January 6, 2012

Below are some of my comments to news articles.

From the Daily Freeman:

“The waiver shift is the latest move by President Barack Obama to make changes to immigration policy without congressional action.”

Response: Congress created the waivers, not the President. Congress delegated to the President the authority to decide how the waivers are to be adjudicated.

“Applications for the waiver can take as long as six months to be acted upon, the official said. The new rule is expected to reduce that processing time to just days or weeks, the official added.”

Response: Six months is the goal for USCIS to adjudicate the waiver from the time it receives the case from the consulate to the time USCIS sends it back to the consulate. Even though six months is the goal, the process typically takes closer to a year in many locations, and can take eighteen months or more. When the new rule is implemented, no attorney expects the cases will be processed in days or weeks and there is nothing in the announcement that suggests it would be. We presume processing times will not be significantly changed.

From the Los Angeles Times:

“The Obama administration will announce Friday a proposed new regulation that would allow certain undocumented immigrants to remain in America while applying for legal status-“

Response: Nothing in the proposal indicates that applicants will have any immunity from removal while the waiver is pending or that they will be given any kind of documentation that will allow them to work or apply for a social security number while the waiver is pending. Until we hear more details on this, attorneys are presuming that the procedure in this regard will be similar to filing an I-130 in advance of departure. A pending I-130, by itself, does not give the alien any lawful status while the case is pending.

From the New York Times:

“Having the waiver in hand will allow them to depart knowing that they will almost certainly be able to return, officials said. The agency is also seeking to sharply streamline the process to cut down the wait times for visas to a few weeks at most.”

Response: While these two sentences may both be true, the juxtaposition is misleading. It is not expected that waivers will be adjudicated within a few weeks. There may be some other aspect of the process that the government seeks to reduce to a few weeks. But this is a multi-step process and the government could have been referring to any single step in the process.