However, during the past week, I had the opportunity to talk to two different immigrants who are headed for immigration disaster because they relied on the legal advice of a paralegal rather than speaking with an attorney.

Immigration attorneys constantly warn potential clients about the dangers of hiring immigration consultants and notarios instead of hiring experienced attorneys.  However, the immigrants that I spoke to did hire law firms, but never got to speak with the attorneys.  All of their inquiries were routinely handled by paralegals.  Only when they were placed into removal proceedings before an Immigration Judge did the attorneys suddenly take an interest in their cases.

At that point, the immigrants took their business elsewhere.

Please don’t get me wrong.  In most immigration law firms, especially those which specialize in employment-based immigration, the majority of the day-to-day tasks are performed by paralegals.  For example, most of the H-1B, L-1, O-1 and P-1 petitions and PERM applications handled by our law firm are completed by paralegals.  And they do a great job.

However, they are supervised by attorneys.  And they know enough to refer any legal questions posed by a client to an attorney.

Regrettably, some immigration law firms instruct their paralegals to handle each case from beginning to end, and to respond to all client questions, and not to bother the attorneys.

This is a recipe for disaster, both for the client and for the law firm.  While most of our paralegals know far more about USCIS fees, procedures, LCAs and such than Yours Truly, they are not necessarily experts regarding complex legal questions involving section 245i, 245k, criminal convictions, CSPA, etc., etc.

That is where we instruct our paralegals to have our clients to talk one-to-one with an attorney.

This is not rocket science.  If you check into a hospital for heart surgery, you want to be operated on by a skilled heart surgeon, not by a registered nurse or a therapist.

The sooner immigrants demand to speak with an attorney when they have a legal question, the sooner the offending attorneys will get with the program.  After all, it is their responsibility, their license and their malpractice insurance.

And, of course, not all attorneys are created equal.  If you are looking for the best results in your immigration case, you should do some research before you hire a law firm to represent you.

A good place to start is by viewing our video, “How to Select an Immigration Attorney”.

It should be emphasized that each of these initiatives are still in the planning stage with no set date as to when they will become effective.

Quoting from the DHS announcement: “The initiatives described below will serve to make the United States more attractive to highly-skilled foreign students and workers, thereby improving the competitiveness of U.S. companies in the world market and stimulating U.S. job creation.”

1. Work Authorization for H-4s

The government is proposing to grant work authorization to some H-4 spouses.

Currently, H-4 spouses cannot obtain work authorization until a few months after they apply for adjustment of status.  Given the long wait in some of the employment-based categories, they are often prohibited from employment for several years.

In the future, they may qualify for work authorization after a PERM application is approved for the H-1B spouse, or when an I-140 is filed.

Stay tuned for details.

2. Work Authorization for H1-B1s and E-3s

Persons with H1-B1 visas (professionals admitted to the U.S. under Free Trade Agreements with Chile and Singapore) and E-3 visas (professionals who are citizens of Australia) are already allowed to work in the U.S.

Where the problem comes in is when they apply for an extension of stay.  H-1B professionals with pending extension applications are permitted to keep working for 240 days while their extension applications are pending.  H1-B1s and E-3s are not allowed to keep working in such circumstances for even 24 hours.  Ridiculous!

DHS plans to level the playing field a bit, but the question is when?

3. STEM OPT Extensions

In 2008, the USCIS began permitting some foreign-born graduates of U.S. universities to extend their work permits (also known as Optional Practical Training or “OPT”) for an additional 17 months if they fulfilled each of the following conditions:

• Currently participating in a 12-month period of approved post-completion OPT;
• Successfully completed a degree in science, technology, engineering, or mathematics (STEM) included in the DHS STEM Designated Degree Program List from a college or university certified by the U.S. Immigration and Customs Enforcement’s Student and Exchange Visitor Program;
• Working for a U.S. employer in a job directly related to the student’s major area of study;
• Working for, or accepted employment with, an employer enrolled in U.S. Citizenship and Immigration

Services’ E-Verify program; and

• Properly maintaining F-1 status.

Now, the DHS plans to expand the program slightly.  While the present program is limited to students whose most recent degree is in a STEM field, a past degree will soon suffice (e.g., an MBA with a B.S. in Computer Science).  Also, DHS plans to expand the STEM Designated Degree Program List.

