On February 2, in his annual State of the Union speech to the Joint Session of Congress, President Bush renewed his call for a temporary worker visa program. As previously proposed the program would allow persons presently out of status to legalize their status and receive a visa for three years based upon a work sponsor. Combined with the faster labor certification procedure for getting permanent residence through work announced in December, this could possibly offer persons presently out of status in the U.S. a road to permanent residence.
In January of 2004, the Bush Administration announced his Administration's immigration reform proposal, which some have called an "amnesty" program – although he has specifically emphasized it is not an amnesty. Even though it was a very limited temporary worker visa program, the plan was not promoted by the Bush Administration because of the fact it was viewed as politically unpopular and last year was an election year. Now, with a new term in office and immigration reform is once again a topic of discussion in Congress and there is a likelihood that the Bush Administration will now re-introduce and promote its 2004 proposal.
The Bush proposal would have to be ultimately approved by Congress before it became law; but it appears to offer both a three-year temporary visa and the hope of permanent residence, contingent upon a job offer from an American employer. Immigrants hoping to qualify for this program may begin to secure potential employers willing to offer them a job offer in writing that might be used to qualify for this program if it becomes law.
The Administration's proposal includes an uncapped worker program in which immigrants can participate as long as they are working. Undocumented people as well as workers residing outside of the U.S. can apply for the program. American employers must make reasonable efforts to find U.S. workers.
Under this proposal, temporary workers in the program will be allowed to travel back and forth between their countries of origin and the U.S., and the annual number of green cards leading to citizenship will be increased. The proposal also includes incentives for people to return to their home countries.
If reintroduced, the proposal will meet with substantial opposition in Congress. Many members of Congress oppose any type of "amnesty" plan that helps undocumented aliens obtain status. It is difficult to predict whether President Bush will ultimately prevail on this specific proposal, but many in Congress have stated a desire to do something about the numbers of undocumented workers in the U.S. It is likely that some new immigration reform law will be passed and hopefully it will be one that improves the very difficult present laws for persons here without status or persons wishing to come to the U.S. |
The Federal Goverment Announces New Much Faster Procedure for Obtaining a Green Card Through Work Sponsors.
For the last several years, the procedure for obtaining permanent residence has been mired in enormous delays, taking anywhere from 3-5 years or more. This has made obtaining a green card through a work sponsor all but impossible.
Now, a new procedure has been announced which the federal government says will take less than one month to process. This has opened up the possibility that persons here temporarily could actually process an application for permanent residence while they wait here legally.
The employment-based permanent residence process is usually a three-step process. The first step is the Application for Foreign Labor Certification whereby the intending immigrant attempts to prove that there is a job available and which cannot be filed by a qualified American applicant. The U.S. Department of Labor has announced a major overhaul of this procedure.
The new labor certification program, known by the name "PERM," will require employers to demonstrate, through advertising and other forms of recruitment, that there are no qualified and available U.S. workers for a particular position. As before with the present “RIR” system, the advertising must be placed before the application is filed. The ads must include two Sunday newspaper advertisements and a job order with the state workforce agency.
The PERM application form will be filed electronically. As presently, there is no processing fee.
DOL has said processing times should be dramatically shorter under PERM than under current Labor Certification/RIR procedures. It is projecting the total processing time to be 45-60 days.
In the past, state workforce agencies (the Employment Development Department in California) administered this process. Under new procedures disclosed by the Department of Labor, these state workforce agencies no longer process Labor Certification applications; the state workforce agencies simply receive newly filed applications and then forward the applications to National Processing Centers for processing.
The new law takes effect March 28, 2005. However, since the recruitment period prior to filing an application lasts 30-180 days, persons may choose to begin the recruitment process immediately so as to be prepared for filing new applications when the law takes effect. |
The INS Becomes Part of the Bureau of Homeland Security.
In what may be a first step to reform the Immigration and Naturalization Service (INS), the government made radical changes in the structure of this important government agency earlier this year. These changes are now largely fully implemented and in place.
The agency has restructured itself into two divisions; one providing services and adjudications and the other enforcement and security. A single agency head - the Secretary of the Department of Homeland Security - will oversee both divisions. The Bush Administration has stated that it hopes the changes will help improve the efficiency and effectiveness of the agency, which remains to be seen.
A new Bureau of Immigration Enforcement oversees issues involving intelligence, investigations and illegal aliens. The new Bureau of Immigration Services will process applications for naturalization, asylum, work permits and residency green card renewals and deal with other immigrant benefits questions.
An Executive Commissioner who is responsible for all immigration benefit services heads the Bureau of Immigration Services. These services include processing applications for naturalization, asylum, adjustment of status, employment authorization, Green Card renewals/replacement and petitions for family and employment-based immigration.
An Executive Commissioner who is responsible for all enforcement activities heads the Bureau of Immigration Enforcement. The Bureau is critical to enhancing national security and is charged with combating illegal immigration activities at the border, ports of entry and in the interior of the United States.
