Posted by: Floyd J Fernandez, J.D. | January 12, 2017

January 12, 2017

GOOD NEWS:

Those who have a wide array of reasons to get an extension for their Employment Authorization Document (EAD), ranging from those eligible for asylum to those applying out of an application for cancellation of removal, now have a new regulatory permission, effective Tuesday the 17th, that as long as they file before the time in which they must to get their renewals considered, they get an automatic 6-month extension of their EAD.

Instead of the likes of former Kansas Attorney General Kris Kobach, or U.S. Senator Jeff Sessions (R-Alabama), or a Congressman Stephen King (R-Iowa), Donald Trump appointed Marine General John Kelly (retired) to be Secretary of Homeland Security.  On one hand, General Kelly has been unwavering in his commitment to build the border wall of 1,100 miles that President-elect Trump has sworn to build, and to be relentless in the mass deportation of those undocumenteds and other immigrants with felony criminal convictions and those others subject to deportation under present law.  However, he has also been open to eventual clemency to non-criminal undocumenteds who have long-term presence in the country.

The appointment of Andrew Puzder as Secretary of Labor by President-elect Trump is also serving as a powerful counterweight to any efforts to shut down legal immigration, especially through the employer-sponsored route.  He has been well known for his belief that in many instances foreign workers are better workers for the American economy, especially in their potential for job creation, and in many cases, “having a better attitude,” which the dirty secret in the workplace is, often the truth.

The Administrative Appeals Office made a major decision on December 27th, allowing USCIS, and applicant employers and immigrants of high talent and skill, especially in the health care field, much greater leeway in demonstrating that their applicant hiring is eligible for a National Interest Waiver (NIW).

BAD NEWS:

The appointment of the aforementioned Sen. Jeff Sessions is particularly bad, as the Attorney-General designate, for he will have direct control over setting policy for the administration of law in both the Immigration Courts, the Board of Immigration Appeals (BIA), and the Administrative Appeals Office (AAO).  It would have a powerful effect on those who will be seeking review of old and stale cases that have been closed or that have existing orders of removal many years old.  However, the place of such as Secretary-designates Kelly and Puzder will serve an important counterweight, especially in the case of Gen. Kelly.  DHS exercises oversight over USCIS, U.S. ICE, and Border & Customs Protection (BCP), and their policies will have a significant impact of how determinations of eligibility of visa applications, asylum petitions, and especially prioritization of prosecution of deportations are made.  The effect on handling those who have filed for, or received Deferred Action permits (DACA) under the June 2012 orders given by outgoing White House occupant Barack Obama, and those affecting prosecutorial discretion beginning in August 2011, and those who benefitted from the modified domestic unlawful presence waiver (known as I-601A) established in March 2013, will be directly under Gen. Kelly, not Sen. Sessions.

However, expect Sen. Sessions to use his power to issue legal interpretations as leverage to force the other players in this game to acquiesce, and given Pres.-elect Trump’s long-time rhetoric, that prospect is not a good one.

The Justice Department just announced that in the past year over 69,000 immigration cases were prosecuted in the federal district court system, as opposed to some 63,000 prosecutions of every other kind of offense, ranging from drug prosecutions to securities violations to tax fraud to civil rights-related crimes, like the prosecution of mass-murderer Dylann Roof, who just received the death penalty in Charleston, South Carolina on Tuesday.  That action of Barack Obama, to pad his political claim of being tough on illegal immigration, has done nothing but now jam the federal courts.  That is on top of the fact that as of last month the number of cases now in immigration courts top 520,000.  These are records by mass orders of magnitude.  In 1996, the number of immigration prosecutions numbered 823, that’s it.  On September 11, 2001, the number of immigration cases was less than 100,000.

Those facts are indicative of the massive breakdown that has occurred in our immigration system, and the daunting task faced by Pres.-elect Trump as he seeks to deal with what was, even more than crime, the most emotionally-charged issue of the recently-ended presidential campaign.

SO-SO:

The February 2017 Visa Bulletin showed negligable movement for priority dates for family-based immigration, and about a range of 2 weeks-3 months forward movement for employer-sponsored applicants.

The environment is scary for both lawyers and their clients.  Mine are no exception.

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