In a related proposal, F-2 spouses of foreign-born students will be permitted to enroll part-time in academic courses.  The number of Designated School Officials will also be increased.

4. Outstanding Professors and Researchers

Currently, to be considered an outstanding professor or researcher for purposes of qualifying for permanent residence, the person must meet 2 of 6 criteria.

Comparable evidence is not accepted in this category although it is in the Extraordinary Ability category, and the USCIS has recently begun to issue an increased volume of requests for evidence and denials in this category.

Again, the DHS plans to level the playing field by allowing comparable evidence to be accepted for Outstanding Professors and Researchers.

5. Entrepreneurs in Residence Program

On February 22, USCIS officials will meet with academic, business and government leaders.  The aim of this program is to streamline procedures for deciding temporary benefit applications commonly utilized by foreign-born entrepreneurs.

CONCLUSION

In our view, these are steps, perhaps baby steps, in the right direction.  How significant these changes will be and when they will be implemented remains to be seen.

At least, those are the numbers which have emerged from the ICE pilot programs just completed in Denver and Baltimore. From early December until mid-January, 16 ICE attorneys reviewed 7,800 pending removal cases in Denver under the Morton Memo and determined that 1,300 should be administratively closed. That’s about 16% or 1 in 6.

Keep in mind that the fortunate 1 in 6 are not given green cards or even work permits. This is a long way from an “amnesty”. Only Congress can pass amnesty legislation, and to be perfectly frank, that possibility is about as remote as a U.S.-Iran mutual defense pact.

This is about as far as the Executive Branch of government can go without overstepping the prerogatives of Congress. In the eyes of some Republican leaders, it actually exceeds the powers of the Executive. However, prosecutorial discretion memos have occurred under both Republician and Democrat Administrations. Money is not infinite. Without a tax increase, our country has only enough resources to deport about 400,000 individuals out of the 11-12 million undocumented persons who live and work in the U.S.

What’s more is that we have only about 260 overworked Immigration Judges to hear 300,000 pending cases. Judges are now scheduling cases in 2014. This is great news if you are married to a green card holder who is able to naturalize before then. However, do we really want to live in a country where serious criminals and persons who are security threats are allowed to remain out on the street for years while they wait for their deportation hearings?

Policy implications aside, how does the new policy affect you if your case is currently before an Immigration Judge, or if your application for immigration benefits is denied by the USCIS?

Please be assured that even as you read these words, the Obama policy is spreading far beyond Denver and Baltimore and is going nationwide. Be patient. It is no easy task to review 300,000 cases. It will probably take the greater part of 2012 to do so. If the present odds are any indication of things to come, about 50,000 cases will be administratively closed.

Will you be one of the lucky 50,000?

Those whose cases at at the extremes are easiest to predict: If your parents brought you to the U.S. as a child, and you have never been convicted of a crime, the chances of having your case closed are excellent. Ditto if most of your family are legally in the U.S. Conversely, if you are a criminal, a frequent illegal border crosser, have committed immigration fraud or are thought to be a security threat, don’t hold your breath!

If your case falls somewhere between these extremes, you have little choice but to wait and see if the folks at ICE choose to exercise prosecutoral discretion in your case. While you are waiting, you and your immigration lawyer would be wise to browse through our prosecutorial discretion page.

At least, those are the numbers which have emerged from the ICE pilot programs just completed in Denver and Baltimore. From early December until mid-January, 16 ICE attorneys reviewed 7,800 pending removal cases in Denver under the Morton Memo and determined that 1,300 should be administratively closed. That’s about 16% or 1 in 6.

Keep in mind that the fortunate 1 in 6 are not given green cards or even work permits. This is a long way from an “amnesty”. Only Congress can pass amnesty legislation, and to be perfectly frank, that possibility is about as remote as a U.S.-Iran mutual defense pact.

This is about as far as the Executive Branch of government can go without overstepping the prerogatives of Congress. In the eyes of some Republican leaders, it actually exceeds the powers of the Executive. However, prosecutorial discretion memos have occurred under both Republician and Democrat Administrations. Money is not infinite. Without a tax increase, our country has only enough resources to deport about 400,000 individuals out of the 11-12 million undocumented persons who live and work in the U.S.

