Wake Forest Law Review
9Nov

Broken Promises: The Afghan Special Immigrant Visa Program and Refugee Crisis

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By Laura Merriman

Over the twenty-year war in Afghanistan, tens of thousands of Afghan nationals risked their lives to assist the US.[1]  In exchange, the US offered them a humanitarian visa known as a Special Immigrant Visa (“SIV”), to safely resettle in the US as lawful permanent residents.[2]  However, as the US began withdrawing from Afghanistan, the State Department estimated only 15,000 Afghans had received SIV status.[3]  Despite delayed efforts to streamline the process, the US ultimately evacuated thousands of Afghanis before they completed the SIV process.[4]  Now the Biden administration is faced with determining how to quickly resettle the 53,200 Afghanis waiting on eight military bases across the US using a resettlement system crippled by the previous administration.[5] 

In 2006, Congress authorized fifty annual SIVs for Iraqi and Afghani interpreters.[6]  Due to increased threats of kidnapping and violence,[7] Congress expanded the program, first for Iraqis, then for Afghanis  with the Afghan Allies Protection Act of 2009 (“AAPA”).[8]  The AAPA increased the number of annual SIVs to 1,500 and allowed any Afghan employed by the US for one year, later amended to two years, to apply for SIV status.[9]  In addition to faithful service, SIV applicants need evidence of an “ongoing serious threat as a consequence” of their employment.[10]  If approved, the individual and their family are admitted to the US as lawful permanent residents and receive the same benefits as refugees including furnished housing, public benefits, and assistance finding  jobs.[11]

The SIV application is a fourteen-step process involving at least six different US agencies, and the majority of the process is completed in Afghanistan.[12]  The State Department has broken the process into five stages.[13]  During stage one, the applicant applies for Chief of Mission approval at the US embassy in Kabul.[14]  This stage  requires identification documents , verification of employment, letters of recommendation, statement of threat, and a lengthy background check.[15]  If approved, the applicant moves to stage two and files a I-360 petition with United States Citizenship and Immigration Services.[16]  Once  approved, the National Visa Center contacts the applicant to begin stage three, the visa application.[17]  The applicant and the family then prepare for stage four, the visa interview.[18]  Finally, the applicant reaches stage five, travel to the US.[19]

Despite congressional efforts, the SIV process is plagued with delays.[20]  In an attempt to decrease processing time, Congress amended the AAPA to require the State Department to complete review of an SIV application within nine months.[21]  However, a lack of staffing and a central database identifying eligible Afghans has led to an average processing time of thirteen months (not counting the time in between stages) with some applications taking over two years.[22]  Processing times continued to increase during the Trump administration and were further compounded by COVID-19.[23]

During the final phase of  withdrawal from Afghanistan, the Biden administration and Congress tried to further streamline the process as Afghanis faced increased threats from the Taliban.[24]  Congress lowered the service requirement to one year, waived certain paperwork, and added 8,000 additional SIVs.[25]  In late July, Biden launched “Operation Allies Refuge” to evacuate Afghan SIV applicants to Fort Lee to complete the final steps of the process, starting with 700 SIV applicants and their families (2,500 people in total).[26]

However, these efforts came too late, and the Taliban’s rapid advance in August left mass evacuation as the only option.[27]  The US evacuated 124,000 Afghans in its final days, sending thousands to third-party countries to finish their visa applications and 67,000 to eight US military bases across the country.[28]  Those lucky enough to qualify for SIVs will be able to complete the process from the bases and, once approved, begin their new life in the US.[29]  However, those not eligible for SIVs are in immigration limbo. Having entered the US with humanitarian parole, a temporary legal status, many Afghans have no clear path to a permanent legal status.[30]  Absent congressional action, their only option is to apply for asylum and join the 400,000 other asylum seekers waiting for a determination.[31]

