Category Archives: Facts

Asylum Schedule

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USCIS Asylum Schedule Released

USCIS has released its scheduling priority dates for affirmative asylum interviews. A cursory glance reveals that the eight asylum offices are backlogged, with Los Angeles even being four years behind. At the end of 2014, the Asylum Division decided to prioritize interviews in the following order: 1) applications already scheduled for an interview but needed to be rescheduled; 2) applications filed by children; 3) all others based on the order they were received. The majority of the offices are around two years behind, meaning they are just scheduling interviews currently for applications received in the summer of 2013. The interview is the final step in the affirmative asylum process.

Attaining asylum is a pathway to permanent residence and if desired, naturalization. While the standards for asylum and refugee status are deeply steeped in international accords and UN guidelines, United States case law on the subject has helped to develop what qualifies for asylum. A foreign national who is facing persecution in her home country, either having suffered it already or fearing it in the future, may apply for asylum affirmatively in the United States. That application must be filed within a year of arrival. It is a difficult and arduous application that requires corroborating evidence and persecution based on statutorily enumerated grounds. Just living in a country with civil war, epidemics, or violence is not enough to win asylum. Each year, the president asks for a certain number of asylees and Congress approves that number (“Refugee Ceiling“). The number this year is 70,000.

The two year wait can be difficult on applicants, who can apply for employment authorization only after the application has been pending for months. The nature of the backlog may be attributed to the surge of unaccompanied minors who crossed the border in the summer of 2014, many of whom are asylum seekers. Their opportunity for asylum is prioritized, as per the scheduling bulletin. Asylum and refugee status have been in the news lately because of Syrians fleeing Syria for asylum in European countries.

 

Resources:

Modern Trends in Asylum for 2014

Universal Declaration of Human Rights (Asylum is addressed in Article 14)

The 1951 and 1967 UN Conventions on the Status of Refugees

United States Refugee Act of 1980 

Office of Refugee Resettlement

Office of the United Nations High Commissioner for Refugees

More USCIS Asylum Statistics

Refugee Council Statistics

Immigration Polling

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Recent Poll Shows Immigration a Top Priority

 

Immigration as an overarching broad issue has become a centerpiece of presidential candidates vying for their parties’ nominations. Different immigration plans and statements have been bandied about over the past few months. The focus on immigration seems to be well warranted, not only from a policy-based perspective, but also from a practical voter-based perspective. After all, an election is about convincing the most number of voters to vote for you, both in the primary and in the general election.

New polling information conducted by Gallup indicates that focusing on immigration is crucial for garnering votes. The polling information shows that 20% of US voters will ONLY vote for a candidate who shares their views on immigration. Another 60% of US voters have indicated that immigration as a general topic will be one of their important considerations in deciding on a candidate.

The groups of voters who consider immigration higher among their concerns are Republican registered voters, first- or second-generation immigrants, and Hispanics. Immigration as an electoral concern can mean a million different things. It can encompass H-1B visas, increasing employment immigration, ensuring more border security, integrating immigrants into the United States, etc. One manifestation of immigration this primary election cycle has been the issue of birthright citizenship. The United States is exceptional in providing birthright citizenship through the 14th Amendment (being born in the United States confers United States citizenship, regardless of who the parents are). The elimination of birthright citizenship as a way of dealing with undocumented migrants has received more attention than usual.

These kinds of polls are a mainstay in electoral politics and similar polls will likely be released weekly in the lead up to the primaries early next year and into the general election. The nation’s pulse is on immigration in way that could affect the election. Whether that leads to actual legislative or policy changes remains to be seen. Immigration has been an important issue in the 2004, 2008, and 2012 general elections, but the DREAM Act has remained a legislative proposal and nothing more since 2001.

Legal Representation for Asylum

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Difficulties for Women and Children in Finding Legal Representation for Asylum Cases

 

The Chicago Reporter posted a story yesterday on the obstacle that asylum seekers in Chicago face in findings lawyers. There are immigration courts in cities across the United States, including Chicago. The Chicago Immigration Court has seen nearly 1,500 cases of women with children in the past year and only 14% are represented by lawyers. According to TRAC at Syracuse University, that is less than half of the national average. TRAC’s data also reports that women and children who have an attorney representing them in their asylum cases are sixteen times more likely to be allowed to remain in the United States.