What’s more is that we have only about 260 overworked Immigration Judges to hear 300,000 pending cases. Judges are now scheduling cases in 2014. This is great news if you are married to a green card holder who is able to naturalize before then. However, do we really want to live in a country where serious criminals and persons who are security threats are allowed to remain out on the street for years while they wait for their deportation hearings?

Policy implications aside, how does the new policy affect you if your case is currently before an Immigration Judge, or if your application for immigration benefits is denied by the USCIS?

Please be assured that even as you read these words, the Obama policy is spreading far beyond Denver and Baltimore and is going nationwide. Be patient. It is no easy task to review 300,000 cases. It will probably take the greater part of 2012 to do so. If the present odds are any indication of things to come, about 50,000 cases will be administratively closed.

Will you be one of the lucky 50,000?

Those whose cases at at the extremes are easiest to predict: If your parents brought you to the U.S. as a child, and you have never been convicted of a crime, the chances of having your case closed are excellent. Ditto if most of your family are legally in the U.S. Conversely, if you are a criminal, a frequent illegal border crosser, have committed immigration fraud or are thought to be a security threat, don’t hold your breath!

If your case falls somewhere between these extremes, you have little choice but to wait and see if the folks at ICE choose to exercise prosecutoral discretion in your case. While you are waiting, you and your immigration lawyer would be wise to browse through our prosecutorial discretion page.

She had entered the U.S. over 10 years before on a K-1 fiancee visa filed by a U.S. citizen who she met on the Internet and who had traveled to her country to meet her.  Only when she arrived in the U.S. did she learn that he lived in his friend’s garage, and had only sponsored her in the hopes that she would support him for the rest of his life.

Within a few days, she left him and never saw him again.  The following year, she and another U.S. citizen fell in love and go married. They bought a house together, and she helped him run his neighborhood business.

Hoping to legalize the wife’s immigration status, the couple sought our advice.  Unfortunately, it is impossible for a person who enters the U.S. as a K-1 fiancee of a citizen to adjust their status in the U.S. through a marriage to another U.S. citizen.  To add insult to injury, if she choose to return to her country to apply for a green card, her previous unlawful presence in the U.S. would bar her from returning to the U.S. for 10 years.

They had taken advantage of a couple of “free consultations” offered by attorneys near where they lived, and the attorneys assured them that she would qualify for a “waiver” of the ten-year bar.  Just sign a contract, and give me a check, and I’ll take care of everything!

Aware of the adage that “if something appears too good to be true, perhaps it is”, they decided to seek a second, or accurately, a third opinion.  And as is all-too-often true, I became the bearer of bad news. 

I informed the couple that I would not take their case since there was nothing an attorney could do to help them.  A waiver of the 10-year bar required that the wife show “extreme hardship” to her U.S. husband.  True, they had been married for a number of years, and the emotional hardship which her husband would likely suffer would be tremendous. On the other hand, they had no children together, her husband was healthy and making plenty of money.  I very much doubted that the USCIS would find the hardship to the husband would meet the ”extreme” standard.  And what if her waiver were denied? She could appeal, but this would take a minimum of two years, and  the outcome would be tenuous at best.

The husband was upset.  The wife was in tears.  “But why did the other lawyers say we had a good case?”  Although the answer seemed all-too-obvious, all I did was shake my head and tell them how sorry I was for them.

Fast forward a few years.  The couple returns to our office.  Now, the husband is suffering from a debilitating disease.  Fortunately, the wife had medical training in her country, and with the help of some wonderful physicians, her husband was able to survive, but only with her constant care and attention.

On our website, they had read about a form of relief from deportation called cancellation of removal.  Would she qualify?  10 years physical presence in the U.S.?  Yes.  A person of good moral character?  Yes.  And would her husband suffer “extraordinary and extremely unusual hardship”? I asked them a number of questions, and then answered, yes.

They retained our law firm to represent them in Immigration Court.  Attorney Amy Prokop spent many hours documenting the hardship, and discovered many types of additional hardship beyond the husband’s medical condition. After Ms. Prokop appeared at the master calendar hearing, she was surprised to receive a call from the attorney for the government.  Based on the documents submitted, he was impressed by the showing of hardship.  No need to bring expert witnesses and medical experts to the hearing. If she and her husband simply testified as to the accuracy of the materials submitted, the government would stipulate to granting her a green card through cancellation of removal. 