The field service structure has six services areas that are relatively similar to one another in terms of physical size and client population. They are headed by Service Area Directors, who will focus on immigration service delivery.
The field enforcement structure consists of nine investigations offices headed by Special Agents in Charge and nine inspections port areas headed by Area Port Directors. The former 21 Border Patrol Sectors headed by Chief Patrol Agents continue to be part of the Enforcement Bureau. The sectors and field offices strategically focus resources on the areas of highest security concern and illegal immigration activity.
The former INS Regional, District and local field offices, which have increasingly struggled with the responsibilities of dual missions, have been replaced with area and local offices focused on either immigration services or law enforcement. The new structure creates direct chains of command that match expertise with the function being managed. It will also strengthen accountability through clearly defined roles and responsibilities for INS employees.
Two new offices have been established to address individual concerns of the public. The Ombudsman in the Bureau of Immigration Enforcement is supposed to provide the public with a means to communicate concerns and complaints about enforcement actions. The Customer Relations Office in the Bureau of Immigration Services is intended to provide the public with direct access to problem-solving assistance related to immigration benefits.
The Chief Information Officer (CIO) is responsible for marshalling the information systems to provide agency-wide data to the enforcement and services bureaus. The CIO, through the Information Coordinator, ensures that the Services Bureau maintains access to relevant enforcement data for adjudication, and that the Enforcement Bureau maintains access to data collected by the Services Bureau. The CIO is also responsible for developing the necessary information inter-links with other federal, state, local law enforcement and other relevant agencies.
As many immigrants have now realized, the new BCIS has now in place more advanced computer networks, which bring detailed information about any non-citizen within the country - provided that they came to the U.S. legally.
The new BCIS intends to strengthen its ties with foreign, federal, state and local law enforcement agencies. Combined with the enhanced computer system, this makes living here illegally more difficult than it ever was - precisely the goal of the federal government. |
Government Announces Comprehensive Program to Prevent Persons from Overstaying their Visa.
The Secretary of the Department of Homeland Security announced drastic new steps to control all persons coming into the U.S. and to prevent persons from staying out of visa status in the U.S.
Pursuant to the Homeland Security Act of 2002, the Department of Homeland Security was made responsible for establishing an automated entry/exit system. The Department of Homeland Security has made its new US-VISIT (United States Visitor and Immigrant Status Indicator Technology) program one of its top priorities. The US-VISIT, the Department's automated entry/exit system is intended to make it more difficult for those intending to engage in terrorism in the United States -- but also makes it much harder for those staying here after their visa expires.
In April, Secretary Ridge announced that the US-VISIT system will be capable of capturing and reading a biometric identifier at air and sea ports of entry before the end of 2003. It is anticipated that the system will be capable of scanning travel documents and taking fingerprints and pictures of foreign nationals, which then could be checked against databases to determine whether the individual should be detained.
The US-VISIT system will be implemented incrementally, but eventually will collect information on the arrival and departure of most foreign nationals such as: date; nationality; classification as an immigrant or non-immigrant; complete name; date of birth; citizenship; sex; passport number and country of issuance; country of residence; U.S. visa number, date and place of issuance (where applicable); alien registration number (where applicable); and complete address while in the United States. The information will be stored in databases maintained by Department of Homeland Security and the Department of State as part of an individual's travel record.
The new program will then, upon departure of the individual, verify his or her identity and capture their departure information. This tells the Department of Homeland Security if that person entered legally may have overstayed their visa. Currently, the government has no certain way to know when or even if visitors leave.
When announcing the program, Under-secretary Asa Hutchinson said: "By January 1st of next year, if a foreign visitor flies into Dulles or JFK or LAX or another international airport or arrives at a U.S. seaport- the visitor's travel documents will be scanned. Then, once a photo and fingerprint are taken, the person will then be checked against lists of those who should be denied entry for any reason - terrorist connections, criminal violations, or past visa violations. The information requested will include immigrant and citizenship status; nationality; the country of residence; and the person's address while in the United States. Incomplete information will no longer be good enough. In 99.9 percent of the cases, the visitor will simply be wished a good day and sent on their way. But with that small percentage of "hits," our country will be made much safer, and our immigration system will be given a foundation of integrity that has been lacking for too long." Congress has appropriated nearly $400 million for this year alone to establish it at US airports and seaports.
The information in the US-VISIT system will be available to inspectors at ports of entry, special agents in the Bureau of Immigration and Customs Enforcement (ICE), staff at immigration services offices, U.S. consular offices, and other law enforcement agencies. This information will be made available only to authorized officials for official duties including, identifying non-immigrants who may have overstayed their visas or otherwise violated the terms of their admission, assisting in the adjudication of immigration benefits, and assisting other federal, state, and local law enforcement agencies as necessary.
The government expects that when the US-VISIT system is fully implemented, it will provide the information necessary to account for nearly all temporary foreign visitors in the United States.
