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THE WHITE HOUSE AND CONGRESS TAKE THE WRONG
DIRECTION
Congress is poised to pass and the White House to sign, the Emergency
Supplemental Appropriations bill (H.R. 1268) that would support the military
efforts in Iraq and Afghanistan and tsunami relief efforts. Sadly, the White
House and Republican leadership compromised the integrity of that important
measure by attaching to it the highly controversial, ill-conceived,
divisive, and anti-immigrant REAL ID Act (H.R. 418). This measure has
generated well-deserved opposition from more than 650 religious, ethnic,
privacy, libertarian, immigration and conservative groups, as well as
representatives of state and local governments.
Once enacted, the REAL ID Act will have numerous negative consequences,
including: making it extremely difficult for people fleeing persecution to
obtain refuge in the United States; suspending the Great Writ of habeas
corpus for the first time since the Civil War; increasing the number of
uninsured, unlicensed drivers on our roadways; severely limiting the
critical law enforcement utility of Department of Motor Vehicle databases;
imposing impossible and unfounded mandates on the states; undermining our
fundamental commitment to free speech and association; and waiving all laws
related to construction of fences at our borders, thereby granting
unprecedented, and unnecessary, authority to the Department of Homeland
Security.
Along with being fatally flawed substantively, this bill gives Congress a
black mark procedurally. Because Congress held no hearings or meaningful
debate and it was amended to a must-pass spending bill, the REAL ID did not
receive the scrutiny necessary for most measures, and most certainly not the
level required for a measure of this importance and impact. Consistent with
the lack of debate and discussion, conference negotiations also were held
behind closed doors, with Democrats prevented from participating.
Proponents of the REAL ID Act have cloaked this measure in the rhetoric of
enhanced security and/or of controlling illegal immigration. Nothing could
be further from the truth. In fact, this measure will not make us safer.
Rather, it offers a dangerous detour that will accomplish nothing in terms
of safety, and diverts us from the task of enacting comprehensive
immigration reform which the American voters strongly support.
THE EFFECT OF SEPARATION/DIVORCE ON FORM I-751 (PETITON TO REMOVE CONDITION
ON RESIDENCE
If the petitioner and beneficiary are divorced at the time the I-751 should
be filed, the beneficiary should file the I-751 (only s/he needs to sign)
and mark “d” in Part 2 of the form.
If the petitioner and beneficiary filed an I-751 petition jointly, but: (a)
separate before a decision is made on the I-751, the beneficiary should
notify the NSC that he/she is currently separated by mailing the explanation
to the NSC at PO Box 82521, Lincoln, NE 68501-2521; (b) get divorced while
the I-751 petition is pending, the beneficiary should notify the NSC that
he/she is divorced, and submit a copy of the divorce decree to the NSC at PO
Box 82521, Lincoln, NE 68501-2521.
If the petitioner and beneficiary are separated or have initiated divorce
proceedings at the time the I-751 is due to be filed, the petitioner and
beneficiary may still file a joint petition if the petitioner is willing to
sign the petition.
If the petitioner is not willing to sign a joint petition, the beneficiary
is not eligible to file a petition requesting a waiver of the joint filing
requirement due to divorce until the divorce is final UNLESS abuse is the
basis for such a filing. The alien’s status may be terminated because s/he
has been unable to file a timely I-751 and s/he may be placed in removal
proceedings.
Petitioners and beneficiaries are reminded that required supporting
documentation must accompany all petitions.
EXIT CONTROL CONTINUES AT ATLANTA AND PHILADEPHIA INTERNATIONAL AIRPORTS
US-Visit entry control procedures that involve the fingerprinting and
photographing of arriving aliens are already in place at 115 international
airports, 15 seaports, and at Secondary Inspection at the 50 busiest land
Ports of Entry. Those who manage to get through Primary Inspection at land
borders avoid the biometrics. Lack of hard data on departing aliens,
however, continues to constrain U.S. security efforts.
Traditionally, everyone has been free to leave the U.S. without
documentation or challenge, unlike procedures in place at most other
countries in the world. The addition of Atlanta and Philadelphia bring to
end the list of U.S international airports experimenting with departure
control, now including: Baltimore/Washington, Chicago O’Hare, Denver,
Dallas/Fort Worth, Newark, San Juan, San Francisco and Detroit.
Because of the enormous cost involved in retrofitting U.S. airports for
international exit control - coupled with the inevitable hassle and delay -
the travel industry vigorously opposed departure control in the pre-9/11
environment. The old system involves voluntary surrender of the I-94
Arrival/Departure card to airline personnel at check-in. Inspectors have
found that interrogation of arriving passengers, close inspection of their
passports, and search of their baggage are more fruitful sources of
departure information that consulting their own woefully inadequate Non
Immigrant Information System (NIIS). But even after 9/11, imposition of
security-critical departure control has proceeded gingerly.
