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Brett Kavanaugh’s Record on Immigration Raises Questions

Written by Aaron Reichlin-Melnick SEPTEMBER 5, 2018 in Due Process


President Trump’s nominee to replace Justice Anthony Kennedy on the Supreme Court—D.C. Circuit Judge Brett Kavanaugh—appears in front of the Senate Judiciary Committee this week to answer questions about his judicial record and temperament.  During multiple days of hearings, senators are expected to ask him about his position on everything from abortion to gun rights, interrogating his long record of decisions and speeches. However, many of Kavanaugh’s views on immigration remain unknown.

Because the D.C. Circuit rarely hears cases directly involving immigration law, Kavanaugh has only written three opinions in cases involving immigrants. All three opinions were dissents, where Kavanaugh stated that he believed the immigrant should have lost the case. Importantly, only one of those decisions, a 2014 case involving Brazilian steak restaurant Fogo de Chao, directly involved immigration law.

In 2008, Kavanaugh issued his first major dissent in a case involving immigrants. In Agri Processing Co. Inc, v. National Labor Relations Board, Kavanaugh declared that undocumented immigrants should not be entitled to labor-law protections because they were not legally permitted to be “employees.”

Even though the Supreme Court had years before declared that undocumented immigrants were “employees” for the purposes of labor law, Kavanaugh argued that a 1986 law making it a crime to employ undocumented immigrants had implicitly overruled the Supreme Court. The majority on the D.C. Circuit called his reasoning illogical and accused him of misapplying principles of statutory interpretation.

Next, in 2014, Kavanaugh wrote a dissenting opinion in Fogo de Chao Holdings Inc. v. U.S. Department of Homeland Security. In that case, Washington, DC restaurant Fogo de Chao applied for an L-1 visa to bring a chef from Brazil to the United States. Fogo de Chao argued that the chef had “specialized knowledge” in churrascaria cooking and methods, a form of Brazilian barbecue that the restaurant is known for.

The government initially denied the chef’s visa. In overturning the denial, the D.C. Circuit criticized the government’s “wooden refusal” to consider that specialized knowledge might come from a person’s upbringing, family, and community tradition.

However, Judge Kavanaugh dissented strongly. He framed the dispute as simply about the restaurant “want[ing] to employ Brazilian chefs rather than American chefs,” and suggested that hiring such chefs was just trying to “cut labor costs masquerading as specialized knowledge.”

He strongly condemned the court’s decision, arguing that “mere economic expediency does not authorize an employer to displace American workers for foreign workers.” This quote in particular has led many anti-immigrant organizations, including Federation for American Immigration Reform (FAIR), to support his nomination.

Finally, Judge Kavanaugh dissented in the 2017 case of Garza v. Hargan, in which an undocumented teenager sued the Department of Health and Human Services Office of Refugee Resettlement for preventing her from obtaining an abortion. He accused the majority of a “radical” expansion of the law, suggesting that the D.C Circuit had created a “new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.”

Because these three dissents were all in different areas of law, his decisions against the immigrants involved don’t necessarily establish a pattern of anti-immigrant sentiment. In the next few years, the Supreme Court is likely to hear yet another challenge to DACA, as well as new challenges to Trump’s immigration executive actions and ongoing challenges to the constitutionality of mandatory detention.

As a result, as hearings continue over the next two days, senators should make sure to put him on the record about the many important immigration issues that he is likely to face.

Immigrants may be denied green cards if received benefits


The regulation could force millions of low-income families to choose between government assistance and permanent settlement in the U.S. 


The Trump administration proposed expanding its pre-election crackdown on immigration by denying green cards to legal immigrants if they have received government assistance.

Under the new rule, which the Department of Homeland Security posted online Saturday following an inquiry from POLITICO, immigrants can be denied so-called "lawful permanent residency" if they’ve received certain government benefits — or if the government anticipates that they may do so in the future.


The measure represents the latest move by White House aide Stephen Miller to reduce drastically all immigration to the U.S., both legal and illegal, and reflects his strong conviction that doing so will improve congressional Republicans' chances in the midterm elections. The benefit programs targeted include the the Supplemental Nutrition Assistance Program (food stamps), Temporary Assistance for Needy Families (welfare), Medicaid, Medicare Part D (prescription drug subsidies) and Section 8 (housing vouchers).

The regulation could force millions of low-income families to choose between government assistance and permanent settlement in the United States. Advocates fear it could ultimately restrict children's access to food and health care.

The move will mainly affect legal immigrants and their families, since undocumented immigrants are not eligible for most federal benefits.

In a departure from leaked drafts, the 447-page proposed rule won't target immigrants who've received subsidized health insurance under the Affordable Care Act or the Children's Health Insurance Program. The rule also bypasses the earned income tax credit, a refundable tax break for low- to moderate-income families.

DHS will allow a 60-day comment period once the proposed rule is published in the Federal Register. After that, the administration will incorporate feedback before it issues a final rule, a process that could take many months. Among the unresolved questions is whether to allow refusal of benefits based on participation in CHIP, which provides low-cost coverage to families that earn too much to qualify for Medicaid.


DHS Secretary Kirstjen Nielsen said in a related announcement Saturday that the proposed regulation would enforce a law intended to “promote immigrant self-sufficiency and protect finite resources by ensuring that they are not likely to become burdens on American taxpayers.”

Media reports earlier this year about the Trump administration's plans to issue the proposed rule fueled anxiety and misinformation in immigrant communities, local health providers say.

Even without a change in policy, immigrants are already turning down government subsidies to help them buy staple foods and infant formula for fear that it could bar them from receiving a green card. POLITICO reported earlier this month that local health care providers in at least 18 states saw drops of up to 20 percent in benefit enrollment — a sign that the mere threat of an immigration black mark can drive people away from government assistance.

The timing of the proposed regulation suggests that the Trump administration believes slapping severe new restrictions on immigration — even legal immigration — will help stir the GOP base into showing up at the midterm polls. Earlier this week, Secretary of State Mike Pompeo announced that the administration will admit no more than 30,000 refugees in the coming fiscal year — the lowest level in the history of the resettlement program.

Even at the height of the conservative backlash against separating migrant children from parents this spring — a decision the administration ultimately reversed — White House officials continued to view hard-line immigration tactics as a winning political message leading into November and the 2020 presidential campaign.


“The Democrats think there are no consequences for anyone entering this country illegally. They are dramatically overreaching, and all of their hysteria and hypocrisy will backfire on them spectacularly,” one White House official told POLITICO in June. “It is a giant mistake for Democrats to jettison their last possibility of a pivot to focus on pocketbook issues.”

The proposed regulation would provide a more robust enforcement mechanism for longstanding statutory boilerplate that bars immigrants "likely to become a public charge." Immigration law doesn’t define the phrase explicitly but states that age, health, family status, financial resources, education and skills should be taken into account. Guidance issued in 1999, under President Bill Clinton, further outlined that immigrants could be considered a public charge if they were “primarily dependent“ on government benefits, but narrowly defined those benefits as cash assistance or long-term, institutionalized care. This proposed rule greatly expands that definition.

