Monday, March 8, 2021

Why Immigration Visa Wait Times Are So Long


Applying for an immigrant visa to the United States is an all-consuming process. Applicants have to submit paperwork that sometimes spans several years of their lives and make their case in front of immigration officers multiple times. Over the years, the number of applications for immigrant visas has reached record levels. During the Trump administration, we also saw higher denial rates and Requests for Evidence (RFEs) in many categories of immigrant visas. Visa wait times seem to just grow longer.

All of these steps, plus the annual limits in some visa categories, make wait times exceptionally long. During 2020, many applicants for immigrant visas experienced significant delays in their cases due to U.S. immigration offices and embassies’ closures based on COVID-19 protocols.

We know that applying for a U.S. immigrant visa involves “getting in line” with hundreds of thousands of people. But why exactly are visa wait times so long? And what will President Biden do to improve it?

The Immigrant Visa Process, in a Nutshell

An immigrant visa allows you to live and work in the United States permanently. Most people know it as a permanent resident card or “green card.” There are many ways in which a person can become a permanent resident in the United States, but most immigrant visas fall under these categories:

Family-Based Immigrant Visas

Employment-Based Immigrant Visas

Diversity Visas

Refugees and Asylum Seekers

Regardless of the category under which you may qualify, the process involves multiple government agencies, including U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State (if you’re abroad). USCIS manages most of the immigration process.

Monday, March 1, 2021

J-1 Visa Benefits


What Are the Benefits of the J-1 Visa?

Over the past year, sweeping orders have banned many non-immigrant visa holders from entering the United States. The COVID-19 pandemic gave many former Trump administration officials the opportunity to restrict immigration based on fears surrounding the spread of the coronavirus and U.S. unemployment and immigration.

The extended executive order—in effect until March 31—has consequently kept J-1 visa holders out of the country for almost an entire year.

What is the J-1 visa?

The J-1 visa, often referred to as the “exchange visitor visa,” allows for people from all over the world to gain crucial skills in the U.S. that they take back to their respective home countries.

This could mean learning specialty skills in everything from hospitality to finance to mental health training or law. Individuals train in these skills and return home with knowledge, insight into American culture, resources, and connections.

This return home is often enforced through a feature of the J-1 visa called the “home residency requirement,” which requires individuals in different categories to return home for at least two years.

Unlike other visa categories which require approval through the Department of Labor, the J-1 visa is approved through the Department of State. This allows for programs to be curated by host-employers, highlighting what the visa recipient can expect to learn and for how long and who will oversee the program. Unlike other visa categories, spouses and dependents can be approved along with the J-1’s application.  This means that extensions are approved through sponsoring organizations and not with other government agencies.

The point of the J-1 visa category isn’t to take American jobs—rather, it’s designed to help train and create a network within global industries and tie countries together with common experiences.

Monday, February 22, 2021

A Win for Transparency


In a Win for Transparency, Court Orders Board of Immigration Appeals to Make Immigration Court Decisions Public

The Second Circuit has found that the Board of Immigration Appeals (BIA) must publish immigration decisions, reversing an earlier federal district court decision.

The case challenged the Department of Justice’s longstanding practice of failing to publish immigration decisions by the BIA—the highest administrative court deciding immigration cases—in any forum that could be easily accessed by the public. The decision in the case, brought by the New York Legal Assistance Group, highlights agencies’ obligations under the Freedom of Information Act (FOIA) to make certain records publicly available without individuals or organizations having to file individual FOIA requests to obtain them.

The provision of FOIA that requires agencies to proactively disclose certain agency records is sometimes called the “reading room provision” because agencies maintain FOIA Reading Rooms on their websites that can be accessed by the public. Documents that must be provided to the public without specific requests include: policies that have been adopted by the agency; agency manuals and instructions to staff; and “final opinions . . . as well as orders, made in the adjudication of cases.”

Under FOIA, documents that fall under the reading room provision cannot be “relied on, used, or cited as precedent by an agency” unless they are publicly available, or the party opposing the agency has “actual and timely notice of the terms thereof.” The fact that the unpublished decisions were cropping up in immigration court and BIA decisions was very problematic.

The Second Circuit reversed a previous ruling, finding courts do have the ability to order the BIA to make documents publicly available, not just available to an individual FOIA requester. In doing so, the court also disagreed with the D.C. Circuit, finding it had wrongly interpreted FOIA to prevent courts from ordering public disclosure.

Monday, February 15, 2021

Plan to Process


The Administration Unveils Plan to Process Asylum Seekers Subject to 

the Migrant Protection Protocols

The Trump administration sent over 70,000 people who came to the U.S border seeking asylum back to Mexico to wait for court hearings. This so-called “Migrant Protection Protocols” (“MPP”) program placed people in serious danger and made it nearly impossible for anyone to win protection. Court hearings under MPP were indefinitely suspended in March 2020. This left thousands of people stuck in Mexico in limbo.

One of President Biden’s first actions instructed U.S. Customs and Border Protection (CBP) not to put any new people into the program. Three weeks later, his administration has announced a plan to allow the thousands of people still waiting in Mexico to enter the United States.

