Just yesterday, The New Jersey Supreme Court just handed down a decision in the consolidated cases of Gaitan and Gouldbourne. In a very simple nutshell, the court decided that Padilla vs. Kentucky announced a new constitutional rule of law that does not apply retroactively. Once the opinion is fully digested by this writer, more information will follow. However, suffice to say, this is not a good development for individuals who were not properly advised to immigration consequences prior to pleading guilty....
Our office recently blogged about the new medical forms I-693. It is extremely important that applicants for adjustment of status remember to remind their doctors to use the new form. USCIS has already in some cases issued a Request for More Evidence because physicians are not completing the new forms. While this is not necessarily fatal to the case, it nevertheless does delay an adjustment of status application, which under normal processing can take three months (at least for a family based case in this district). This is the last thing anyone wants and can be easily avoided if applicants remind their doctors (and/or the staff) to use the new updated forms. Our office cannot necessarily tell because we are provided with the sealed envelopes.
USCIS recently came out with a bulletin warning the public that the "stateside waiver" it proposed as a new regulation last month is not yet in effect. If the provisional waiver regulations do go into effect, they will of course dramatically affect the status of thousands of people and potentially allow families to stay together. Nevertheless, it is not yet reality. In fact, USCIS explicitly instructs the public not to send an application requesting provisional waiver, as it will not process such applications until a final rule is issued and the process change becomes effective. Moreover, the public is reminded to be vigilant and be wary of "consultants" who are going around claiming that they can file the waivers and asking for payment now. Good advice. It is incumbent upon those potentially affected by this proposed regulation to keep abreast of what's going on by going to trusted, reliable sources.
Last week, one of our clients in India secured an immigrant visa through successful application of Humanitarian Reinstatement of an I-130 that had been previously denied due to the original petitioner's death. In general, an I-130 is automatically denied or cancelled when the petitioner dies. See 8 CFR 205.1(a)(3)(i)(B). The immigration law does provide for some exceptions, however. Due to the Family Sponsor Immigration Act of 2002, the I-130 may be "resurrected" or reinstated if the affected beneficiary can show compelling humanitarian reasons why the case should be allowed to continue, and there is an alternate sponsor ready to take the place of the deceased petitioner to execute the Affidavit of Support. In our particular case, we were able to demonstrate the beneficiary's very close ties to the rest of his family here and that he suffered from a host of medical problems and issues that he had hoped to address here in the US. Fortunately, USCIS agreed and now our client who--prior to passage of the 2002 Law, would have start all over again--is now here!
USCIS Director Alejandro N. Mayorkas testified two days ago before the House Committee on the Judiciary Subcommittee on Immigration Policy and Enforcement on "safeguarding the integrity of the immigration benefits adjudication process." While many believe that we still operate under a broken system--and obviously, there is always room for improvement--Director Mayorkas did point out some significant steps that USCIS has taken under his helm to increase quality assurance. Some of these measures include a notable emphasis on fraud detection. Under Director Mayorkas, the FDNS--Fraud Detection and National Security Directorate--became its own department as opposed to being an office within a department. Staff increased by approximately 25 percent and new technological programs were launched to increase fraud detection and awareness including VIBE (Valudation Instrument for Business Enterprises) and real-time reporting of bulletins. Additionally, the naturalization certificate was redesigned as well as the Employment Authorization Document. We also saw the implementation of the Secure Mail initiative, which allows USCIS to track and confirm delivery of important documents such as green cards, work permits, and travel documents. While national security will always be a priority, let's hope now that the agency focuses more on rolling out measures to increase efficiency and fairness within the adjudication process.
The new visa bulletin for March 2012 was recently released. While the numbers never move as quickly as we would like, there has been some general progress. In the family categories, category F-1 moved ahead approximately by 2 months in the general country category; category F-2A moved ahead by 1 month. In the employment categories, EB-2 for India moved ahead by approximately 4 months while EB3 moved ahead by approximately 1 month.
An interesting decision by the Board of Immigration Appeals came out last month. In Matter of U. Singh, 25 I & N Dec. 670 (BIA 2012), the Board held that a stalking offense for harassing conduct in a violation of a California law did constitute a crime of violence, and because the sentence was at least one year, was properly deemed an aggravated felony under section 101(a)(43)(F) of the INA. The penal code at issue is a California statute, but some of the concepts discussed are very important and applicable in general. Of critical importance, the Board says, is the locus of the inquiry when dealing with a crime of violence: "whether the offense, by its nature, involves a substantial risk that the perpetrator will use force in completing its commission." In this particular case, the Board felt that the act of stalking creates a substantial risk that the "stalkee" (the person being harassed) will resist and cause the perpetrator to use force either to defend him or herself or to achieve the intended harassment. The Board held that the offense by its very nature creates a substantial risk of force being used during its commission and thus could be construed as a crime of violence.
As a member of AILA (the American Immigration Lawyers Association), I have been hearing some horror stories of undocumented aliens being apprehended by ICE in municipal court after appearing for a DWI case. These incidents are not anecdotal rumors by any means: they are certainly happening, especially in South Jersey and Monmouth County. People potentially affected by this need to be aware that notwithstanding all this talk of "prosecutorial discretion," it is ICE's job to enforce and apprehend. The Office of Chief Counsel will make further determination as to whether that person ought to be in Immigration Court, but for all practical purposes, unless the ICE officer is formally trained in prosecutorial discretion or particularly sensitive to the issues, he or she may just be following orders to pick up individuals that appear to be in violation of our immigration laws. Or they may just be executing directions as part of an Operation determined from above. It would still be naive in this day and age to think that ICE will leave an undocumented alien alone because he/she is not a terrorist or "danger to society." While a DWI may certainly not be tantamount to murder, it is nevertheless perceived, whether rightly or wrongly, as a type of offense that presents a grave and serious danger to the community. People need to recognize this instead of hiding their heads in the sand and not taking any precautions. At the very least, an immigration attorney should be consulted before making an appearance in municipal court for a DWI offense in New Jersey.
Clients as well as prospective clients frequently call the office to learn the processing times for certain applications. Most of our New Jersey clients have cases pending at the Vermont Service Center. As of January 25, 2012, according to USCIS, here are some current processing timelines for some types of applications.