Roughly 1 million people become lawful permanent residents each year — a generous allotment, according to Hans von Spakovsky, a senior fellow with the conservative Heritage Foundation.

“We can be choosy about who we allow into the country,” he said. “One of the primary factors ought to be ensuring that the legal immigrants who come in are people who can financially support themselves.”

Approximately one-third of the federal budget goes to health insurance subsidies and social safety net programs, according to the nonpartisan Center on Budget and Policy Priorities — an expenditure the Trump administration and Republicans are seeking to reduce. Most government assistance flows not to low-income people but to the disabled or elderly. A May report from the libertarian Cato Institute found immigrants generally are less likely to use public benefits than native-born Americans.


Sonya Schwartz, a senior policy attorney with the Los Angeles-based National Immigration Law Center, said the regulation will depress the number of people approved for immigrant visas and discourage the use of public benefits.

“It’s a way to cut down on people enrolled in programs, particularly kids,” she said.

Washington Gov. Jay Inslee, a Democrat, sent a letter in April to White House budget director Mick Mulvaney that questioned whether the administration adequately considered the economic effects of the proposed regulation.

A draft version of the measure published by The Washington Post in March said it “would not have a significant economic impact” — an assertion that Inslee disputed.

“Given the broad-based fear and confusion this proposal will spur,” he wrote, “it is inconceivable that the impact on federal programs would not exceed the $100 million threshold for an economically significant rule.”

The rule would apply to benefits received in the 36 months preceding an application, but only after the regulation takes effect.


Under the proposal, immigration authorities would employ three tests to determine whether a green-card applicant's receiving government benefits might classify that person as a public charge. In the case of easily monetized benefits, such as cash assistance or food stamps, an immigrant could be denied a green card if he or she received government benefits exceeding 15 percent of the federal poverty level — currently $1,821 for an individual and $3,765 for a family of four. The proposed regulation would offer a more generous cushion for immigrant families than an earlier draft that set the yearly threshold at just 3 percent of the poverty level.

In the case of harder-to-monetize benefits, such as Medicaid or public housing, the threshold would be the receipt of benefits for more than 12 months over the previous 36 months. In cases where an immigrant did not exceed the threshold of 15 percent for monetized assistance, but also used harder-to-monetize benefits, the threshold for the latter would be an aggregate nine months of use over the previous 36 months.

DHS estimates that roughly 382,000 people seeking to adjust their immigration status could be subjected to a public charge review each year.

The proposal would count food stamps toward a public charge determination, but not receipt of the Special Supplemental Nutrition Program for Women, Infants, and Children. An earlier leaked version of the proposal included WIC in its public charge determinations, which alarmed public health advocates because the program has been shown to improve infant and maternal health outcomes.


After POLITICO’s report found immigrants already dropping out of WIC out of fear that it would hurt their chances for permanent residency, Agriculture Secretary Sonny Perdue said USDA would investigate the matter.

“I would be concerned about that, obviously," Perdue said during a C-SPAN interview earlier this month. “We’ll look into that further.”

Based on the leaked draft of the plan, the nonpartisan Migration Policy Institute estimated in June that the share of noncitizens who use benefits that could trigger a “public charge” designation would skyrocket from 3 percent to 47 percent. The actual proposed rule omitted several hard-line provisions in the draft version, which means the estimated reach likely will be lower.

"The whole rule is so short-sighted and mean-spirited because we know these nutrition programs are not only incredible sources of nutrition, they improve health and well-being" that "help children learn,” said Alexandra Ashbrook, director of special projects at the Food Research and Action Center, an anti-hunger group. “They help people be productive workers."

The Kaiser Family Foundation, a San Francisco-based nonprofit organization, reviewed the draft proposal and found it “would likely increase confusion and fear among all legal immigrant families” when it came to using public programs.

More specifically, Kaiser warned of a potential decline in the number of immigrants covered by Medicaid and CHIP.

Such a drop would exacerbate disparities in health insurance rates between children with immigrant parents and those with native-born parents.

More than 8 million citizen children with an immigrant parent have Medicaid or CHIP benefits, with the highest concentrations living in California, Texas and New York, according to the Kaiser Family Foundation.


A range of activists spent months preparing for the rollout of the proposed regulation and plan to wage an opposition campaign. The public comment period is an opportunity for opponents to mount an assault on the plan.

A coalition led by the National Immigration Law Center and the D.C.-based anti-poverty Center for Law and Social Policy will push for a wide range of businesses, organizations and government officials to submit comments.

“They have to actually review every comment submitted, and they have to address it in the preamble [of the regulation],” said NILC’s Schwartz. “This administration does things a bit differently, but usually it takes a few months, at a minimum.”

The prospective regulation wouldn’t apply to all immigrants. Refugees and asylees are exempt, as are certain victims of domestic violence and children who qualify for “special immigrant juvenile status,” which is available to minors who were abused, neglected or abandoned by a parent.

Foreigners who apply for “temporary protected status” to remain in the U.S. after a natural disaster or armed conflict in their home countries will also be exempt, so long as they received a blanket waiver to absolve them of any public charge considerations.

Moreover, the Homeland Security Department will maintain discretion to waive the requirement for limited categories of visitors and immigrants to the United States.

Applicants for an immigrant visa would be invited to offer affirmative proof of financial stability if they’ve used public benefits, but the hurdle would be significant. Green-card applicants would be less likely to be penalized, for instance, if they could demonstrate financial resources or support totaling 250 percent or more of the federal poverty level — $30,350 for an individual and $62,750 for a family of four.

Under the new proposal, prospective immigrants likely to become a public charge could be required to post a bond for a minimum amount of $10,000, which would be returned upon naturalization or when an immigrant departs the United States.

The proposed rule does not apply to deportability, which would continue to be governed by precedential Justice Department decisions.

Rachana Pradhan contributed to this report.


Trump's immigrant roundups increasingly net noncriminals

ICE arrests of noncriminals increased 66 % in the first 9 months of the 2018 fiscal year over 2017

by The Associated Press / Sep.20.2018 / 10:15 AM EDT  


A daughter who never returned home, a son gunned down point-blank, a mom who was brutally attacked — all deaths at the hands of immigrants in the country illegally, all gripping stories the White House has been eager to share.

But for all the talk of murderers, rapists and other "bad hombres," those netted in President Donald Trump's crackdown on immigration are typically accused of lesser offenses, and Immigration and Customs Enforcement agents are increasingly apprehending those with no criminal records at all.

"Unshackling ICE has really allowed it to go after more individuals," said Sarah Pierce, a policy analyst with the nonpartisan Migration Policy Institute who calls the apprehension of noncriminal immigrants, in particular, "a defining characteristic of this administration's approach to immigration."

The case of Mollie Tibbetts — a 20-year-old Iowa college student authorities say was killed by a man living in the U.S. illegally — is among the latest used by Trump to advance his argument for stricter immigration controls. Yet the government's own statistics show such cases are far more likely to be the exception than the rule.

ICE arrests of noncriminals increased 66 percent in the first nine months of the 2018 fiscal year over the same period a year earlier. Arrests of convicts, meantime, rose nearly 2 percent. More noncriminals have also been deported. Among those expelled from the U.S. interior in fiscal 2017, there was a 174 percent increase from the previous year of those with no criminal convictions. Deportations of those with convictions rose nearly 13 percent over the same period.