Who will be allowed to enter?

Under the Biden administration’s plan, the only people who will be allowed to reenter the United States are the roughly 25,000 individuals who have pending MPP cases.

Importantly, far fewer people are likely still waiting at the U.S.-Mexico border. While exact figures are not available, it is likely that many have already returned to their home countries or left for safer locations in Mexico.

Monday, February 8, 2021

The ENV Program

The Electronic Nationality Verification Program: An Overview

U.S. immigration agencies use a range of programs to deport—or remove—certain noncitizens from the United States. Under the Trump administration, the Department of Homeland Security (DHS) and two of its component agencies, U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE), expanded their avenues for removal. One method, the Electronic Nationality Verification (ENV) program, was touted as a way to expedite the repatriation of certain Central Americans.

There is little public information about the ENV program—only fleeting references by officials or in obscure reports. Yet since 2019, the government has used ENV to rapidly deport thousands of people. This fact sheet describes the ENV program, whom it affects, and highlights concerns regarding the program.

What is the Electronic Nationality Verification Program?

Under the ENV program, CBP coordinates with ICE’s Enforcement and Removal Operations (ERO) to “remove eligible [individuals] with a final order of removal to their native countries.” As of 2019, the agencies can remove nationals of El Salvador, Guatemala, and Honduras through ENV. It is not clear whether more countries participate as of January 2021.

A pre-existing program with Mexico—called the Interior Repatriation Initiative (IRI)—provided the framework for ENV. ICE ERO piloted IRI with Mexico in 2012 and made it a permanent initiative a year later.

The ENV and IRI programs enable DHS to quicky deport from the United States a person with final removal orders without obtaining travel documents from the foreign national’s government. Prior to ENV, if an individual arrived at the border without a valid passport from their home country, ICE was required to contact the individual’s consulate to verify their nationality, as well as to obtain formal travel documents. ICE could obtain “electronic travel documents” for nationals of El Salvador, Guatemala, Honduras, and the Dominican Republic. Under ENV, not only are travel documents produced electronically but a person’s nationality is verified electronically, sometimes through the use of biometric identifiers. In some instances, people are deported within hours of arrival.

DHS announced in 2019 that it was expanding ENV. CBP has deemed ENV a successful “migration mitigation” strategy and indicated plans to implement ENV and other strategies in full after the COVID-19 pandemic.

Monday, February 1, 2021

Immigrants in Court Hearings


Immigrants Appear for Their Court Hearings, New Data Shows

Do most immigrants show up for their immigration court hearings? A new report released by the American Immigration Council reveals that the answer to this question is a clear “Yes.”

As the Biden administration begins its overhaul of the immigration enforcement system, we must ensure that our policies are based on facts. The report makes clear that many of our harsh detention policies relied on flawed data that suggested immigrants “disappear” before court hearings.

The Overwhelming Majority of Immigrants Appear for Their Immigration Court Hearings

The new study—authored by Professor Ingrid Eagly with the UCLA School of Law and Steven Shafer with the Esperanza Immigrant Rights Project—is based on government data of nearly 3,000,000 immigration court hearings spanning more than a decade. The study found that 83% of all nondetained immigrants attended every single one of their court hearings.

15% of those immigrants who did miss a court hearing and were ordered deported were later able to successfully reopen their cases and had their removal orders rescinded. This finding suggests that many of the small number of individuals who fail to appear in court wanted to attend their hearings, but never received a hearing notice or faced some hardship in getting there on time.

Government Statistics are Flawed

The study found that official government statistics significantly overstate the rates at which immigrants are ordered removed for missing court. The government only counts initial decisions by an immigration judge, which are just a subset of all cases.

But when you measure each decision made by a judge as well as pending cases, the picture changes. This complete view reveals that the government’s measurement produces results that suggest immigrants miss court twice as often as they actually do—34% of the time compared to just 17% of the time.

Monday, January 25, 2021

8 Actions on Immigration


President Elect Took Eight Administrative Actions on Immigration. 

Here’s What You Need to Know.

On his first day in office, President Biden took significant steps towards undoing the harm of the Trump administration’s immigration policies—and reforming our punitive and inhumane enforcement system.

In response to years of work by immigrants and advocates, Biden quickly signed a series of executive actions related to immigration. Here is a summary of eight immigration-related changes the new administration just implemented:

1. Scaling back Trump’s unchecked immigration enforcement.

An executive order and a related Department of Homeland Security (DHS) memo rescinding Trump’s enforcement policy that indiscriminately targeted anyone who could be deported. Starting on February 1, interim priorities will focus enforcement on people suspected of terrorism, most people who have arrived to the United States since November 1—and some people who are currently incarcerated and determined to be a public safety risk.

It will be important to watch how these interim enforcement priorities are applied in practice, especially given the United States’ history of racism in the criminal justice system and anti-terrorism initiatives and excessively harsh immigration consequences for many crimes.

2. 100-Day moratorium on most deportations.

