An interesting case out of the Seventh Circuit came out last week that may be of interest to those undocumented immigrants who may have or who are currently using false or fake social security numbers. The decision, Arias v. Lynch, concerns whether Ms. Arias, who is currently in removal proceedings, is deportable on the basis of her conviction for using a fake social security number to work. In more technical terms, the issue is whether this crime, found in 42 U.S.C. 408(a)(7)(B) constitutes a Crime Involving Moral Turpitude ("CIMT") which would not only pose a ground of deportability but also prevent her from applying for cancellation of removal. Although this case is from a different jurisdiction, the Court's analysis of the issue is quite insightful and trenchant in exposing the arbitrary nature of CIMTs and how even educated attorneys and judges can make critical errors that directly impact the lives of people who have lived here for decades.
One of the most frustrating aspects of immigration practice is dealing with government delay-something which, more often than not, is a given these days. Family adjustment of status cases used to relatively quick, but we have noticed a significant lag in processing times recently. For all practical purposes, most people will have to patiently endure the wait until their case is adjudicated. Fortunately, the regulations do provide some interim relief in the way of work authorization: many adjustment applicants may apply for an employment authorization document ("EAD") on Form I-765 that will allow them to work legally and apply for social security numbers while their cases are pending. What happens, though, if the work permit application itself is taking an excessively long time to process? One of the most common questions we get is whether there is any way to speed up the process.
In nearly all family based immigration cases, the petitioner must execute an I-864 Affidavit of Support form. The "affidavit" is essentially a contract between the sponsor and the US government that the sponsor has sufficient income to maintain the intending immigrant at 125 percent of the Federal Poverty Guideline (new guidelines are released annually). As has been mentioned before in various articles devoted to this topic, this is a very serious obligation that continues even if the parties in a marriage based scenario divorce. One subject which does not receive as much attention, but which is equally important though, is how a sponsor can fulfill his/her obligations if he or she does not meet the financial threshold to sponsor the intending immigrant.
Although not precedential, a very important decision regarding athletic extraordinary ability cases was recently issued that may provide further guidance to athletes making a career transition from competitor to coach. The case was decided by the Administrative Appeals Office of USCIS and titled Matter of K-S-Y. In the appeal, the petitioner was a judo expert seeking approval of an employment-based application (EB-1) as an individual of extraordinary ability. The Texas Service Center denied the I-140 petition, concluding that the petitioner had not submitted sufficient proof of his ability. On appeal, the petitioner contended that USCIS erred in not finding the evidence satisfactory. The AAU reversed and found for the Petitioner.
Late last week, USCIS published a final rule incorporating proposed changes from July of last year to the I-601A process. Many of proposed changes are now final and will become effective August 29, 2016. Of the many changes, the most significant are that the class of eligible applicants has been opened up to all individuals who are statutorily eligible for the unlawful presence waiver, not just immediate relatives of US Citizens. This means that immigrants in other preference based categories-family and employment-may now potentially apply for the I601A. Secondly, up until now, the provisional waiver was limited to immediate relatives who could demonstrate extreme hardship to a US Citizen spouse or parent. Under the new rule, extreme hardship may now be shown to a US Citizen or Lawful Permanent Resident spouse or parent. Another change worth noting is that USCIS will no longer deny I-601A applications based on a "reason to believe" that the applicant may be inadmissible on other grounds, although, of course, it retains the right to deny cases as a matter of discretion. There are also some important technical changes pertaining to individuals with final orders of removal, exclusion, or deportation. How these changes will play out practically remains to be seen once implementation starts. Nevertheless, given the current state of immigration affairs and dwindling hope of immigration reform, these measures may open up alternative avenues of relief to thousands of immigrants currently in limbo due to the unlawful presence bar.