The result is immigration courts are filling with defendants like Ruben Moroyoqui, a 45-year-old mechanic in Tucson, Arizona, whose only run-in with police came last year, his attorney said, when he was pulled over while picking up auto parts.


First, the officer asked for his license. His second question, Moroyoqui said, was "Are you here legally?" He wasn't cited for any driving violation; he was simply handed over to ICE, which began proceedings to deport him to Mexico. An appeal is pending.

Moroyoqui entered the country with authorization 16 years ago but then overstayed his visa, not wanting to return home because of the lack of opportunity there. He has four U.S. citizen children and said he has always paid his taxes. "I feel great respect and love for this country," he said.

ICE has heralded its deportations of drug kingpins, violent gang members and others accused of serious offenses, and in the 2017 fiscal year, it reported that 56 percent of all deportees it processed — from the interior U.S. and border — had been convicted of crimes. But under Trump, as with prior administrations, when a deportee does have a criminal record, it's generally for lesser infractions.

Among more than 220,000 deportees in the 2017 fiscal year, 79,270 had no convictions, according to ICE data housed by the Transactional Access Clearinghouse at Syracuse University. Of those with a record, according to the data, 1 in 4 had illegal entry or re-entry to the U.S. as their most serious offenses. Those two counts represented the first- and third-most common charges among deportees. Driving under the influence was second, followed by assault convictions and traffic offenses. Drug trafficking, burglary, domestic violence, larceny and selling marijuana rounded out the top 10 offenses.


The rest of those with a record were convicted of a wide range of misdeeds, both grave crimes like kidnapping and minor offenses including taking a joy ride, gambling or violating a fish conservation statute.

For Ariel Vences-Lopez, the charge that led him to deportation proceedings was an accusation of riding the light rail in Minneapolis last year without a ticket. After asking whether Vences-Lopez was in the country illegally, a transit officer used a Taser on him and arrested him on suspicion of fare evasion before turning him over to ICE. The charges were later dropped, but the 25-year-old roofer is still fighting his deportation back to Mexico. Proceedings have been put off until 2019.

Adriana Cerrillo, an immigrant advocate who took part in protests over the case and who has befriended Vences-Lopez, said the public should know how seldom those deported are actually accused of violent crimes.

"My mother's not a criminal. My sister's not a criminal," she said. She questions how many so-called "bad hombres" — a term Trump has used — are actually in the U.S. and urges Americans to think critically about the message being promulgated. "How do we say 'brainwashing' in a different term?"


Daniel Stein, president of the Federation for American Immigration Reform, which supports restrictive immigration measures, said focusing solely on whether those in the country illegally have committed a serious crime ignores the law and that those residents should be deported regardless of whether they have a rap sheet. His group supports restrictive immigration measures.

"Who decided that the policy of the United States was that anybody could come into the country regardless of the law as long as you didn't commit a violent felony?" he asked.

Stein said many in the country illegally likely have committed crimes — including securing employment by fraudulent means — but haven't been caught yet. Ignoring that fact, he said, makes a mockery of immigration laws and encourages more people to break them.


Luis Alberto Enamorado Gomez, who left Honduras for the U.S. in 2005, was charged with a DUI in 2012 and ordered deported the following year, but because his case was considered a low priority under the administration of President Barack Obama, he never was forced to leave. That was common in the final two years of Obama's presidency, when ICE was directed to exercise discretion to defer action on certain migrants with standing removal orders, including those with citizen children and living in the U.S. prior to 2010.

That ended under Trump, and with new marching orders to prioritize any and all immigration cases, ICE followed up earlier this year and took Gomez into custody. He was held for about six weeks and is now fighting his deportation. The 31-year-old from Grandview, Missouri, said he fears what his removal would mean for his seven children, all U.S. citizens for whom he is the sole provider.

"How are we criminals when we just come here and work and provide for our families?" he asked.

With a spotlight on the separation of immigrant children and their parents this summer, Trump tried to refocus attention on dangerous immigrants by hosting a White House event with relatives of those killed by people in the country illegally. "These are the American citizens that are permanently separated from their loved ones," Trump said. "These are the stories that Democrats and the people that are weak on immigration, they don't want to discuss."


And yet the most serious crimes, such as murder and rape, are relatively rare among deportees. Studies also have found immigrants to the U.S. have a lower level of criminality than citizens.

Some local law enforcement agencies partner with ICE and immediately alert the agency if an immigrant in the country illegally comes in contact with an officer — whether because they committed a crime or were a victim of one. Even without such cooperation, ICE can send its officers to courthouses when immigrants are scheduled to appear to apprehend them for deportation.

That's what happened to Nefi Rodas, a 34-year-old construction worker in Worcester, Massachusetts, who paid a smuggler to escape Guatemala in 2003. After he was cited last year for suspicion of driving under the influence, he went to court for a pre-arraignment appearance. ICE agents were waiting outside the building.

"We don't even know what to do as immigration attorneys," said Cindy Burke, who represents Rodas. "You have to show up to state court, but there's a good chance ICE is going to be waiting for you."

Because Rodas never made it to his hearing, a warrant was issued for his arrest, complicating his drunken driving case. He spent nearly four months in ICE custody, but deportation proceedings ended after a judge found that sending Rodas back to Guatemala would have caused undue hardship on his special-needs daughter. He is now a legal permanent resident of the U.S.

"One person does something, and it's as if we all have done it," he said of the inclination of some Americans to brand all without legal status as violent criminals. "I haven't murdered anybody. I haven't violated anybody."


The share of deportees not convicted of a crime was higher at the end of George W. Bush's presidency, when two-thirds had no record, according to ICE data. Total deportations reached a peak in the early years of the Obama administration — but the share of those people without a criminal record fell. Overall, when examining deportations of both those caught at the border and living within the country, the percentage of those with no conviction has increased slightly under Trump compared to Obama. But with increased arrests of immigrants already living in the U.S., experts expect the numbers to continue rising.

"We see ICE doing things that allows them to get the low-hanging fruit, so to speak, the easy enforcement," said Pierce, referring to arrests at ICE-mandated office check-ins, for example.

Melissa Aispuro, 20, of Tucson, Arizona, is another with no record to find herself in deportation proceedings. Aispuro has lived most of her life in the U.S. She was brought as a child and returned to Mexico for a time after high school before coming back in 2016. She entered legally with a border crossing card, but overstayed.

When her car was struck by another motorist last October, she didn't think anything of calling police. She hadn't even considered they would call ICE on someone with no criminal record who had just been in an accident.

"It's like really sad because not all of us are criminals. Some just come here for education, for a better life," said Aispuro, who is married to a U.S. citizen and fighting her deportation. "You can think whatever you want, but in my heart I know what I am." 

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Trump is slashing the number the US will let in

By Zachary Cohen and Elise Labott, CNN 


Washington (CNN)As the number of people displaced by war and famine surges, the Trump administration is capping refugee admissions at the lowest level since 1980, Secretary of State Mike Pompeo announced Monday. It's the second year in a row the administration has set the cap at a record low.