As the dust settles, the US must now efficiently resettle 53,200 Afghanis with a resettlement system still recovering from the previous administration’s policies.[32]  In fiscal year 2017, the US refugee resettlement program was prepared to resettle 110,000 refugees in one year.[33]  However, due to the  85% reduction in refugee admissions during the Trump administration, that infrastructure no longer exists.[34]  With lower numbers of arrivals, resettlement agencies cut staff and paused or closed offices to stay afloat.[35]  As a result, over one hundred refugee resettlement offices closed between 2016 and 2020.[36]

Today, resettlement agencies are still rebuilding and have limited capacity.[37]  The current system requires a local agency office to resettle refugees by finding housing and assisting with benefits and job applications.[38]  Many popular locations for Afghan SIVs such as California, Maryland, and Virginia are already at capacity.[39]

In response, the Biden administration has capitalized on public support of Afghan refugees by enlisting private citizens to fill  the gaps while resettlement agencies rebuild.[40]  The State Department recently authorized a new nonprofit, the Community Sponsorship Hub, to vet and train private citizens to host Afghan families in their community.[41]  This new program would allow sponsor circles of five individuals to fill the role traditionally held by the resettlement agencies.[42]  The circles must complete background checks, training, raise funds to support the evacuee family for ninety days ($2,275 per refugee), and create a plan for the family.[43]  

Overall, resettlement agencies are in favor of his new initiative because it is an opportunity for Americans to directly engage with Afghan families by helping them integrate into the community.[44]  Additionally, it increases the number of locations available since SIVs and refugees will not be limited to only cities with resettlement agencies.[45]  With the added assistance, agencies are hopeful that they will be able to quickly resettle the Afghan evacuees.[46]

[1] Michelle Hackman, How Do the Highly Sought-After Special Immigrant Visas for Afghans Work?, Wall St. J. (Aug. 23, 2021, 2:08 PM), https://www.wsj.com/articles/how-does-the-14-step-visa-program-for-foreign-interpreters-work-11629414605?mod=article_inline.

[2] Id.

[3] Id.

[4] Molly Hennessy-Fiske, Why Are Most Afghan Evacuees Still Housed at U.S. Military Camps?, L.A. Times, https://www.latimes.com/world-nation/story/2021-10-30/why-have-afghan-refugees-been-held-for-months-on-u-s-bases (Nov. 1, 2021, 2:54 AM).

[5] Id.

[6] National Defense Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163, § 1059(c)(1), 119 Stat. 3136, 3444 (codified at 8 U.S.C. § 1101).

[7] Alissa J. Rubin, U.S. Expands Visa Program for Iraqis, N.Y. Times (July 25, 2008), https://www.nytimes.com/2008/07/25/world/middleeast/25visa.html; Hackman, supra note 1.

[8] Chapter 9 – Certain Afghan Nationals, U.S. Citizenship & Immigr. Servs. (Oct. 29, 2021), https://www.uscis.gov/policy-manual/volume-6-part-h-chapter-9 [hereinafter Certain Afghan Nationals]; see also Daniel F. Runde & Elena Méndez Leal, The Case for Expediting Special Immigrant Visas amid a Transition of Power in Afghanistan, Ctr. for Strategic & Int’l Stud. (Aug. 16, 2021), https://www.csis.org/analysis/case-expediting-special-immigrant-visas-amid-transition-power-afghanistan; Hennessy-Fiske, supra note 4.

[9] Id.; Afghan Allies Protection Act of 2009, Pub. L. No. 111-8, § 602(b)(2)(A)(i)–(ii),123 Stat. 807, 807 (codified at 8 U.S.C. § 1101).

[10] Afghan Allies Protection Act of 2009, § 602(b)(2)(A)(iii)–(iv).

[11] Id. § 602(b)(8)–(9); Hackman, supra note 1.

[12] Runde & Leal, supra note 8.

[13] Id.

[14] Special Immigrant Visas for Afghans – Who Were Employed by/on Behalf of the U.S. Government, Bureau of Consular Affs., U.S. Dep’t of State, https://travel.state.gov/content/travel/en/us-visas/immigrate/special-immg-visa-afghans-employed-us-gov.html#step1 (last visited Nov. 9, 2021) [hereinafter Special Immigrant Visas for Afghans].

