Sundry Immigration Items - I-601A Provisional Waiver, Standalone I-130's, Second Circuit Treatment of Pending Cases, DOL on Prevailing Wage Determinations, etc.

Alan Lee, Esq.

I-601A Provisional Waiver:

In the latest news at the U.S.C.I.S. stakeholders engagement on centralized filing of I-601's on November 13, 2012, U.S.C.I.S. confirmed that the final regulation on the I-601A provisional waiver will be published within calendar year 2012. As most readers are aware, the I-601A provisional waiver will be implemented by regulation, and will not require passage of legislation by Congress, making it almost certain to become law. This Obama initiative is available to immediate relatives of U.S. citizens (parents, spouses, and children under the age of 21 and unmarried) whose only disability to adjustment of status in the U.S. is their illegal stay. While still not allowing for adjustment of status, the I-601A program would allow the above individuals to file for a waiver of the 3 or 10 year bar against return because of their illegal stay while they are here in the U.S. and before they make a final decision to go overseas for an immigrant visa interview. If the waiver is approved, they would complete their immigrant visa process by interviewing at an American consular post in their home country. Given that the waiver would be approved prior to interview, the interview would in all likelihood be routine. One may ask whether the program is still attractive given the Republican Party's recent misgivings on opposing comprehensive immigration reform (CIR) and the possible passage of legislation in the future to resolve the immigration situations of undocumented immigrants in the States. The difficulty with waiting on CIR is the uncertainty of passage, the timeline, and the final shape of the legislative package. Additionally no recent CIR proposal has contemplated putting undocumented immigrants ahead of those already in the line, with that line including siblings of U.S. citizens under the F-4 category, which is presently backlogged 11 years. The estimated time for I-601A applicants to receive permanent residence would be one-two years.

Standalone I-130 Petitions:

In August 2012, U.S.C.I.S. notified the public that some work at the four service centers would be transferred to a field office or the National Benefits Center (NBC) in order to balance the overall workload, and that I-130 immediate relative standalone cases (petitions without accompanying I-485 adjustment of status applications) were being transferred from the service centers to the NBC and then routed to an appropriate field office. People would receive notices saying that the case was transferred to NBC, but the notice would not indicate the final field location. In the October 16, 2012, American Immigration Lawyers Association (AILA)/ Chicago field office open meeting, the Chicago district said that standalone I-130 petitions were being transferred to Chicago (400 already), and some of the cases would be interviewed. Readers should be aware that this will likely be the pattern in local district offices of U.S.C.I.S., and that they are best advised to meticulously document I-130 marriage cases with evidence of bonafide relationship to avoid the parties being asked to interview.

Second Circuit Frustration with Immigration Cases:

In Si. v. Holder, the Second Circuit Court of Appeals decided on October 16, 2012, to stop wasting its time with immigration appeal cases because it perceived that in some cases both petitioner and the government were asking for joint stipulations to remand the cases to the Board of Immigration Appeals (BIA) for administrative closure and that the Court was just giving advisory opinions in many cases since Si was one of more than a thousand cases that were actually or potentially subject to future decision by the government as to whether it would or could remove the petitioners if their petitions were denied. The Court therefore gave a 90 day period for the parties in pending immigration cases to determine whether remand was appropriate and said that at any time during the tolling period, either party could resume the appellate process by filing with the Clerk of Court a letter to that effect with service upon the adversary; and that at any time prior to the end of the tolling period, a petitioner could move under Federal Rule of Appellate Procedure 42(b) to dismiss the petition and remand it to the BIA. Where no action is done by either party, the case will resume to the next legal step in the appeal process.

Department of Labor (DOL) Inscrutable Positions on Prevailing Wage Determinations.

A prevailing wage determination from the Department of Labor is required to set the job offer wage in all PERM labor certification cases along with those involving certain non-immigrant visas. The PWD was a hot topic at the September 28, 2012, DOL stakeholders meeting.