The US will cap refugee admissions at 30,000 in 2019, a 33% drop from 2018's record-low ceiling of 45,000.Pompeo said the number should not be considered as "the sole barometer" of the United States' commitment to humanitarian efforts around the world, adding that the US would "focus on the humanitarian protection cases of those already in the country."As evidence, Pompeo cited the number of asylum applications expected next year, saying the US will process up to 280,000 such applications in 2019. 


"The ultimate goal is the best possible care and safety of these people in need, and our approach is designed to achieve this noble objective," Pompeo said. "We are and continue to be the most generous nation in the world."

Refugee resettlement agencies, immigrant rights groups and religious leaders had been pushing for the administration to increase the cap, noting that the number of refugees who need help around the world is larger than ever.
But Monday's announcement isn't a surprise. Administration officials have been moving to scale back refugee resettlement in the US since President Donald Trump took office.
Last year, officials lowered the cap to 45,000, a dramatic decrease from the ceiling of 110,000 that President Barack Obama's administration had set for the 2017 fiscal year.


And the US isn't even going to admit that many. CNN reported in June that the US is on track to admit the fewest number of refugees since its resettlement program began in 1980, tens of thousands below the cap amount.

Monday's announcement was met with swift condemnation from refugee resettlement organizations.

"The United States is not only abdicating humanitarian leadership and responsibility-sharing in response to the worst global displacement and refugee crisis since World War II, but compromising critical strategic interests and reneging on commitments to allies and vulnerable populations," the International Rescue Committee said.

Pompeo's assertion that the US will process up to 310,000 refugees and asylum seekers also makes a false equivalence between the two issues.

Asylum and refugee protections are designed on similar grounds to protect immigrants who are being persecuted. Refugee protections are granted to immigrants who are still abroad, whereas asylum is reserved for immigrants who have already arrived on US soil.

There is no cap on asylum numbers, and in recent years, roughly 20,000 to 25,000 asylum seekers have been granted protections annually, according to the latest available government statistics.

There are two resource and funding streams each for refugees and asylum cases.They also apply differently -- with the State Department handling refugee admissions and the Department of Homeland Security and Department of Justice handling asylum claims. The interviewers who conduct screenings, however, can be deployed to handle either kind of interview.But immigration hardliners and the administration have sought to curtail to the growing number of asylum claims each year, driven in large part by immigrants arriving at the southern border.The number announced Monday reflects a compromise between hardliners in the Trump administration, such as Stephen Miller, who favored capping the ceiling at 20,000, and Pompeo, national security adviser John Bolton and US ambassador to the UN Nikki Haley, who argued to keep it at 45,000, according to several senior administration officials.Senior NSC official out at White HouseSenior NSC official out at White HouseMiller personally has lobbied Cabinet officials to support the President's desires to focus on border security, officials told CNN, and the issue was discussed at a secret Principals Committee meeting on Friday.Hundreds of thousands of asylum applications are pending between the immigration courts, run by the Department of Justice, and applications to US Citizenship and Immigration Services, run by the Department of Homeland Security.Depending on how a person is applying for asylum, and where in the process the application is, the case could be pending before either body.

CNN's Catherine Shoichet, Tal Kopan, Michelle Kosinski and Jennifer Hansler contributed reporting


Federal Judge Allows DACA Renewals to Continue for Now

Written by Joshua Breisblatt SEPTEMBER 4, 2018 in Benefits & Relief, DACA/DAPA, Federal Courts

This week will mark the one-year anniversary of President Trump’s announcement ending the Deferred Action for Childhood Arrivals (DACA) initiative. Yet, defenders and recipients of DACA are celebrating a decision that came late last week, in which several states attempting to end the initiative were hit with a major setback.

On Friday, U.S. Judge Andrew Hanen of the Southern District of Texas ruled that individuals with DACA can continue to renew their status. The ruling came as a surprise given Hanen’s previous 2014 ruling that halted other Obama-era executive actions on immigration.

President Trump announced that his administration would phase out and permanently end DACA in September 2017 and no renewals would be accepted after March 5, 2018. As a result, multiple lawsuits were filed seeking to stop DACA’s termination. Those lawsuits were initially successful, with three different federal judges ordering the Trump administration to continue to accept DACA renewal applications.

But while these cases were ongoing, Texas and nine other states filed a lawsuit before Hanen challenging the constitutionality of DACA itself. This lawsuit attempted to end DACA and sought an injunction ending any further processing of renewals.

In last week’s ruling, Hanen rejected Texas and the other states’ request to temporarily halt DACA renewals. In a detailed 117-page opinion, the judge overwhelmingly agreed with the states’ argument that DACA was created unlawfully and should be struck down. He even said the states will likely succeed in the courts over time. However, Hanen said he would not issue an injunction.

Hanen reasoned that the states had waited too long to file this challenge. The judge also found that halting renewals would cause immediate harm to DACA recipients. As Hanen explained,

“Here the egg has been scrambled. To try to put it back in the shell with only a preliminary injunction record, and perhaps at a great risk to many, does not make sense nor serve the best interests of this country.”

Therefore, the states’ request was for an injunction was rejected. The constitutionality of DACA is yet to be addressed, however.

The parties in the case have three weeks to appeal the decision, which would go to the Fifth Circuit Court of Appeals. It would possibly then move to the U.S. Supreme Court.

Immigrant rights’ organizations are encouraging individuals with DACA to continue to submit their renewal applications.

What these court rulings continue to make clear is the need for a permanent solution once and for all, so that DACA recipients can live with greater certainty and stability.


Students and Exchange Visitors at Risk of Being Barred from U.S. Under New USCIS Policy

Written by AUGUST 15, 2018in Business & the Workforce, Economics 


U.S. Citizenship and Immigration Services (USCIS) issued a revised, final policy memorandum on August 9, 2018 that radically changes how the agency will determine when a foreign student or exchange visitor is “unlawfully present” in the United States. “Unlawful presence” is a legal term used to describe any time spent in the United States after a foreign national’s period of authorized stay has ended.

Most foreign nationals who are inspected and admitted in nonimmigrant status are authorized to remain in the United States until a specific date. However, academic program students and exchange visitors frequently are authorized to remain in the United States for what is known as “duration of status” because a date certain cannot account for the many variables that affect their length of stay, such as when they will complete a program or project.

Under USCIS’ new policy, effective August 9, the day after an event that the agency considers a status violation, in most cases, will be the starting date for calculating unlawful presence for students and exchange visitors. Many will accumulate unlawful presence sooner than under the prior policy. Often, they will not know that they have fallen out of status and will not know that they are accumulating unlawful presence. The change is significant because generally a nonimmigrant who leaves the United States after being unlawfully present for more than 180 days but less than 1 year is barred from returning for three years; after one year or more of unlawful presence, the bar is ten years.

USCIS’ policy change also affects the spouses and 18-or-older children whose status was based on the student or exchange visitor’s status, since they will accrue unlawful presence based on an event later found to be a status violation by the student or exchange visitor.

