The Immigration-Abandonment Ploy -- Fallout from a Fiddling Congress and Bickering Allies

Food Chopper.jpgThe times they are a-mournin' for proponents of immigrant rights and immigration reform. While Pope Francis shows the world how to love by embracing and praying with a tumor-scarred man, immigrants-rights activists and immigration-reform pragmatists are at war among themselves over tactics in the battle to achieve just solutions to our nation's dysfunctional immigration problems. They who should be allies hurl vitriol and worse at one another, as Republicans in the House and outside the chamber say that even piecemeal solutions won't occur before the current session ends, but may surface in 14 months.

Meanwhile, as the House fiddles and change-agents fuss, the "Great Chopper" that is America's immigration bureaucracy continues to disaggregate lives, businesses and dreams, turning them into mourning mush. No, I'm not talking about the immigration-prison/deportation industrial complex which whirs at grotesquely efficient and fevered speeds -- that topic is grist for another post.

Rather, today's blog riffs on the theme of immigration inanity played out in my last post and in several others ("Immigration Good Behavior -- a Riddle Riddled with Riddles," "Immigration Absurdity: You Can Work Here But You Can't Be Here," and "Immigration Indifference - The Adjudicator's Curse"). 

Today's asininity is all about abandonment, an immigration-agency notion confected, mostly without stakeholder input, by work-shirking bureaucrats rather than through the orderly, judicially-envisioned modus operandi of enacted legislation and promulgated regulations.  

Immigration abandonment holds that a foreign entrant who applies to extend or change nonimmigrant visa status in the U.S., and who has paid almost 300 bucks in filing fees just to make the ask, will not receive a decision on the merits but instead be peremptorily denied if s/he leaves the U.S. before an often dilatory adjudicator gets around to considering the application.

Immigration abandonment also plays out in the process of applying for a green card. Although the latter form of short-changing is moistened with the sprinkled holy water of an actual agency regulation (8 CFR § 245.2(a)(4)(ii)(A)-(D)), an adjustment of status applicant -- like his nonimmigrant cousin -- is still treated as having relinquished the desire to become a permanent resident if s/he leaves the U.S., however temporarily, without special dispensation,  notwithstanding that the departing individual has no desire to forswear permanent residence and despite the payment of up to $2,070 in application fees. 

In the case of the green card applicant, immigration abandonment can lead -- at best -- to delay and squandered filing fees, and -- at worst -- to ineligibility.  The immigrant visa quota  may have closed or retrogressed in the interim, thereby precluding immediate reapplication for adjustment of status.  Or, the factual basis or legal grounds to adjust status may no longer exist; the American Dream of permanent U.S. residence and ultimately citizenship thus evaporating into the ether created by work-avoidant immigration officials.  

The consequences may be equally or more tragic in the nonimmigrant context whenever a temporary entrant seeks to extend/change visa status in the United States but needs to depart the U.S. while the application is pending.  To understand why, the reader must first consider the supposed rationale and contorted logic served up by U.S. Citizenship and Immigration Services (USCIS) in this typical formulation:

Notice of Decision - Abandonment.PNGThe astute reader will have noted some whopping non sequiturs in the USCIS's explanation.  Submission of either a timely request to extend/change status or an untimely request caused by extraordinary circumstances beyond the applicant's control (as permitted by regulation) is a reflection of behavior demonstrating a desire and intent to play by, rather than flout, the rules. Moreover, departing the U.S. need not necessarily be construed as a failure to maintain the "previously accorded nonimmigrant status."  It may signify nothing more or less than a departure from the country.

What the USCIS's immigration-abandonment ploy really reveals is an agency's acceptance of money under false pretenses in return for a promised service (the adjudication of a request for an immigration benefit) that is never delivered.  Some would call that fraud.  It is worse than fraud, however, because it also involves a waste of government resources and the utter disregard of a very relevant statute.

The statute is Immigration and Nationality Act § 212(a)(9)(B)(iv) [8 U.S. Code §1182(a)(9)(B)(iv)].  This law allows a law-abiding foreign citizen to avoid temporarily the imposition of the penalties of visa voidance and the three- and ten-year bars to reentry for his or her "unlawful presence (UP)" in the United States.  

UP arises when an individual stays in the country longer than officially permitted, as specified in a government document containing a date-certain deadline imposed by the Attorney General or his statutory successor, the Secretary of Homeland Security.  This statutory postponement or "tolling" of any period of UP is allowed in the following situation:   

Tolling for good cause.--

In the case of an alien who--

has been lawfully admitted or paroled into the United States,

has filed a nonfrivolous application for a change or extension of status before the date of expiration of the period of stay authorized by the Attorney General [or Secretary of Homeland Security], and

has not been employed without authorization in the United States before or during the pendency of such application,

[then] the calculation of the period of [UP] time specified . . .  shall be tolled during the pendency of such application, but not to exceed 120 days.

When USCIS takes money without providing a decision on the merits of the change or extension of status application, then a consular officer deciding whether to issue or refuse a nonimmigrant or immigrant visa must do what the USCIS adjudicator failed to do.  The consular officer must determine whether the change/extension of status application was in fact "nonfrivolous" in order for UP to be tolled.  

The failure of one officer to do his or her duty thus engenders government waste when another officer in a different department must deploy scarce resources and review the application (for no additional fee).  Had the USCIS not relied on the immigration-abandonment notion as a way to shirk work, and had the adjudicator approved the application, the approval would essentially confirm that the application to extend or change status was indeed "nonfrivolous," as that term is defined:  

To be considered nonfrivolous, the application must have an arguable basis in law and fact and must not have been filed for an improper purpose (e.g., as a groundless excuse for the applicant to remain in the U.S. to engage in activities incompatible with his/her status). To find an application nonfrivolous, it is not necessary to determine that the INS [USCIS] would have ultimately ruled in favor of the alien.

9 Department of State Foreign Affairs Manual § 40.92 N5 “Tolling” for Good Cause 

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So, no matter whether Congress dithers and dallies, and reformers on the left bicker and bite, the USCIS -- the adjudicative arm of the Great Chopper -- must be retooled.   The agency must do its job and decide applications for which fees have been fully paid on their merits. USCIS must abandon immigration abandonment.