  • There was initially a complaint not answered that with regard to the PWD FAQ published on June 21, 2012, which advised that the ETA9141 [PWD application form] include both the primary and the alternative requirements, at least one case had already received a denial since the FAQ was released, and the question was if this applied to a PWD on or before June 21st where the 9141 only contained the primary requirements. [DOL had earlier advised that only the primary requirement had to be listed such as where the employer was requiring a Masters + two years of experience as a primary or bachelor's + four years of experience as a secondary requirement].
  • Several AILA members complained of rejection of published surveys such as Towers Watson because the number of workers in the submitted surveys was less than 30, and that the November 2009 prevailing wage determination policy guideline memorandum only had the size requirement for employer conducted or custom surveys and not published surveys. The question was not answered. Also not answered was the complaint that DOL had also rejected some surveys for multistate locations such as NJ-NY-CT finding that the surveys were not sufficiently specific to the place of employment.
  • There was also an unanswered complaint that DOL continues to issue PWDs wherein it assigns an extra point for a combination of occupations in situations that do not warrant the designation. AILA cited as authority the Employment and Training Administration Prevailing Wage Determination Policy Guidance of November 2009 that where DOL determines the combination of occupations exists, the required protocol is for the wage level to stay the same, but for DOL to assign the higher of the two wages for that level, as between the two relevant occupational categories.

New I-140

The new I-140 form comes into effect for any petition filed after December 30, 2012. No other editions will be accepted. A word to the wise would be to start using the new form now for new I-140 petitions, and where practitioners are using current or old versions of the form, they should remind themselves to get them back from the employer in time to file by December 30th.

Conditional permanent resident applying for new green card through second marriage

  • In the 9/12/12 AILA Central Florida/Tampa field office liaison meeting, there was much complaint that U.S.C.I.S. Tampa was taking the position that where a conditional permanent resident (CPR) receives a conditional two year green card through marriage to a U.S. citizen and does not file an I-751 application to remove the conditional basis of residence status, yet marries a second time and attempts to adjust status based upon the second marriage, he/she is not entitled to adjust unless the immigration judge terminates conditional residence status and terminates proceedings; and that Tampa Bay further did not believe that the adjustment was available just because conditional permanent residence status was terminated through failure to file an I-751. The Tampa office said that there was no further guidance at the time; that the regulations say that CPR is not terminated until a final order of removal is issued; that [INA] Section 245(c) says that the CPR cannot adjust status; and therefore until a final order is issued, a CPR cannot adjust status.
  • The question was brought up again by AILA in its meeting with U.S.C.I.S. Field Operations on October 4, 2012, where it argued that conditional residence status automatically terminates under the regulations if an I-751 petition to remove conditions is not filed within the 90 day period before the second anniversary of the CPR grant, and that the Board of Immigration Appeals in Matter of Stockwell had held that an alien whose conditional residence status has been terminated is not barred from adjusting status. U.S.C.I.S. Field Operations responded that it was not clear that Matter of Stockwell established that an immigration judge proceeding was unnecessary where U.S.C.I.S. had terminated conditional residence status, and that the alien in Stockwell sought and obtained adjustment of status only after the immigration judge had sustained the charge of deportability.
  • It unfortunately appears that given the recent answers by U.S.C.I.S. Field Operations, adjustment of status through the second marriage for a conditional residence may necessarily go through the path of the immigration court. U.S.C.I.S. should rethink its position, however, as it is not obligated to toss the cases onto overcrowded court calendars where the judges are already crying for relief and government attorneys are dealing with unwieldy amounts of petitions asking them to exercise prosecutorial discretion and close the cases. So USCIS may ask itself - what is the point?

This article © 2012 Alan Lee, Esq.

About The Author

Alan Lee, Esq. is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Director, registered in the Bar Register of Preeminent Lawyers, and on the New York Super Lawyers list. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

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