USCIS released its initial version of this policy in May 2018, and provided 30 days for the public to comment. Despite the many objections commenters raised, USCIS made few changes. The only changes USCIS made in calculating when unlawful presence begins involve “reinstatement of status.” If a student files a reinstatement application within five months of being out of status, unlawful presence will begin only if USCIS denies the application. Although initially provided only for academic program students, USCIS now provides that if any student or exchange visitor is reinstated, regardless of when requested, the student or exchange visitor generally will not accrue unlawful presence during the time the request was pending.

These changes are of limited utility because they do not address the fundamental “gotcha” problem with the new policy: People who only find out years later that USCIS now considers them to have been out of status and accruing unlawful presence.

In its attempt to justify this radical change, USCIS manipulated data on students and exchange visitors who remained beyond their period of authorized stay, often referred to as “overstays.” USCIS claims that the total overstay rate was “significantly higher” in Fiscal Year (FY) 2016 and FY 2017 for the student and exchange visitor categories than for other nonimmigrants. However, the U.S. Department of Homeland Security (DHS) reports from which USCIS takes these numbers also reveals their flaws. DHS includes in these totals departure dates recorded after the authorized period of stay expired (“out-of-country overstays”). These could include people who stayed only a day longer because their flight was canceled, or they became ill. Indeed, Table 7 of DHS’ FY2017 report shows that 49% of “out-of-country overstays” of 60 days or fewer were 10 days or fewer. The other overstay category DHS includes is people for whom no departure record was recorded (“suspected in-country overstays”). But a departure may not be recorded because a person lawfully extended or changed nonimmigrant status or became a lawful permanent resident (a “green card holder”). Also, DHS admits that “determining lawful status requires more than solely matching exit and entry data” and that the agency established artificial “cutoff dates” of departures “expected to occur.”

DHS also reports, based on more recent data, a compliance rate of nearly 100% of all nonimmigrants scheduled to depart in FY2017 by air and sea ports of entry, and of nearly 99% in FY2016. Looking at just the “suspected in-country overstays” in Table 8 of DHS’ FY2017 report, even with the inflation due to including people who are not overstays at all, as of May 1, 2018, the FY2017 overstay rate for student and exchange visitor nonimmigrants is only 1.43 percent.

This unwarranted, punitive policy will only serve to drive students, and physicians, trainees, interns and other exchange visitors, toward opportunities in other countries. Foreign nationals are already growing increasingly wary of pursuing higher education in the United States, as evidenced by declining enrollment. This policy will only deepen their anxiety.

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Detention of Migrant Children Has Skyrocketed

Highest Levels Ever


By Caitlin Dickerson

New York Times

  • Sept. 12, 2018

Even though hundreds of children separated from their families after crossing the border have been released under court order, the overall number of detained migrant children has exploded to the highest ever recorded — a significant counternarrative to the Trump administration’s efforts to reduce the number of undocumented families coming to the United States.

Population levels at federally contracted shelters for migrant children have quietly shot up more than fivefold since last summer, according to data obtained by The New York Times, reaching a total of 12,800 this month. There were 2,400 such children in custody in May 2017.

The huge increases, which have placed the federal shelter system near capacity, are due not to an influx of children entering the country, but a reduction in the number being released to live with families and other sponsors, the data collected by the Department of Health and Human Services suggests. Some of those who work in the migrant shelter network say the bottleneck is straining both the children and the system that cares for them.

Most of the children crossed the border alone, without their parents. Many are teenagers from Central America, and they are housed in a system of more than 100 shelters across the United States, with the highest concentration near the southwest border.


In a Speech to New Immigration Judges

Attorney General Sessions Attacks Immigration Lawyers and Judicial Independence

Rather than encourage the new class of 44 immigration judges to be fair and impartial adjudicators in his Monday morning speech, Attorney General Jeff Sessions advocated for a deeply flawed immigration court system and directed judges to carry out the Trump administration’s punitive, anti-immigration agenda.

While many would have taken the opportunity to reinforce principles of due process and fairness to new judges, Sessions instead emphasized that judges must follow his commands and encouraged judges to ignore “sympathy” when applying the law to noncitizens in their courtrooms.  He also renewed his criticisms of immigration lawyers and the noncitizens who access immigration courts each day in order to apply for immigration relief.

Throughout his speech, Sessions framed the role of immigration judges as enforcers of the law, not as neutral adjudicators in an adversarial system. He declared that the work of the new judges would “send a clear message to the world that the lawless practices of the past are over” and railed against “the problem of illegal immigration.”

Rather than be a place where individuals ask for immigration relief and impartial judges weigh the merits of each case, Sessions seemed to argue for the courts to be turned into a deportation mill. Judges would then spearhead the fight against illegal immigration.

Despite the Attorney General’s authority to establish performance standards and create new precedent for judges to follow, the Immigration and Nationality Act (INA) allows judges to independently make decisions on individual immigrants’ cases.

Ashley Tabaddor, the president of the union representing immigration judges, reacted to Sessions’ remarks, calling them “troubling and problematic” and accused Sessions of not “appreciat[ing] the distinction” between judges and prosecutors. “We are not one and the same as them.”

Sessions also renewed his attacks on immigration lawyers, first articulated in a 2017 speech (for which he was widely condemned) when he accused “dirty immigration lawyers” of encouraging undocumented immigrants to “make false claims of asylum [by] providing them with the magic words needed” to claim asylum.

Monday’s speech returned to a similar theme, with Sessions claiming that “good lawyers … work every day—like water seeping through an earthen dam—to get around the plain words of the INA to advance their clients’ interests. Theirs is not the duty to uphold the integrity of the Act.”

In response to this new attack, the American Immigration Lawyers Association issued a press release accusing Sessions of expressing “disdain for lawyers who take a solemn oath to uphold the law” and showing “a complete disregard for the role of independent judges in overseeing our adversarial system.”

Sessions’ ongoing assault on judicial impartiality threatens to undermine the ability of judges to make decisions based only on the facts and law in front of them.

In addition, by attacking immigration lawyers, who every day play a vital role in ensuring that noncitizens have a fair day in court, Sessions continues to demonstrate that he has little interest in fairness or justice when it comes to immigrants. Our immigration courts should reflect our American values of fairness, compassion, and due process, rather than a rejection of them.

Written by SEPTEMBER 11, 2018in Due Process & the Courts, Immigration Courts  


SPECIAL REPORT Detaining Families

A Study of Asylum Adjudication in Family Detention


A Study of Asylum Adjudication in Family Detention

357By Ingrid Eagly, Esq., Steven Shafer, Esq. and Jana Whalley, Esq.August 16, 2018

The United States currently detains more protection-seeking families than any nation in the world. Since 2001, parents and their children have been held at various times in five different detention facilities in New Mexico, Texas, and Pennsylvania, as they seek asylum in the United States. The number of detention beds reserved exclusively for families has ballooned since the first facility opened in 2001. Between 2001 and 2016, capacity reserved exclusively for detaining families increased by an astronomical 3,400 percent. Yet, despite this growth in detention, little is known about how these families fare in the immigration court process and what barriers they face in pursuing their asylum claims. This information is particularly important as government officials and policymakers weigh the use and potential expansion of family detention.