[15] Id.; Runde & Leal, supra note 8.

[16] Special Immigrant Visas for Afghans, supra note 14.

[17] Id.

[18] Id.

[19] Id.

[20] Runde & Leal, supra note 8.

[21] Fact Sheet: Overview of the Special Immigrant Visa Programs, Nat’l Immigr. F. (June 22, 2021), https://immigrationforum.org/article/fact-sheet-overview-of-the-special-immigrant-visa-programs/ [hereinafter Fact Sheet].

[22] Review of the Afghan Special Immigrant Visa Program, Office of Inspector Gen., U.S. Dep’t of State, (June, 2020), https://www.stateoig.gov/system/files/aud-mero-20-35-highlights.pdf; Runde & Leal, supra note 8; Fact Sheet, supra note 21.

[23] Hackman, supra note 1.

[24] Id.

[25] Id.; Runde & Leal, supra note 8.

[26] C. Todd Lopez, Fort Lee Chosen as First Stop in U.S. for Relocating Afghans Under Operation Allies Refuge, U.S. Dep’t of Def. (July 19, 2021), https://www.defense.gov/News/News-Stories/Article/Article/2699147/fort-lee-chosen-as-first-stop-in-us-for-relocating-afghans-under-operation-alli/.

[27] Hennessy-Fiske, supra note 4.

[28]Id.; Ben Fox & Ellen Knickmeyer, US Expects to Admit More than 50,000 Evacuated Afghans, AP News (Sept. 3, 2021), https://apnews.com/article/migration-1a704e14f08d0bdf872d84b8e96fd2bf.

[29] Camilo Montoya-Galvez, Afghan Evacuees Face Uncertain Legal Status as They Prepare to Leave U.S. Bases, CBS News (Oct. 7, 2021, 10:10 AM), https://www.cbsnews.com/news/afghanistan-evacuees-legal-status-asylum-us-bases/.

[30] Id.

[31] Id.

[32] Hennessy-Fiske, supra note 4.

[33] Priscilla Alvarez, Resettlement Offices Close as Fewer Refugees Are Allowed into the US, CNN (Sept. 20, 2019, 6:02 AM), https://www.cnn.com/2019/09/20/politics/refugee-resettlement/index.html.  

[34] Julie Watson, Broken by Trump, US Refugee Program Aims to Return Stronger, AP News (Jan. 27, 2021), https://apnews.com/article/joe-biden-politics-immigration-coronavirus-pandemic-0a649290b8a6628900598d4324c3d72b.

[35] Id.

[36] Id.

[37] Watson, supra note 34.

[38] Priscilla Alvarez, White House Makes Massive Change to Resettlement Program to Help Afghan Refugees, CNN, https://www.cnn.com/2021/10/23/politics/afghan-refugees-private-resettlement-veterans/index.html (Oct. 23, 2021, 4:13 PM).

[39] Hennessy-Fiske, supra note 4.

[40] Alvarez, supra note 38.

[41] Conor Finnegan, US Launches New Program to Allow Private Americans to Sponsor, Resettle Afghan Refugees, ABC News (Oct. 25, 2021, 1:09 PM ), https://abcnews.go.com/Politics/us-launches-program-private-americans-sponsor-resettle-afghan/story?id=80769922.

[42] Id.

[43] Id.

[44] Id.

[45] Alvarez, supra note 38.

[46] Finnegan, supra note 41.