Before the court date was reached, we prepared our clients for the merits hearing before the Immigration Judge.  On two separate afternoons, we went over the testimony with the couple.

Then, something unexpected and upsetting occurred.

A few days prior to the hearing, Attorney Prokop received a message from the government attorney.  A different Judge and a different government attorney had been assigned to the case.  Did the verbal agreement still hold?  Not clear.  We began preparing for the worst.

Not an early riser by nature, I booked a room at the Biltmore Hotel near the Immigration Court on the day before the hearing, and called the front desk to arrange for a wake-up call.  I needed to be at my best at the hearing early the next morning.

I spoke with the new government attorney prior to the hearing, and he seemed quite reasonable. I placed the wife on the witness stand.  Although quite nervous, she made an excellent witness. The preparation had paid off.  After I finished my direct examination, the Judge asked the government attorney if he had any questions.  No, he did not.

I moved to call the husband to the witness stand, but even before he entered the courtroom, the government attorney stipulated that we had met the “extraordinary and extremely unusual” hardship standard, and that the government agreed that our client had established eligibility for a green card through cancellation of removal.  The Immigration Judge granted the wife permanent residence, and the couple’s immigration saga had a very happy ending.

Only after the couple had left the courtroom, I reflected to myself, what would have happened if the wife had gone back to her country when her husband was still healthy and applied for a waiver?  Would the government have allowed her to return to the U.S. or would she have had to remain separated from her husband for 10 years?

This is as it should be since the stated purpose of our immigration laws is to promote family unity and spouses of U.S. citizens are usually given special preference in regularizing their status. 

Despite this general rule, many thousands of families in the U.S. consist of one spouse who is a U.S. citizen and another who is an illegal alien.  Worse yet, our laws require many spouses of U.S. citizens to leave the U.S. and travel abroad in order to apply for green cards.  As a result, many of these spouses are forced to remain separated from their families for a lengthy period, from a few months to over 10 years.

Now, the Obama Administration seeks to halt this terrible travesty. 

Before we explain the new policy proposal, it is best to recount  the reason for this separation.

In 1996, Congress passed and President Clinton signed the “Illegal Immigration Reform and Immigrant Responsibility Act” (IIRIRA).  This law sought to punish persons who were “unlawfully present” in the U.S. by making it difficult for them to receive immigration benefits.

Here is one example that is worth a thousand words.

Let’s say that a Mexican couple unlawfully entered the U.S. with their 3 children back in the 1980s.  In 2005, their son Marty, now 21 years of age, married Barbara, a U.S. citizen.  Marty and Barbara have been married for 6 years, and have two children.  Yet, Marty is still unlawfully in the U.S.  Why is that? 

If Barbara sponsors him for a green card, he will have to apply at the U.S. Consulate in Ciudad Juarez, Mexico.  Barbara hesitates to do this because Ciudad Juarez is a very dangerous place. More than one applicant for immigration benefits has been murdered or severely injured there.  There is, however, another compelling reason why Barbara does not want her husband to go to Juarez. 

Because Marty has been unlawfully present in the U.S. since his parents brought him here, the law bars him from returning to the U.S. for a period of 10 years.  There is a way to avoid this, but it is neither quick nor certain. 

If Marty can demonstrate that Barbara would suffer “extreme hardship” if he were not allowed to return to the U.S. for 10 years, then he can apply to obtain a “waiver” from this bar.  However, applying for a waiver is very tricky since only hardship to Barbara matters under the law.  Hardship to Marty or even hardship to their children simply does not count. 

Also, Marty must remain outside the U.S. while his application is pending, a difficult proposition since Marty is the sole breadwinner of the family.  It takes the government several months or worse up to one year to process Marty’s waiver.  If the waiver is denied, which occurs about half the time, Marty can appeal, but that is a two-year process.  Marty must still remain outside the U.S. the entire time. 

Because of this law, thousands of families trying their best to follow the law have been separated for years, have had to go on welfare and have had their homes foreclosed when they could no longer make payments on their mortgage.  As a result, most U.S. spouses in this situation simply choose not to sponsor their foreign-born spouses for green cards.  The spouses simply remain in the U.S. with their families in unlawful status. 