This report presents findings from the first empirical analysis of asylum adjudication in family detention. Drawing on government data from over 18,000 immigration court proceedings initiated between fiscal years 2001 and 2016, this report documents how families detained in the United States’ family detention centers proceeded through the court process.

The analysis of court data and government records presented in this report reveals an expanding system of detention that imprisons families seeking asylum, sometimes for prolonged periods, and presents serious hurdles to a fair court process. The main findings presented in the report include:

Detained families face significant barriers to seeking asylum in the court system.

Families have been detained in remote locations, have faced barriers accessing the courts, and—despite valiant pro bono efforts to assist them—have routinely gone to court without legal representation. Detained parents and children rely on volunteers and nonprofit attorneys willing to travel to remote detention centers to provide pro bono representation, which is still insufficient to serve all detained family members. During the period studied, we found:

  • Families were detained in remote locations, far away from urban centers and service providers. Almost all hearings in family detention (93 percent) were conducted remotely over video, rather than in a traditional face-to-face courtroom setting.
  • Families released from detention were more likely to have legal representation. At the most recent merits hearings for families in our study, 76 percent of family members who had been released from detention were represented by counsel, compared to 53 percent of family members who remained detained.
  • Barriers to obtaining lawyers in detention were particularly profound at the initial stage of proceedings, where only 32 percent of detained family members found counsel.

The vast majority of families released from detention showed up for court.

Despite the challenges posed by detention, family members pursued viable claims for protection and showed up for proceedings after release from detention. During the 15 years of our study, we found:

  • Family members who were released from detention had high compliance rates: 86 percent of released family members (with completed and pending cases) had attended all of their court hearings that occurred during our study period. This rate was even higher among family members applying for asylum: 96 percent of asylum applicants had attended all their immigration court hearings.
  • Family members who were released from detention and obtained counsel had a relatively high rate of success in their completed cases. Half (49 percent) of family members who were released and sought legal relief from removal with the help of an attorney were allowed to stay at the completion of their case. By comparison, only 8 percent of detained family members without representation had the same success in their cases.
  • Case outcomes for families varied widely, however, depending on the jurisdiction in which their cases were adjudicated. In addition to the different asylum grant rates of judges in each jurisdiction, we find that disparities in case outcomes reflect broader jurisdictional inequities, such as the availability of local attorneys and the willingness of local prosecutors to grant a case closure based on prosecutorial discretion.

Families have been subjected to overdetention by immigration officials, and the courts have served as an important check and balance in this complex system.

Our study documents the often lengthy and wasteful process associated with detention. Our review of the government’s own data supplies ample evidence that families have been subjected to overdetention by immigration officials. The study further reveals the important role immigration courts can play in protecting due process—yet these checks and balances can vary considerably across different jurisdictions. This variability results in uneven access to justice for asylum-seeking families. Analyzing immigration court data, we found:

  • Immigration and Customs Enforcement (ICE) officers issued initial custody decisions that unnecessarily prolonged the detention of families. Immigration judges regularly found that family members were eligible for release, overturning detention officers’ previous decisions to keep families detained.
    • Among the detained family members ICE decided not to release, 59 percent appealed ICE’s custody decision and were provided a bond hearing in front of a judge.
    • Of these family members who had a judicial bond hearing, 57 percent of them were granted a form of release by the judge.
    • DHS officials regularly refused to set bond, or issued prohibitively high bond amounts, resulting in the overdetention of families. Immigration judges systematically reversed these no-bond detention decisions by ICE. When ICE officers did set bond for detained families, immigration judges routinely found that the amount was too high.
    • One-third (34 percent) of family members whose cases were completed during our study period were held in detention for the duration of the immigration court process. In some cases, these detentions lasted three or more months.

Now is a particularly crucial time to engage in a data-driven analysis of the impact that family detention has on immigration court adjudication. This understudied topic is particularly important given the Trump administration’s explicit intentions for immigration enforcement—including proposals to expand expedited removal, heighten standards for asylum claims, and increase the use of detention throughout the adjudication process. The findings presented in this report are vital to these and other policy decisions involving asylum-seeking families and the immigration courts.

This report documents how detained families fare in the immigration court process and what barriers they face in pursuing their asylum claims. The analysis of government data and records reveal that families show up for their proceedings and have viable claims for protection. Further, this report shows how the government overuses detention as a way to manage the migration of families fleeing violence in their home countries. Finally, the findings presented in the report underscore the vital role immigration courts have in maintaining—albeit unevenly—due process in asylum proceedings.

These findings provide evidence that supports the following:

  • Families must be afforded a fair day in court and due process, without being detained and subjected to fast-track deportation processes. Families should be placed directly into proceedings before an immigration judge, rather than first subjected to a summary removal process. Expedited removal and other summary processes all too often circumvent the checks and balances that immigration courts can provide and limit the ability of individuals to fully present their case and access justice.
  • Detained families should have access to government-funded counsel in immigration court. Despite intensive pro bono efforts, access to counsel remains a pressing issue for families in detention. Representation may be the difference between life and death for families and other individuals seeking asylum.
  • Immigration judges should have additional training, resources, and standardization for adjudicating cases of detained families. There is significant variation among different court jurisdictions regarding the treatment of family detention cases, the rates of legal representation for families, and the number of family members who submit applications for relief. Increased training and oversight mechanisms would help minimize such variation, thereby ensuring outcomes in family cases are not adversely affected as a result of location.
  • The immigration bench must maintain judicial independence. Immigration courts have played an important role in reviewing problematic and erroneous decisions in cases pertaining to families and ensuring individuals have a fair opportunity to present their claims. The independence of immigration courts must be protected in order to preserve their vital function in reviewing the administrative decisions of immigration authorities and asylum officers. It is also crucial that immigration judges are given sufficient time to decide their cases, without the imposition of numerical quotas for case completion.

About the Data

This report analyzes government data obtained using the Freedom of Information Act (FOIA) from the Executive Office for Immigration Review (EOIR), the division of the Department of Justice that conducts immigration court proceedings. The authors obtained these data for analysis from the Transactional Records Access Clearinghouse (TRAC), a data-gathering and research nonprofit at Syracuse University. This report identifies 18,378 immigration court proceedings that began between 2001 and 2016 in one of five family detention centers and were completed or still pending adjudication at the end of fiscal year 2016. These proceedings were associated with the five family detention centers studied: (1) Berks Family Residential Facility (n = 4,086); (2) T. Don Hutto Residential Center (n = 2,928); (3) Artesia Family Residential Center (n = 1,316); (4) Karnes County Residential Center (n = 3,760); and (5) South Texas Family Residential Center (Dilley) (n = 6,293).

This report also relies on other public records related to family detention obtained by the authors from EOIR and the United States Department of Homeland Security (DHS) using FOIA. These materials are available to the public in an online appendix created by the authors. See

The analysis in this report is available in expanded form, including a detailed methodological appendix, in Ingrid Eagly, Steven Shafer & Jana Whalley, Detaining Families: A Study of Asylum Adjudication in Family Detention, 106 Calif. L. Rev. 785 (2018).

Have you or a loved one been detained?

