The War On Immigrants Is Fought Even In The Most Routine Immigration Applications
Nowadays I don't think there is a person in the United States who isn't aware that the Trump Administration is implacably opposed to immigrants entering this country, especially from our southern border. A statement from the President's southern border wall "emergency" proclamation on February 15, 2019 makes it crystal clear. The following sentence gives the game away:
In particular, recent years have seen sharp increases in the number of family units entering and seeking entry to the United States and an inability to provide detention space for many of these aliens while their removal proceedings are pending. If not detained, such aliens are often released into the country and are often difficult to remove from the United States because they fail to appear for hearings, do not comply with orders of removal, or are otherwise difficult to locate.
It doesn't matter to the President that these families are seeking asylum in a way fully consistent with existing law. It doesn't matter that many of the so-called facts in the president's claim simply not true, especially regarding immigrants not showing up for their court hearings. The mere fact of they are present in the United States while their cases are being heard is anathema to this Administration.
Not It's important to note that we are not talking here about the "criminals, gang members, and [traffickers in] illicit narcotics," whom the President referred to in his speech. We're talking about simple people who come to the United States to preserve their lives, because their own governments are unwilling or unable to protect them.
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However, the Administration's public hostility towards immigrants is not limited solely to the so-called "border crisis." The Trump administration is doing everything in its power to make it as difficult as possible, even for immigrants lawfully present in the United States, to secure the basic documentation allowing them to live and work here. The battle is fought every day in offices like mine.
I-751s
In the last month, I've been heavily involved in two types of such cases. The first concerns foreign citizens who have married US citizens and have obtained a so-called "conditional green card." Such permanent resident cards are issued to immigrants who were married less than two years at the time their green cards awarded. For such immigrants, it is necessary within 90 days of the second anniversary of the date on the conditional permanent resident card to file a so-called "petition to remove conditions" or I-751, to have their permanent resident status confirmed and to obtain a 10-year green card.
Obtaining the filing receipt for an I-751 is especially important to the immigrant because it states that the immigrant continues to be a conditional permanent resident for up to 18 months after the filing of the I-751. The physical receipt is very important because the original green card expires on the second anniversary of its grant, so the two documents together are necessary to show lawful presence in the United States.
In the past, USCIS was very good about issuing receipts for these petitions. One could expect them within a week to 10 days after filing, so that even if the immigrant filed near the end of the 90-day filing envelope it would only be a matter of days before they had proof of their continuing status in their hands.
This is no longer the case. Now, it's almost impossible to say when the I-751 will be received, if at all. I have had cases stretch on for weeks despite numerous calls to the agency and email communications asking that the receipts be issued. In my most recent three I-751 cases I have actually had to threaten a lawsuit against USCIS to “exoedite” the receipts. Only then did the Agency finally produce the essential proof of status to these law-abiding immigrants.
I am told that delays are due to a so-called "glitch in the system," but you will pardon me for doubting that. In all three cases, the government issued biometrics appointments in these petitions – normally the second step in an I-751 petition – rather than the first. It begs the question whether USCIS wants to stall on issuing the receipts to check whether the immigrants had committed any crimes first. (Of course, if they did, issuance of the receipts would not prevent initiation of removal proceedings!)
Federal Agencies are supposed to act within a reasonable time. Failure to do so is a violation of the Federal Administrative Procedures Act (or APA) for which the immigrant can sue USCIS for relief in a federal district court. It should be obvious that there is no way lengthy delays in issuing vital documents confirming one's legal status in the United States can be considered "reasonable." It is equally obvious that our immigration system is broken when one can only get what he or she is entitled to receive by law through threatening a lawsuit.
I-765s
There are similar problems if foreign citizen apply for temporary work authorizations on Immigration Form I-765. When this application is granted, one gets a card known as an “EAD,” for Employment Authorization Document. Under the Immigration and Nationality Act (the INA), there are many different classifications, both nonimmigrant and immigrant, in which a foreign citizen is eligible to apply for an EAD while waiting for an application or petition to be decided.
It used to be that the Agency acted fairly promptly on these applications. One could expect the EAD to be issued within three months. Now, the same applications take anywhere from 5 to 10 months for a decision, depending on the regulatory category under which one seeks an EAD.
It is cold comfort that the Agency recognizes that its slowness in processing these applications causes harm. There is regulatory guidance that says, for certain categories of work authorizations, the prior EAD is automatically extended for six months if one files for renewal before the EAD has expired.
The problem is that USCIS massively fails in issuing the renewal EADs within the six months. An applicant who doesn't take special actions to get his renewal card based on "extreme hardship" is without proof of the right to work for months. Delays and injury to immigrants are baked into the system, almost by design.
Compounding these problems has been an equally terrible reduction in a foreign citizen’s ability to ask that a decision on his application to be speeded up because of hardship. It used to be that one could schedule an "info pass appointment" at the local immigration office and discuss the problem in person with a local office. This could happen fairly quickly. Now, these options have been eliminated, and one must call a 1-800 number to request action in an emergency situation. However, speaking to a live person is increasingly difficult. The last time I tried to get through and speak to someone about a client's problem I was told by a recording that there was a high volume of calls and to call back later. Then the call was automatically terminated.
It is very hard not to see these Agency practices as a front in the Trump Administration’s war on all foreign citizens in the United States, including even those who are here legally.
Brian O'Neill,
Immigration Attorney at Brian O'Neill Law
Morristown, New Jersey