The current exit control pilot program involves two levels of security:
universal check-out via an unmanned kiosk, followed by selected, supervised
verification just before boarding at the gate. The kiosk reads the travel
document and takes index fingerprints and a photograph, producing a
check-out receipt. Departure gate verification requires presentation of the
receipt to an attendant, who verifies identity via a single fingerprint,
then permits or denies boarding.
PASSPORTS TO BE REQUIRED OF CANADIANS AND AMERICANS
ENTERING THE U.S.
Another major loophole in U.S. security efforts is the ability of Canadians
and Americans to enter the U.S. without passports. Over one million
individuals enter the U.S. daily. Those claiming to be citizens of these two
countries have traditionally flowed across the borders with Canada and
Mexico by showing a drivers license, or in many cases, simply a birth
certificate with no photograph. In order to tighten security, Congress has
required that all such entering Canadians and Americans be required to
present passports for admission by January 1, 2008.
The Department of Homeland Security and the Department of State have
announced a three-phase Western Hemisphere Travel Initiative. By the end of
this year - December 31, 2005 - all travelers by air or sea from the
Carribean and Central and South America will be required to present their
passports upon arrival. This requirement will be expanded to air and sea
travel from Canada and Mexico by the end of 2006, encompassing the entire
Western Hemisphere. The more difficult challenge of securing U.S. land
borders with Canada and Mexico - which have the largest volume - will be
completed in the final run-up to 2008.
The Border Crossing Card currently issued to Mexicans will continue to be
accepted. Along the southern border, a frequent-crosser card named SENTRI
will be promoted to non-Mexicans. Along the northern border, a card named
NEXUS has been launched. Commercial truck drivers along both borders will be
encouraged to enroll in the FAST card program. All programs involve
background checks and biometric identifiers.
Approximately 60 million Americans currently hold U.S. passports, with
almost 9 million issued last year. New U.S. passports will contain a 64 KB
radio-frequency identification device (RFID) chip, which will emit
information about the holder - including a digitized photograph - over short
distances. Concerns have been raised that the chips will act as homing
devices for high-tech muggers, identity thieves and even terrorists.
WHAT DOES BILL GATES THINK ABOUT H-1B IMMIGRATION ISSUES?
Bill Gates recently expressed himself very clearly…
He didn’t shock anyone, according to the Wall Street Journal, when he
publicly said that companies like Microsoft have difficulty finding enough
qualified Americans to hire. He also said that immigration policies are
threatening U.S. competitiveness like never before. When asked how he would
change current law, Mr. Gates replied: “I’d certainly get rid of the H-1B
visa caps. That’s one of the easiest decisions.”
IMMIGRANT PLEAS CRUSHING FEDERAL APPELLAE COURTS
As caseloads skyrocket, judges blame the work done by the Board of
Immigration Appeals.
Immigrants fighting to stay in the United States are flooding the federal
appellate courts with cases, creating huge backlogs and fundamentally
changing the character of the second-highest courts in the nation.
The deluge reflects growing dissatisfaction with the nation’s immigration
courts, and attorneys representing asylum-seekers and others say they have
little choice but to appeal to the federal judiciary.
The trend is nationwide, federal records show, but bearing the brunt of this
sudden surge is the San Francisco-based U.S. 9th Circuit Court of Appeals.
In the year ending June 30, 2001, the Immigration caseload was 965. It
skyrocketed to 4,835 cases in the year ending in June 2004.
“Three years ago, immigration cases were 8 % of our calendar,” said 9th
Circuit Judge Michael Daly Hawkins. “Today, as we speak, that percentage is
48%”.
The 9th Circuit is the nation’s largest federal appellate court and has long
had a liberal reputation, but its immigration caseload is largely driven by
the region it serves: California, eight other states and two territories.
The court’s 24 judges consider myriad cases that must now compete with the
ever-growing immigration backlog.
“There are only so many judges available to hear and decide cases”, said the
9th Circuit clerk Cathy Catterson, adding that appellate cases used to take
about six months to complete; now they can take about nine months.
“We feel overloaded by this problem,” said Dorothy Nielsen, another 9th
Circuit judge. “It’s just extraordinary. I’ve been on the court for 25
years, but I’ve never seen a rush ….overwhelming us like this. Frankly, the
immigration system needs to be reformed.”
The cases inundating the circuit courts are coming from the Board of
Immigration Appeals, a quasi-judicial body appointed by the U.S. attorney
general.
The mounting workload has prompted federal judges to criticize the BIA’s
work in uncharacteristically blunt terms.
“The BIA’s decision was nonsensical,” a 9th Circuit panel wrote in March of
an asylum case. “Not only was the BIA’s opinion an example of sloppy
adjudication, it contravened considerable precedent.”
