Three pointless things that should stop.

Monday, February 24th, 2014
By: Jonathan MontagJ.D.

Immigration law, as immigration lawyers (and their clients) say often, is quite complex. There are a lot of hoops people have to jump though to get a benefit. Forms on top of forms asking the same things over and over. Fees on top of fees. Petitions, applications, security checks, medical exams, interviews, investigations, verifications. With all the stuff that is deemed necessary, the Department of Homeland Security and the Department of State should, one would think, want to eliminate pointless processes. Here are three that should be eliminated posthaste:

1. Giving permanent residence cards to U.S. Citizens.

According to INA § 320, if a person is under 18 years old and becomes a permanent resident or is a permanent resident and his parent is or becomes a U.S. citizen, the child automatically becomes a U.S. citizen. It’s magical, cosmic. Here is what the statute says:

§320. Children born outside the United States and residing permanently in the United States; conditions under which citizenship automatically acquired

(a) A child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled:

(1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization.

(2) The child is under the age of eighteen years.

(3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence….

So what happens when a child whose parent is a U.S. citizen becomes a permanent resident? He is sent a green card. But he is not a permanent resident. He is a U.S. citizen. Why should the U.S. government sent a U.S. citizen a green card. He should be sent a certificate of citizenship. USCIS indicates that the fee for making a permanent residence card is $165. I say apply that amount to making a certificate of citizenship. It reflects the child’s real immigration status and may even save the government a little coin.

2. Making people with criminal hits get fingerprinted over and over.

Anyone who gets involved in immigration benefits knows he will be fingerprinted over and over again. People who commit crimes and are fighting to keep or obtain legal status can find themselves fingerprinted over and over by CBP, when encountered at a border, ICE, while being processed for removal proceedings, and by USCIS, over and over, while seeking benefits. USCIS cannot store  fingerprints in its databases (apparently) and does not want to rely on having a fingerprint card in an individual’s file (apparently). So, over and over, people get fingerprinted. However, people who are identified as having a criminal conviction through IDENT, are assigned an ID number and records can be checked simply by using the ID number. If the idea of having a fingerprint card in every file is too bewildering, then at least for people who have a criminal conviction, which is a great number of people if you consider all the things people get arrested for, no fingerprinting should ever be required. That would save the government and its customers a lot of aggravation and a lot of money and will end the question I am asked all the time, “Why do I need to be re-fingerprinted? My fingerprints have not changed?” OK, two questions.

3. Making provisional waiver grantees go abroad.

As all aliens should know, but unfortunately it never seems to penetrate, if a person is in the United States in “unlawful presence” for more than 180 days and departs the United States, or for a year ore more and departs the United States, he cannot come back for 3 years or 10 years, respectively. INA § 212(a)(9)(B). Further, according to immigration law, a person otherwise eligible to adjust status (become a permanent resident) in the United States, cannot adjust status if he entered the United States without inspection. INA § 245(a). The way to become a permanent resident is limited. For the most part (there are exceptions, always with the exceptions),the person must leave the United States and obtain an immigrant visa at a U.S. Consulate abroad. Being in the U.S. after entry without inspection is one way that the accrual of unlawful presence starts. So, if a woman enters the United States without inspection and marries a United States citizen after the passage of 181 days from the initial entry, if she leaves to get a visa, she faces a 3 year bar to returning to the United States. If she allows a year to pass and leaves, she cannot come back for ten years. I laid all this out in a movie.

There is a waiver for this unlawful presence bar at INA § 212(a)(9)(B)(v). If an applicant for a permanent residence visa can show extreme hardship to a U.S. citizen parent or permanent resident spouse or parent, the person can waive the 3 and 10 year bars. It used to be that to get the waiver, the applicant must leave the United States and apply for the waiver at the consulate where he was applying for the immigrant visa. Adjudicating the waiver would take a year or more and the person just had to wait in Mexico. Then President Obama, in an amazing gesture to people trapped in this Catch 22 (you cannot get your green card here, but if you leave you cannot come back for 10 years unless you get a waiver, which will take a year to decide and if denied, you are stuck outside for several years) initiated what is called the provisional waiver program, which allows for pre-departure waiver approval. Thus, a spouse does not have to leave the United States to get the waiver. If the waiver is granted, the alien is virtually assured he or she can go abroad to a Consulate, have an interview, get a visa, and come back as a permanent resident. The virtual assurance is because USCIS will not grant a visa to a person who appears inadmissible for any reason other than the 3 or 10 year bar.

So if a waiver is granted, why make the poor soul who already spent a fortune to get to the step of having a waiver approved (Immigrant visa petition – $420; Department of State fees – $318; provisional waiver fee – $670 (not sic)), take a trip abroad to get a visa that could be issued in the United States if only the person had entered legally? Why not just parole in place the applicant with the approved waiver and let him finish up in the U.S.? What possible point is there to making the pre-waived applicant finish his processing abroad when it can be done quicker and cheaper here while freeing up the Consulates for customers who need to get into the United State and are not already there.

Three simple changes. Huge savings to aliens and to the government. Dear government, please send my check to exposing waste to my PO box.  Posted February 24, 2014.


 

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