Do these same harsh penalties apply to spouses of U.S. citizens who enter the U.S. from Europe ?  Most of these spouses enter the U.S. lawfully as visitors or students, and many overstay their visas and remain in the U.S. illegally for months or years before marrying U.S. citizens. Yet, the law permits them to obtain their green cards without having to leave the U.S. or even requiring them to obtain a waiver.  They may be illegal, but the severe penalties mentioned above mostly fall on spouses from south of the border. 

So what is the new policy that was recently proposed by the USCIS and how will it promote family unity? 

Is the government going to treat illegal Mexican spouses of U.S. citizens the same as illegal European spouses, and permit them to get their green card in the U.S.?  No.  Is the government going to dispense with the waiver requirement or ease the standards for what is considered extreme hardship?  Not on your life!

What the Obama Administration is proposing is something much more modest.  Nothing in the new proposal will change the law.  It simply provides that before the green card appointment takes place outside the U.S., the waiver application may be submitted in the U.S. and the family can remain intact while waiting for the result. 

Furthermore, the proposed regulation which is scheduled to appear in the Federal Regulation on January 9, would limit the applicability of the new waiver process in 3 additional ways:

1. Only immediate relatives of U.S. citizens may apply;

2. Only unlawful presence waivers are included; and

3. The extreme hardship must be to qualifying relatives who are U.S. citizens.

Because lengthy family separations are avoided, the new policy would enable more U.S. citizens to apply to legalize their spouses, and would dramatically lower the number of illegal aliens in the U.S., something that everyone claims to be in favor of.

However, Representative Lamar Smith (R-TX), the principal author of IIRIRA, who currently serves as the Chairman of House Judiciary Committee, characterized the proposal as an “abuse of administrative powers”.

We disagree.  Still, we caution families to remember that the new policy is only at the proposal stage, and it may be many months before it is fully implemented.  This is definitely a good time to start preparing your I-601 waiver application!

On December 13, Senators Kent Conrad (D-ND) and Jerry Moran (R-KS) introduced the S.1979, the “Conrad State 30 Improvement Act”.

This bipartisan bill would make it easier for physicians educated in other countries to obtain temporary visas and permanent residence in the U.S. if they obtain offers of employment in medically-underserved areas of this country.

Senator Conrad, who has announced that he will retire from the Senate in 2012, sponsored a law that was enacted back in 1994 which, for the first time, permitted states to sponsor up to 20 physicians annually for J waivers if these doctors found employment in such areas.  The number of waivers available to each state was increased to 30 in 2002.

For the past 17 years, the Conrad program has permitted states to sponsor over 9,000 foreign-born physicians to work in underserved areas.  However, this program is not a permanent part of the law.  It must be renewed every 2 or 3 years.  Also, since the early 1990s, more and more physicians have obtained H-1B status, rather than J status, in order to pursue their medical residencies and fellowships in the U.S.  These physicians lack a legal incentive to work in underserved areas.

Among other things, S.1979 would do the following:

• Make the Conrad program a permanent part of the law;
• Allow physicians who work in underserved areas to immigrate under the EB-1 category rather than the EB-2 category;
• Allow physicians who pursue their medical residencies in H-1B status and agree to work in underserved areas to restart the maximum 6-year duration of their H-1B status;
• Increase the number of physicians that states can sponsor annually to 35 under certain circumstances; and
• Make it easier for physicians in H-1B status who are work in underserved areas to change employers.

The passage of this legislation would be a boon for rural and inner city America since over 20% of our country suffers from a shortage of physicians.  This shortage is slated to rise to over 200,000 by 2020.

Since the EB-1 category is “current” for all countries, the bill would aid Indian and Chinese physicians who are presently disadvantaged by backlogs in the EB-2 category.

Also, the bill would, for the first time, aid physicians who complete their medical residencies and fellowships in H-1B status.  This is important because the number of J-1 medical residents and fellows who are eligible to participate in the Conrad State 30 program has been steadily decreasing, much to the disadvantage of rural and inner city America.  Typically, because of the 6-year maximum duration of H-1B status (with limited exceptions under AC-21), these physicians must scrabble to attempt to secure permanent residence in the U.S. before their H-1B status can no longer be extended.  S.1979 would solve this problem for those physicians who work in underserved areas.