If you or a loved one has been detained, contact the Law Offices of Luis M. Garcia for a consultation.

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September 7, 2018

New Study Attempts to Undermine Legal Orientation Program for Detained Immigrants by Joshua Breisbla


The Department of Justice (DOJ) released “Phase I” of its review of the federally-funded Legal Orientation Program (LOP) this week. The review came after Attorney General Jeff Sessions attempted to end the program in April but was forced to reverse that decision after receiving significant bipartisan pushback from Congress.

The LOP, which is managed by the Executive Office for Immigration Review (EOIR) within the Justice Department, offers legal education as well as referrals for free and low-cost legal counsel to noncitizens in immigration detention. The LOP was started in 2003 under President George W. Bush after a pilot study found that the LOP “helped DOJ ensure that all respondents had a clear understanding of their procedural rights, led to cases being completed more quickly, and increased availability of representation [to detainees] with potential meritorious claims to relief.”

While it is not a substitute for legal counsel, the LOP does provide important information to individuals in detention about their rights and the removal process. There have been multiple studies conducted on the LOP by the federal government, nonprofit organizations, and outside third parties that reaffirm its usefulness. Every study has shown the LOP decreases the average length of time a person is in immigration detention, saving the government up to millions of dollars annually.

However, this new study released by DOJ attempts to undermine all previous evaluations of the program.

The study is the first phase of a three-phase review to be completed by the end of October 2018. Among other findings, it alleges that LOP participants spend more time in detention, costing the government more money; that LOP participants are less likely to get attorneys; and that their cases take longer to resolve.

The report presents these findings and overall numbers to show its methodology but unfortunately does not make their underlying data available for analysis.

The Vera Institute of Justice (Vera), the nonprofit organization who contracts with EOIR to run the LOP program, says this new study has “insurmountable methodological flaws in EOIR’s analysis.”

At DOJ’s request, Vera has completed and will submit its own study next week. Vera reports that it has “starkly different findings that prove the efficiencies” of the program—which would be in line with all studies of the LOP conducted over the last 16 years.

Given the Attorney General’s earlier attempts to unilaterally end the LOP, one could assume that the ultimate goal of these government studies is to justify ending the program. When evaluating the program, it will be important for Congress to take a critical look at these new DOJ studies and review them alongside the totality of evidence in support of the program. Without government-provided counsel, LOP is a critical resource for detained immigrants to receive due process in a complex immigration court system.

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Luis Mariano Garcia is an immigration lawyer who has served the South Florida community for years. His bilingual staff is ready to help you, whatever your immigration needs may be. Call now for a consultation. (305) 598-6097


Immigration News

How the United States Immigration System Works

 U.S. immigration law is very complex, and there is much confusion as to how it works. The Immigration and Naturalization Act (INA), the body of law governing current immigration policy, provides for an annual worldwide limit of 675,000 permanent immigrants, with certain exceptions for close family members. Lawful permanent residency allows a foreign national to work and live lawfully and permanently in the United States. Lawful permanent residents (LPRs) are eligible to apply for nearly all jobs (i.e., jobs not legitimately restricted to U.S. citizens) and can remain in the country even if they are unemployed. Each year the United States also admits noncitizens on a temporary basis. Annually, Congress and the President determine a separate number for refugee admissions.

Immigration to the United States is based upon the following principles: the reunification of families, admitting immigrants with skills that are valuable to the U.S. economy, protecting refugees, and promoting diversity. This fact sheet provides basic information about how the U.S. legal immigration system is designed.

I. Family-Based Immigration

Family unification is an important principle governing immigration policy. The family-based immigration category allows U.S. citizens and LPRs to bring certain family members to the United States. Family-based immigrants are admitted either as immediate relatives of U.S. citizens or through the family preference system.

Prospective immigrants under the immediate relatives’ category must meet standard eligibility criteria, and petitioners must meet certain age and financial requirements. Immediate relatives are:

  • spouses of U.S. citizens;
  • unmarried minor children of U.S. citizens (under 21-years-old); and
  • parents of U.S. citizens (petitioner must be at least 21-years-old to petition for a parent).

A limited number of visas are available every year under the family preference system, but prospective immigrants must meet standard eligibility criteria, and petitioners must meet certain age and financial requirements. The preference system includes:

  • adult children (married and unmarried) and brothers and sisters of U.S. citizens (petitioner must be at least 21-years-old to petition for a sibling), and
  • spouses and unmarried children (minor and adult) of LPRs.

In order to balance the overall number of immigrants arriving based on family relationships, Congress established a complicated system for calculating the available number of family preference visas for any given year. The number is determined by starting with 480,000 and then subtracting the number of immediate relative visas issued during the previous year and the number of aliens “paroled” into the U.S. during the previous year. Any unused employment preference immigrant numbers from the preceding year are then added to this sum to establish the number of visas that remain for allocation through the preference system. However, by law, the number of family-based visas allocated through the preference system may not be lower than 226,000. In reality, due to large numbers of immediate relatives, the actual number of preference system visas available each year has been 226,000. Consequently, the total number of family-based visas often exceeds 480,000. 

In Fiscal Year (FY) 2014, family-based immigrants comprised 64 percent of all new LPRs in the United States.

The family-based immigration system is summarized in Table 1.

Table 1: Family-Based Immigration System


U.S. Sponsor


Numerical Limit

Immediate Relatives

U.S. Citizen adults

Spouses, unmarried minor children, and parents


Preference allocation 


U.S. citizen

Unmarried adult children




Spouses and minor children




Unmarried adult children



U.S. citizen

Married adult children



U.S. citizen

Brothers and Sisters


* Plus any unused visas from the 4th preference.

** Plus any unused visas from 1st and 2nd preference.

***Plus any unused visas from the all other family-based preferences.

Worldwide level of family preference allocation: 480,000 minus visas issued to immediate relatives and parolees, plus unused employment-visas from previous fiscal year. Floor for preference categories: 226,000.

Source:  William A. Kandel, Permanent Legal Migration to the United States, (CRS Report No. R42866) (Washington, DC: Congressional Research Service, 2014),

In order to be admitted through the family-based immigration system, a U.S. citizen or LPR sponsor must petition for an individual relative, establish the legitimacy of the relationship, meet minimum income requirements, and sign an affidavit of support stating that the sponsor will be financially responsible for the family member(s) upon arrival in the United States.

The spouses and children who accompany or follow the principal immigrants (those who qualify as immediate relatives or in family-preference categories) are referred to as derivative immigrants. The number of visas granted to derivative immigrants is counted under the appropriate category limits. For example, in FY 2013, 65,536 people were admitted as siblings of U.S. citizens; 27,022 were actual siblings of U.S. citizens (the principal immigrants); 14,891 were spouses of principal immigrants; and 23,623 were children of principal immigrants.

II. Employment-Based Immigration

The United States provides various ways for immigrants with valuable skills to come to the country on either a permanent or a temporary basis.

