Just the other day the 6th Circuit Court of appeals overturned the denial of an Adjustment of Status application filed on behalf of a TPS holder. The TPS recipient had entered the US illegally, but had a US Citizen wife. The couple filed an I-130 (family based petition) and I-485 (application to adjust status). While USCIS approved the I-130 they denied the I-485. Generally, those who enter the US illegally are prohibited from adjusting their status to a permanent resident because of Section 245 of the Immigration and Nationality Act (INA). However, those in TPS status are considered to be in status and are able to work and stay in the US. Unfortunately, the part of the statute that states that they are to be considered as admitted and legal has always been read by USCIS to only apply to the ability of TPS recipients to work, and not extended to their ability to adjust status (if they entered the US illegally). Therefore USCIS has consistently denied such I-485 applications.
The 6th Circuit, however, stated that the only support for this position is the history of USCIS adjudications and that it has no support in the statute or legislative history. Because such a reading was against the plain language of the statute, the 6th Circuit went on to overturn the decision. This means that those person in TPS status who entered the US illegally are now able to adjust their status to that of a permanent resident if they are otherwise eligible (at least if they live within the jurisdiction of the 6th Circuit). It still remains to be seen if USCIS will appeal the decision and whether they will adopt the decision for the entire USA, or limit its applicability to the 6th Circuit.
USCIS has begun returning H-1B application for cases that were not lucky enough to be picked for the random audit. If you do not recall, USCIS received more application in the first week of H-1B availability than it had visas for. Therefore, USCIS pooled all applications received during the first 5 business days and conducted a random audit to select the requisite number of cases.
We began receiving receipts within 2 weeks of the end of the lottery. However, it has taken until today, more than a month after the lottery was conducted for USICS to send back petitions that were not selected. At this point we would certainly state that if you have not heard about your petition the most likely scenario is that your application was not accepted and you will be receiving it back shortly.
The June Visa Bulletin has been released by the Department of State. EB-2 numbers for India remain at Sept. 1, 2004. This is in line with the predictions of the DOS that these numbers would not progress at all for India in the near future. For China the date is now July 15, 2008. A modest movement of about 2 months for China.
For EB-3 numbers most countries are now up to Sept. 1, 2008, a big jump. However, the Department of State cautions that once more demand surfaces, they will stop making such big jumps in the EB-3 numbers. India is at January 8, 2003 and the Philippines is at Sept. 22, 2006 – both of which are big jumps as well.
Rep. Goodlatte (R) held a press conference this morning regarding immigration reform efforts underway in the Senate. While he stated that he welcomed such efforts, he also stated that the House Judiciary committee would be looking at Immigration differently. The House will be dividing the legislation into separate bills so that Representatives can review and look at each aspect of immigration reform separately, as opposed to having one take it or leave it bill. According to Rep. Goodlatte, the first two bills will be introduced tomorrow and will concern the agricultural worker program and mandatory e-verify provisions. It should also be noted that Rep. Goodlatte does not support providing legal status to the thousands of people in the US without status at this time.
Considering Rep. Goodlatte’s previous stands on immigration, and considering the fact that the Senate, at this time, most likely will not consider piecemeal legislation, I think that this move makes it less likely that we will actually see immigration reform anytime soon. While I sincerely hope that I am wrong, and I hope that this can be worked out, I am not as hopeful as I was even yesterday. The primary issue is the fact that when each piece is separate, there is no guarantee that once one part is passed, the other parts will also be passed. In other words, if the House passes mandatory e-verify, what is to stop Republicans at that point from voting against the pathway to citizenship, even if they previously agreed to support it? I really see this move more as a way to end the immigration debate rather than as a way to move it forward. The only hope I see is that there can be some compromise whereby the senate agrees to modify the bill somewhat in return for having it pass as one bill. At this point, only time will tell.
It is important to keep in mind that the bill introduced in the Senate the other day is just that, a bill. Until it is passed by both the House and Senate and signed by the President, it is not the law. While it is somewhat instructive to discuss what is in the bill, and what it all means, it is much to early in the process to be planning your life around what may happen.
Why do I say this? Primarily because the House has yet to weigh in on the bill and what they have stated so far gives me cause to pause. What have they stated? That they are optimistic that the House and Senate can get together and pass a bill. Sounds good so far right? They then go on to say that in the coming days they will put forth their own bill and work with the Senate to iron out any differences. This is where I have problems. The Senate was barely able to compromise on what they have. If the House now changes things, even moderately, I think that things could end in an impasse. While time will tell, until the House version is out and vetted, I would not plan my life around what may happen in this regard.