As Senator Moran stated in his press release, “S. 1979 provides additional incentives for more doctors to participate in the program. Also, the bill provides a method for states to increase the number of waivers available to work in underserved communities.”

We will follow the progress of S.1979 as it moves through the legislative process.

Why? 

Because the future of our country depends on attracting the world’s most talented people to our shores.  Advances in disease prevention, information technology and in many other fields are accomplished by these people.   These people start-up companies which employ hundreds of thousands of U.S. workers.  A person’s intelligence and ability to innovate is not determined by their country of birth.  Sergei Brin of Google, Andy Grove of Intel, Jerry Yang of Yahoo and Vinod Khosla of Sun Microsystems are just a few of the thousands of immigrants who came to the U.S. and established companies that now employ hundreds of thousands of U.S. workers.

There are no country quotas for H-1B professionals.  Neither are there limits on the number of spouses and children of H-1B professionals.  When the H-1B caps were raised by Congress, it made sense to review and revise the number of EB-2 and EB-3 professionals who were allowed to immigrate to the U.S.   However, this issue was ignored by Congress and the result is our present massive EB backlogs, particularly for those born in India and China.

As 2012 approaches, there are over 100,000 persons waiting in line for green cards whose employers have demonstrated that they are filling jobs for which there are no qualified U.S. workers.  The waiting times stretch from 6 years for EB-3 engineers, therapists and teachers from over 190 countries worldwide to much longer waits for professionals born in China and India.  Since over 50% of those on the EB-3 waiting list are born in India, the 7% country-quota means that many of these people will still be waiting for their green cards in 15 to 20 years, or else they will simply give-up and go home.  If they do, it is our country which will be deprived of their talent.  

What is the answer to this problem?

On November 29, the House of Representatives passed the “Fairness for High Skilled Immigrants Act” by a lopsided majority.  The bill would phase out the 7% country quotas over the next 3 years.  If the bill is enacted into law, persons born in countries other than China and India would be limited to 15% of the EB green cards this year, and 10% per year during the next 2 years.  As a result of this approach, the worldwide EB-2 category would instantly develop a backlog, and the nearly 6-year EB-3 backlog would quickly grow to 7 to 10 years or more.  And guess what? If the worldwide EB numbers retrogress, persons from India and China, professionals from the countries that the bill is trying to help, will also suffer.

Only by providing more EB visas can such a disaster be averted.

Congress is adverse to raising the number of EB visas.  However, Congress has, in the past, made available (“recaptured”) some of the many thousands of EB green cards that were lost in the past due to bureaucratic delays.  Congress may also wish to consider exempting immediate family members (spouses and children) of EB immigrants from the 140,000 cap on EB green cards, similar to the way that they are exempted from the cap on H-1B visas.

However, because of our current high-unemployment rate, there is a natural tendency of legislators to shy away from providing additional green cards.  Therefore, I propose that Congress should consider suspending the visa lottery for 2 years, and use the 100,000 visas which would have been given to lottery winners to those stuck in the EB backlogs.

Lottery winners are chosen at random and are not required to have job skills that are useful to our economy or even family ties in the U.S.  Clearly, encouraging professionals whose skills are in short supply and who are already working lawfully for employers in the U.S. is more important that allowing people to immigrate randomly.

The Senate will shortly take up the “Fairness for High Skilled Immigrants Act”.  Let’s hope that in addition to abolishing country quotas, they will amend the bill to eliminate the huge backlogs which would occur if they simply ratify the existing legislation.

Not wanting his daughter to leave the U.S., he had consulted numerous immigration attorneys in the state where he lived. They all told him the same thing. His daughter’s CSPA age would be 21 within weeks, and she needed to leave the country.

First, I had him explain the facts to me. His daughter was born in September 1988. His employer had filed an I-140 on his behalf in April 2007 at which time his daughter was 18 1/2 years old. In July 2007, while the I-140 was still pending, all the EB-2 and EB-3 priority dates became current. His attorney submitted I-485s on behalf on him, his wife and his daughter. After a couple of Requests for Evidence, the I-140 was approved in June 2009.