 

There are many issues that contribute to this current state. Whereas the Sixth Amendment of the United States Constitution guarantees that a defendant standing trial in criminal court is entitled to competent representation, the same protections do not exist in Immigration Court. The Due Process Clause of the Fifth Amendment does not carry the same robust guarantees. Chicago’s Immigration Court alone has 450,000 cases pending. We blogged this week that Immigration Court is facing its worst backlog in history. One judge in Chicago is assigned to each case involving unaccompanied children and women with children. An immigration judge in San Francisco believes that attorneys are important to resolving the crisis because representation “helps judges make the decisions they need with the information they need, and to work through those cases both more quickly and more fairly.”

 

Asylum can be a difficult legal standard for a seeker to meet, especially for individuals from certain countries with certain claims (gang-related claims from Central America require an exceptional angle). They can be notoriously difficult to prove with evidence and credibility needs to be established. It is also a discretionary form of relief, meaning that meeting the standard for it is not enough to merit a favorable decision.

Immigration Court Backlog

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Immigration Court Backlog Worsens

 

One of the major news stories of last summer was the unforeseen increase in the number of unaccompanied children who crossed the American border. It was a humanitarian crisis (President Obama’s phrase) by itself, but it also had practical ramifications for immigration court. It swelled the number of individuals facing trial in immigration court and increased the already present backlog.

Immigration Court is facing its highest caseload in its history. At the conclusion of April 2015, there are 445,607 cases pending before the Immigration Courts. That represents a 9.2% increase from the beginning of the 2015 Fiscal Year and an astounding 29.5% increase from the beginning of the 2014 Fiscal Year. The Executive Office of Immigration Review is part of the Department of Justice and an Article I Court (executive branch of government). The unaccompanied children are a small part, however, of the overall immigration court backlog.

Please note that EOIR, Immigration and Customs Enforcement, and Department of Homeland Security are separate from USCIS, which grants immigration and nonimmigration benefits for individuals not in removal proceedings.

The four most represented nationalities in Immigration Court at the moment are Mexico, El Salvador, Honduras, and Guatemala. This is probably explained by their proximity and the current country conditions. China is the fifth most represented nationality. The states with the most individuals in removal proceedings are California, Texas, New York, Florida, and New Jersey. These are among the most populous states in the Union and also the states that have the most immigrants and visitors overall.

 

Thank you to the Transactional Records Access Clearinghouse at Syracuse University for the statistics. It provides comprehensive, independent, and nonpartisan information about US federal immigration enforcement.

National Interest Waiver

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EB-2: National Interest Waiver

The National Interest Waiver is an important method of petitioning for a Green Card through the Employment-Based 2 category, which allows for 28.6% of employment-based green cards. For the United States as a whole, it is an acknowledgement that there are many foreign individuals in various fields who are exceptional and can benefit the United States by becoming Americans. It is an attractive option for individuals of “exceptional ability” and with advanced degrees (this is a requirement). The advanced degree can be from a non-US university.

The other attractive facet of a National Interest Waiver is that an employer is not required to be the sponsor. There is no requirement of a time-consuming labor certification and no requirement that the employer be involved. In fact, a job offer is not even mandatory, which is the way much of employment immigration operates.

This can be a difficult standard to meet, especially because of the national interest requirement. There are three criteria: substantial intrinsic merit, national in scope, and serving the national interest to a substantially greater degree than a US worker with the same minimum qualifications. That means the national interest would be adversely affected if the labor certification process were required.

A profession can be considered to have substantial intrinsic merit, but the adjudicator can have a stringent view of whether the employment is “national” in scope. This can create a problem for a school teacher whose students are located in one city or for a civil engineer whose bridges are located in one state. The professions eligible for a national interest waiver are not defined by statute, so there is opportunity to argue for a wide swath of occupations. Engineers, doctors, scientific researchers,

If eligible, an application for permanent residence can be filed concurrently with the National Interest Waiver. Other options can be petitioned for simultaneously with the National Interest Waiver or while it is pending. You should consult with an immigration attorney carefully to map out prudent options that serve your needs. These can be tricky cases, but they are among our favorites.