This will have dramatic consequences for those who try to overstay their visas in the U.S. It will make it even more important for persons here temporarily to maintain their status here by extending their visa by application to the Immigration Service. |
New Law Requires Change of Address Notice to INS
A new law proposed by INS would require anyone in the US on a temporary visa or with permanent residence to notify the INS of any address changes within 30 days. The INS would be able to punish persons who fail to notify the government of address changes by denying immigration benefits and even deporting them.
This proposed rule would amend the regulations of the Immigration and Naturalization Service by requiring every alien who is applying for immigration benefits to acknowledge having received notice that he or she is required to provide a valid current address to the Service, including any change of address within 10 days of the change. It will allow the INS to use the most recent address provided by the alien for all purposes, including the service of a Notice to Appear in deportation proceedings. If the alien has changed address and failed to provide the new address to the Service, that the alien will be held responsible for any communications sent to the most recent address provided by the alien.
All persons in deportation proceedings or with pending asylum claims would be advised to immediately notify the INS of any changes of address. Otherwise, the INS could serve notices on old addresses and such notice would fficient under this new law. Persons could be ordered deported in absentia at hearings, although those persons had no notice of the hearing because they had changed addresses.
Also, this new rule will require green card holders to vigilantly notify the INS of any changes or face future problems, such as a denial of citizenship potentially.
Finally, this proposed law will confront persons here illegally (i.e. without valid immigration status) with a choice: either tell the INS where they are or potentially expose themselves to future penalties such as bars to legalizing their status.
In such situations, where persons are illegally here, I recommend that, before one takes any specific action on any specific case, he or she should retain an immigration lawyer and discuss all the facts of the case. There may be relevant facts that would affect the outcome that should be discussed with a lawyer before any filing. Do not rely solely on this article to send any notice, to file any application or take any specific steps without first consulting an immigration lawyer. |
US VISIT Program for Border Inspection Begins
On January 5th, 2004, the first phase of US-VISIT, the border inspection program, became operational at 14 seaports and 115 airports across the country. Each nonimmigrant visa holder entering at one of these ports will undergo the standard inspection process and simultaneously will be processed through the US-VISIT system. Expansion of the program at airports and seaports is expected to continue throughout 2004. Unless Congress acts to delay the implementation deadlines, DHS will be required by law to expand the entry/exit program to the top 50 high traffic land border ports by December 31, 2004, and the remaining ports of entry by December 31, 2005.
In conjunction with US-VISIT, all consular posts abroad will be required to issue biometric visas by October 26, 2004. Two digital index finger prints and a photo will be taken of visa applicants, and their information will be checked against the Automated Biometric Identification System (IDENT) database. According to DHS, US-VISIT will apply only to nonimmigrant visa holders. Canadians and foreign nationals entering the United States pursuant to the Visa Waiver Program (VWP) will not be included in US-VISIT. Conversely, Canadians and Visa Waiver country applicants for admission to the U.S. in a status requiring a visa will be required to enroll in US-VISIT.
Children under the age of 14 and persons over the age of 79 on the date of admission are exempt from the program.
Prepare clients for delays at consular posts. Delays will occur in getting appointments at consular posts since the personal appearance waiver policy announced in 2003 that requires interviews of applicants between the ages of 16 and 60 will be subsumed by the US- VISIT fingerprint and photograph requirements. Delays will also occur between the dates of an applicant''s interview and the date of visa issuance. Visa issuance could potentially take days due to the requirement of IDENT checks. (Note: the IDENT check applies in both the nonimmigrant and immigrant visa application process. Currently, US- VISIT only applies to nonimmigrant visa holders.)
What does this mean for you?
- Be prepared to plan for and expect delays upon entering and exiting the U.S via major airports and seaports after January 5, 2004.
- US- VISIT is a mandatory procedure. Failure to provide the requested biometrics necessary to verify the nonimmigrant visa holder''s identity and to authenticate travel documents may result in a determination that the visa holder is inadmissible to the U.S.
- DHS considers it mandatory for visa holders to document their departure with US- VISIT if departure is via a port with US- VISIT exit capability. Failure to properly exit could affect your client''s visa eligibility or potentially cause him or her to be removable from the U.S. For clients who are entering the U.S. through a POE that has US- VISIT capacity, but not leaving through a port that has the exit capacity, you should maintain a copy of travel records and other documents as proof that you exit through a POE without an operational exit kiosk. No matter how you depart the U.S., you are required to surrender your I-94s
- This program means that the government will be more precisely aware of non-immigrants' periods of stay in the U.S. US- VISIT will permit DHS to calculate the duration of a visa holder's presence in the U.S. Such records will affect visa holders in a variety ways such as: immigration benefit eligibility in terms of overstays; one-year abroad requirements for H-1B and L-1 visas; time recapture petitions for H and L visas; two-year home residence requirements for J visas; physical presence requirements for substantial presence determinations under our tax laws; and, potentially in the future, LPR abandonment issues as well as time spent in the U.S. for naturalization purposes.
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