Three months later, in September 2009, the daughter had her 21st birthday. Since the I-140 had been pending for 2 years and 2 months, CSPA allows this time to be subtracted from his daughter’s age. Therefore, her CSPA age was only 18 1/2 in September 2009. However, his attorney warned him that if the family did not receive their green cards by November 2011, his daughter would “age-out” and have to leave the country.

I explained to him that CSPA worked as follows: A child’s CSPA age is determined on the latter of the following two dates: (1) when the priority date became current (July 2007); or (2) when the visa petition was approved (June 2009). In his daughter’s case, the later date was June 2009. At that time, her age was 20 years and 9 months old. However, since CSPA permitted the length of time that the visa petition was pending to be subtracted from her age, we could subtract 26 months from her age. Thus, her CSPA age was 18 years and 7 months.

CSPA also requires that she “seek to acquire” permanent residence in the U.S. within one year of visa availability. Since an I-485 had been filed for her in July 2007, the same month that the visa became available, this requirement had been complied with.

However, now, because of the retrogression in the EB-3 numbers, it was over 4 years later, and her priority date was nowhere near current. Was her attorney correct that her CSPA age would be 21 years old in November 2011? I did not think so. I advised her father that once she complied with all of the CSPA requirements, her CSPA age was effectively frozen at 18 years and 7 months forever. However, I wondered why all the other attorneys that he had consulted had told him that she was going age out in November 2011.

I asked Attorney Amy Prokop in our office to research the matter. She e-mailed me a section of the one of the USCIS’ memos on the subject, the Neufeld memo of April 30, 2008.

The relevant portion of the Neufeld memo states as follows:
“If the alien beneficiary’s CSPA age is under 21, he or she remains a child for purposes of the application for permanent residence provided the beneficiary properly applies for permanent residence, based on the subject petition, within one year of visa availability and notwithstanding the alien’s CSPA on the date of adjudication of such application.”
Further, the Neufeld memo contains a section specifically devoted to the subject of retrogression:

“Visa Availability Date Regression. If a visa availability date regresses, and an alien has already filed a Form I-485 based on an approved Form I-130 or Form I-140, the officer should retain the Form I-485 and note the date a visa number first became available. Once the visa number again becomes available for that preference category, determine whether the beneficiary is a “child” under paragraph 21.2(e)(1)(ii) using the visa availability date marked on the Form I-485, as long as the I-485 was filed within one year of that visa availability date.”

When I e-mailed the father a message that his daughter could remain in the U.S. and adjust status with he and his wife when the priority date became current, he was thrilled. So was his daughter who is pursuing her Master’s degree.

Given the retrogression in the employment-based categories, it is very important that parents of sons and daughters who turned 21 years of age before they obtain permanent residence, and their immigration attorneys, fully understand how the Child Status Protection Act operates.

The law will permit certain undocumented students who have graduated from high school and are attending public universities in California to qualify for state financial aid.

California is one of about a dozen states to allow undocumented students to qualify to pay in-state tuition.  With the signing of the DREAM Act, California joins Texas and New Mexico in permitting these students to obtain state-funded financial aid. 

The new law will affect only a fraction of one percent of all students attending the University of California, the California State Universities and the California Community Colleges.  The California Department of Finance estimates that the new law will result in the expenditure of an additional $14.5 million in CalGrants to 2,500 university students.  If this seems like a lot of money, consider that this amounts to just 1% of the $1.4 billion annual funding for CalGrants.

Given California’s budget crisis, the amount of funding for education has been cut dramatically.  The tuition at public universities has skyrocketed since I received a B.A. and a law degree from UCLA.  It is now virtually impossible for many students to attend public universities in California without CalGrants.

Yet, anti-immigrant groups have already started criticizing the new law.  A spokesperson for the anti-immigrant Federation of Americans for Immigration Reform characterized the new law as a “reckless use of taxpayer” money.

I disagree.  Why should the State of California finance a student’s primary and secondary education for 12 years only to make it impossible for him or her to attend a public university?  I have met many of the DREAM Act students at my alma mater UCLA.  Most were not even informed of their undocumented status by their parents until they applied for publicly-funded loans and scholarships.  It makes no sense whatsoever to deprive them of the opportunity to gain a decent education and contribute to society. 

This tiny amount of money will help these students become productive members of society.

Now, if we could only get the DREAM Act passed on the national level.