Temporary Visa Classifications

Temporary employment-based visa classifications permit employers to hire and petition for foreign nationals for specific jobs for limited periods. Most temporary workers must work for the employer that petitioned for them and have limited ability to change jobs. There are more than 20 types of visas for temporary nonimmigrant workers. These include L-1 visas for intracompany transfers; various P visas for athletes, entertainers, and skilled performers; R-1 visas for religious workers; various A visas for diplomatic employees; O-1 visas for workers of extraordinary ability; and various H visas for both highly-skilled and lesser-skilled employment. The visa classifications vary in terms of their eligibility requirements, duration, whether they permit workers to bring dependents, and other factors. In most cases, they must leave the United States if their status expires or if their employment is terminated.

Permanent Immigration

The overall numerical limit for permanent employment-based immigrants is 140,000 per year. This number includes the immigrants plus their eligible spouses and minor unmarried children, meaning the actual number of employment-based immigrants is less than 140,000 each year. The 140,000 visas are divided into five preference categories, detailed in Table 2.

Table 2: Permanent Employment-Based Preference System

Preference Category


Yearly Numerical Limit


“Persons of extraordinary ability” in the arts, science, education, business, or athletics; outstanding professors and researchers, multinational executives and managers.



Members of the professions holding advanced degrees, or persons of exceptional abilities in the arts, science, or business.



Skilled workers with at least two years of training or experience, professionals with college degrees, or “other” workers for unskilled labor that is not temporary or seasonal.


“Other” unskilled laborers restricted to 5,000


Certain “special immigrants” including religious workers, employees of U.S. foreign service posts, former U.S. government employees and other classes of aliens.



Persons who will invest $500,000 to $1 million in a job-creating enterprise that employs at least 10 full time U.S. workers.


*Plus any unused visas from the 4th and 5th preferences.

**Plus any unused visas from the 1st preference.

***Plus any unused visas from the 1st and 2nd preference.

Worldwide level of employment-based immigrants: 140,000 for principal applicants and their dependents.

Source:  Kandel, William A. Kandel, Permanent Legal Migration to the United States, (CRS Report No. R42866) (Washington, DC: Congressional Research Service R42866, October 29, 2014), 4,

In FY 2014, immigrants admitted through the employment preferences made up 15 percent of all new LPRs in the United States.

III. Per-Country Ceilings

In addition to the numerical limits placed upon the various immigration preferences, the INA also places a limit on how many immigrants can come to the United States from any one country. Currently, no group of permanent immigrants (family-based and employment-based) from a single country can exceed seven percent of the total amount of people immigrating to the United States in a single fiscal year. This is not a quota to ensure that certain nationalities make up seven percent of immigrants, but rather a limit that is set to prevent any immigrant group from dominating immigration patterns to the United States.

IV. Refugees and Asylees

Protection of Refugees, Asylees, and other Vulnerable Populations

There are several categories of legal admission available to people who are fleeing persecution or are unable to return to their homeland due to life-threatening or extraordinary conditions.

Refugees are admitted to the United States based upon an inability to return to their home countries because of a “well-founded fear of persecution” due to their race, membership in a particular social group, political opinion, religion, or national origin. Refugees apply for admission from outside of the United States, generally from a “transition country” that is outside their home country. The admission of refugees turns on numerous factors, such as the degree of risk they face, membership in a group that is of special concern to the United States (designated yearly by the President of the United States and Congress), and whether or not they have family members in the United States.

Each year the President, in consultation with Congress, determines the numerical ceiling for refugee admissions. The total limit is broken down into limits for each region of the world as well. After September 11, 2001, the number of refugees admitted into the United States fell drastically, but annual admissions have steadily increased as more sophisticated means of conducting security checks have been put into place.

For FY 2016, the President set the worldwide refugee ceiling at 85,000, shown in Table 3 with the regional allocations.

Table 3: Presidential Determination on Refugee Admissions, FY 2016



East Asia


Europe and Central Asia


Latin America/Caribbean


Near East/South Asia


Unallocated Reserve




Source: U.S. Departments of State, Homeland Security, and Health and Human Services, Proposed Refugee Admissions for Fiscal Year 2016: Report to the Congress, (Washington, DC, 2015).

Asylum is available to persons already in the United States who are seeking protection based on the same five protected grounds upon which refugees rely. They may apply at a port of entry at the time they seek admission or within one year of arriving in the United States. There is no limit on the number of individuals who may be granted asylum in a given year nor are there specific categories for determining who may seek asylum. In FY 2014, 23,533 individuals were granted asylum.

Refugees and asylees are eligible to become LPRs one year after admission to the United States as a refugee or one year after receiving asylum.

IV. The Diversity Visa Program

The Diversity Visa lottery was created by the Immigration Act of 1990 as a dedicated channel for immigrants from countries with low rates of immigration to the United States. Each year 55,000 visas are allocated randomly to nationals from countries that have sent less than 50,000 immigrants to the United States in the previous 5 years. Of the 55,000, up to 5,000 are made available for use under the NACARA program. This results in a reduction of the actual annual limit to 50,000.

Although originally intended to favor immigration from Ireland (during the first three years of the program at least 40 percent of the visas were exclusively allocated to Irish immigrants), the Diversity Visa program has become one of the only avenues for individuals from certain regions in the world to secure a green card.

To be eligible for a diversity visa, an immigrant must have a high-school education (or its equivalent) or have, within the past five years, a minimum of two years working in a profession requiring at least two years of training or experience. Spouses and minor unmarried children of the principal applicant may also enter as dependents. A computer-generated random lottery drawing chooses selectees for diversity visas. The visas are distributed among six geographic regions with a greater number of visas going to regions with lower rates of immigration, and with no visas going to nationals of countries sending more than 50,000 immigrants to the United States over the last five years.

People from eligible countries in different continents may register for the lottery. However, because these visas are distributed on a regional basis, the program especially benefits Africans and Eastern Europeans.

V. Other Forms of Humanitarian Relief

Temporary Protected Status (TPS) is granted to people who are in the United States but cannot return to their home country because of “natural disaster,” “extraordinary temporary conditions,” or “ongoing armed conflict.” TPS is granted to a country for six, 12, or 18 months and can be extended beyond that if unsafe conditions in the country persist. TPS does not necessarily lead to LPR status or confer any other immigration status.

Deferred Enforced Departure (DED) provides protection from deportation for individuals whose home countries are unstable, therefore making return dangerous. Unlike TPS, which is authorized by statute, DED is at the discretion of the executive branch. DED does not necessarily lead to LPR status or confer any other immigration status. 

Certain individuals may be allowed to enter the U.S. through parole, even though they may not meet the definition of a refugee and may not be eligible to immigrate through other channels. Parolees may be admitted temporarily for urgent humanitarian reasons or significant public benefit.

VI. U.S. Citizenship

In order to qualify for U.S. citizenship through naturalization, an individual must have had LPR status (a green card) for at least five years (or three years if he or she obtained the green card through a U.S.-citizen spouse or through the Violence Against Women Act, VAWA). There are other exceptions including, but not limited to, members of the U.S. military who serve in a time of war or declared hostilities. Applicants for U.S. citizenship must be at least 18-years-old, demonstrate continuous residency, demonstrate “good moral character,” pass English and U.S. history and civics exams (with certain exceptions), and pay an application fee, among other requirements.




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