Many people caught entering the country illegally never appear in the
nation’s 53 immigration courts, which primarily deal with those hoping to
obtain asylum or avoid deportation.
In those courts asylum seekers testify about persecution they suffered in
their home countries, hoping a judge will allow them to stay here. Other
immigrants fight to remain in the United States after a criminal conviction
makes them eligible for possible deportation.
Still others petition immigration courts to change their residency status
from temporary to permanent. Petitioners who disagree with an immigration
judge’s ruling may appeal to the Virginia-based BIA.
The sharp rise in BIA decisions being appealed to the circuit courts has
been triggered by several factors:
Overall immigration is up,
increasing the pool of potential petitioners. According to an analysis of
census figures by the Washington-based Center for Immigration Studies, the
immigrant population, both legal and illegal, reached more than 34 million
in March 2004 - an increase of 4.3 million just since 2000.
Tougher enforcement of immigration
laws has also funneled more cases into the system.
The BIA’s duties were curtailed and
its size halved, from 23 to 11 members, as a cost-saving measure in 2002.
HHS SETS 2005 POVERTY GUIDELINES
In February 2005, the Department of Health and Human Services published in
the Federal Register its poverty guidelines for 2005, to account for the
last calendar year’s increase in prices as measured by the Consumer Price
Index. The new guidelines became effective upon publication, i.e. on
February 18, 2005.
Under INA § 213A, an alien seeking an immigrant visa or adjustment of status
on a family-based petition is inadmissible unless the person petitioning for
the alien’s admission, including any required additional sponsor, has
executed a legally-binding affidavit of support for the alien beneficiary.
In addition to the affidavit of support filed on Form I-864, the sponsor
must submit documentation demonstrating the means to maintain an income of a
least 125 percent of the federal poverty guidelines. Sponsors on active duty
in the Armed Forces who are petitioning for their spouse or child need only
demonstrate an ability to maintain an income of at least 100 percent of the
poverty level. The required annual income is to be calculated according to
the size of the sponsor’s household. The sponsor must meet the 125 percent
requirement at the time that the immigrant visa or adjustment of status
application is made.
To determine whether the sponsor’s income meets the 125% requirement, the
federal poverty guidelines are established by the HHS for three separate
units: (1) the 48 contiguous states; (2) Alaska; and (3) Hawaii. The
guidelines set a basic dollar figure as the poverty level for a single
person, and then provide a dollar figure increment for each additional
member of a person’s household. The 2005 guidelines set the poverty level
for the 48 contiguous states at $9,570 for one person (an increase of $260
over last year’s total of $9,310), with $3,260 for each additional person
(an increase of $80 over last year’s total). Thus, to meet the 125 percent
requirement, the sponsor would need an income of $11,963 for one person and
$4,075 for each additional household member.
To illustrate, if the sponsor has a wife and two children and is sponsoring
his sister, the family size is five for purposes of calculating the minimum
income requirement. Under the current federal guidelines, if the sponsor is
living in one of the 48 contiguous states, he or she must demonstrate an
income in excess of $28,263. If the sister has a husband and child who are
accompanying her, the family size increases to seven, and the minimum income
increases to $36,413.
The poverty levels for Alaska and Hawaii are substantially higher than those
for the contiguous states. A complete listing of figures showing 125% for
each level of the guidelines is included in the following table:
|
2005 Federal Poverty
Income Guidelines |
|
|
100% of Poverty Line |
|
125% of Poverty Line |
|
FAMILY
UNIT SIZE |
48 CONTIGUOUS STATES &
D.C. |
ALASKA |
HAWAII |
|
48 CONTIGUOUS STATES &
D.C. |
ALASKA |
HAWAII |
|
1 |
$ 9,570 |
$11,950 |
$11,010 |
|
$11,963 |
$14,938 |
$13,763 |
|
2 |
12,830 |
16,030 |
14,760 |
|
16,038 |
20,038 |
18,450 |
|
3 |
16,090 |
20,110 |
18,510 |
|
20,113 |
25,138 |
23,138 |
|
4 |
19,350 |
24,190 |
22,260 |
|
24,188 |
30,238 |
27,825 |
|
5 |
22,610 |
28,270 |
26,010 |
|
28,263 |
35,338 |
32,513 |
|
6 |
25,870 |
32,350 |
29,760 |
|
32,338 |
40,438 |
37,200 |
|
7 |
29,130 |
36,430 |
33,510 |
|
36,413 |
45,538 |
41,888 |
|
8 |
32,390 |
40,510 |
37,260 |
|
40,488 |
50,638 |
46,575 |
|
For each additional family
member, add |
|
|
3,260 |
4,080 |
3,750 |
|
4,075 |
5,100 |
4,688 |
|
70 Fed. Reg. 8373–75
(Feb.
18, 2005). |
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