A DHS memo implementing a 100-day moratorium on most deportations, starting on January 22. There are a few narrow categories of people who will still be deported, including people who have recently arrived to the United States and people who are suspected of terrorism. The State of Texas has filed a lawsuit against the moratorium claiming it violates agreements of questionable legality made by the Trump administration in its final days.

During the moratorium, DHS is required to review its enforcement practices and make recommendations for new priorities. Additionally, the Biden administration has not yet specified what will happen to the approximately 15,000 people currently in Immigration and Customs Enforcement detention. It is essential that further plans include an end to our country’s cruel immigration detention system.

For more Actions visit

Monday, January 18, 2021

Bond Eligibility For Detained Non-Citizen


Supreme Court hears arguments in complex case over bond eligibility for detained non-citizens

The US Supreme Court on Monday heard oral argument in Pham v. Guzman Chavez, which addresses the detention of aliens who are both in the process of removal from the US and subject to a reinstated removal order.

The case stems from a dispute over whether a group of eight non-citizen immigrants, initially detained by the US government for illegal entry, could seek release via bond hearings before immigration judges. A further complication arose when examining the US government’s actual statutory authority in detaining immigrants seeking to overturn deportation decisions after reinstated removal orders—removal orders which are reinstated after an immigrant lawfully re-enters the US.

The case revolves around two sections of the 1952 Immigration and Nationality Act, which significantly modified federal law as it relates to immigration and migration policy in the US. Typically, noncitizens with reinstated removal orders are swiftly removed by the government. However, immigrants may challenge the removal orders with “withholding claims,” which, if granted, bar their removal as a means of protection from feared persecution or torture if they return to their home countries.

In the lower US District Court, the government argued that Section 1231 of the Act automatically subjected the immigrants to “mandatory detention.” The immigrants argued that another section of the Act, Section 1226, allowed them to appear in front of immigration judges. The court determined that the group was detained under Section 1226, ruling for the immigrants. On appeal, the US Court of Appeals for the Fourth Circuit affirmed the ruling, concluding that the petitioners were entitled to individualized bond hearings. The court held that the Act requires that plaintiffs receive individual bond hearings, where a judge determines if they pose a “flight risk.” If the judge makes no such finding, the government must release the individual from detention.

Matthew Albence, in his official capacity as Acting Director of US Immigration and Customs Enforcement (ICE), filed a petition with the Supreme Court in January 2020.

Monday, January 11, 2021

Strong Ties

 Why Immigrants With Strong Ties to the US Should Be Allowed to Stay

This article is part of the Moving Forward on Immigration series that explores the future of immigration in the aftermath of the 2020 presidential election. 

The Biden administration will soon lead a vibrant nation of immigrants—a nation that includes millions of noncitizens with deep ties to the United States who are at risk of deportation.

This important and diverse population includes immigrants who have lived in the United States for many years, have close family in this country, and make meaningful contributions to their communities, the workforce, and the economy.

Until we have a legislative solution, the administration must use all available tools to provide stability and protection for long-residing immigrants and their families.

Protect People with Temporary Protected Status

Temporary Protected Status (TPS) is a legal status available to people from certain designated countries suffering from natural disasters, armed conflict, or other extraordinary circumstances. People living in the United States at the time their country is designated for TPS may apply for protection, which includes temporary permission to stay and work authorization.

The Biden administration should issue new designations for those countries that the Trump administration sought to terminate—El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan.

While court orders have delayed the termination of TPS for these countries, TPS holders will be in legal limbo unless the new administration acts.

Monday, January 4, 2021

Spouse Green Card


Helping Your Spouse Get a Green Card

A U.S. citizen or permanent resident can help a spouse get an immigrant visa (green card). Here's how to start the process and get the quickest processing.

A “spouse visa” in this article is a term to refer to an immigrant visa (green card) for spouses. The U.S. government may issue a spouse visa to the foreign national spouse of a U.S. citizen or permanent resident. For couples who have been married more than two years, the U.S. Department of State will issue an “IR1” visa. On the other hand, spouses who have been married less than two years get a “CR1” visa. This code indicates that the new permanent resident (green card holder) is a conditional resident. In fact, most spouse visa beneficiaries are approved as conditional residents.

Immigration officials, from the U.S. Department of State and also U.S. Citizenship and Immigration Services (USCIS), scrutinize spouse relationships more than other types of immigrant visa applications. That’s because there’s been an historically high rate of visa fraud for marriages as compared to other relationships. Therefore, immigration officials want reassurance that the marriage is legitimate and that the foreign spouse is obtaining a green card based on a genuine relationship.

Requesting the Spouse Visa

To start the process of applying for the spouse visa, you have to submit some forms. In other words, all of the forms are not filed together. Initially, the U.S. citizen or permanent resident files Form I-130 and I-130A with USCIS. Form I-130 is a request by the U.S. citizen or permanent resident to make a visa available to a foreign national spouse.

It’s extremely important to prepare a complete I-130 petition package with all of the necessary supporting documents when filing for a spouse visa. USCIS may send a Request for Evidence (RFE) if any information is missing. This additional step will delay the case and increase the time it takes to approve the petition. The typical I-130 petition package.