Post image by United Nations Photo on Flickr

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27May

Niz-Chavez v. Garland: Pereira Groundhog Day

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By: Ashley Oldfield (Wake Forest School of Law alumnus)

In Niz-Chavez v. Garland,[1] the Supreme Court of the United States addressed, for the second time, what constitutes a notice to appear under 8 U.S.C. § 1229(a)(1).[2] In doing so, the Court may have also resurrected challenges to an immigration court’s jurisdiction which first arose following the Court’s decision in Pereira v. Sessions.[3]

In Pereira, the Court answered a “simple, but important, question of statutory interpretation”: does a putative “notice to appear” that does not specify the time and place of a removal hearing trigger the stop-time rule with regard to cancellation of removal?[4] The Court’s answer? A resounding “no.”[5] In order to trigger the stop time rule under § 1229b(d)(1), a notice must include all of the statutorily required information specified in § 1229(a)(1), including the time and place of the removal proceedings. Absent that information, such a notice is not actually a “notice to appear” at all.[6]

This commonsense decision, however, created an uproar in the immigration world. Immigration advocates saw in Pereira an opportunity to challenge an immigration court’s jurisdiction.[7] They argued that since jurisdiction only vests with the immigration court when a valid charging document (e.g., a notice to appear) is filed, and a notice to appear lacking time-and-date information is not valid, then the filing of an invalid notice to appear fails to vest jurisdiction with the immigration court.[8] Relying on this argument, immigration advocates moved to terminate active removal proceedings, challenge in absentia removal orders, and dismiss illegal reentry charges.[9]

Unsurprisingly, the Board of Immigration Appeals (the “BIA”) rejected this argument. In Matter of Bermudez-Cota,[10] the BIA distinguished Pereira, reasoning that it did not apply where, as in the case at hand, the noncitizen was “properly served with both a notice to appear and a subsequent notice of hearing,” such that he was “sufficiently informed to attend his hearings.”[11] The BIA also insisted that Pereira’s holding was “narrow” and thus only applied when the stop-time rule was at issue.[12] Furthermore, the BIA found support in the regulation applicable to vesting jurisdiction, which did not mandate time-and-date information.[13] Finally, relying on pre-Pereira decisions from the Fifth, Seventh, Eighth, and Ninth Circuits, the BIA determined “that a two-step notice process is sufficient to meet the statutory notice requirements” and “vest[] an Immigration Judge with jurisdiction over the removal proceedings.”[14] Since Bermudez-Cota, the majority of circuits have also rejected Pereira-based jurisdictional challenges, albeit for varying reasons.[15] Furthermore, in Matter of Mendoza-Hernandez,[16] the BIA, again distinguishing Pereira, expressly held that service of a second document with time-and-place information satisfies notice requirements and triggers the stop-time rule.[17] 

In Niz-Chavez, the Court, in an opinion written by Justice Neil Gorsuch, addressed the two-step notice process head-on. There, the government had sought to initiate removal proceedings against Mr. Niz-Chavez by serving him with a document entitled “Notice to Appear,” but which lacked the time and place for the hearing.[18] The government later sent Mr. Niz-Chavez a second document that included the previously missing information, and he appeared at his hearing and was found removable.[19] Following the Court’s decision in Pereira, Mr. Niz-Chavez asserted that the notices he received were insufficient to trigger the stop-time rule, and thus, having now accrued the required period of continuous presence, he should be eligible for cancellation of removal.[20] The government responded that the second document completed the notice to appear and consequently triggered the stop-time rule.[21]

The Court, in a 6:3 decision, rejected this argument, holding that a notice to appear sufficient to trigger the stop-time rule is a single document, which must include all of the information listed in § 1229(a)(1).[22] Much of the Court’s decision hinged on the statute’s use of the indefinite article “a” before the word “notice.”[23] While the government and the dissent argued that “a” could precede “a single thing that can be delivered in multiple installments,”[24] the Court concluded that Congress’s use of “a” here indicated a single notice delivered at a discrete time, similarly to how Congress used indefinite articles before other case-initiating pleadings, such as a civil complaint or an indictment, which are never delivered by installment.[25]

The Court then found support for the single notice requirement in several related statutory provisions: 8 U.S.C. § 1229(e)(1), which provides “special rules the government must follow when it seizes [a noncitizen] at a sensitive location”; 8 U.S.C. § 1229a(b)(7), which speaks to a noncitizen’s ineligibility for relief under certain circumstances; and 8 U.S.C. § 1229(a)(2), which applies when the government wishes to change the noncitizen’s hearing date.[26] Each of these provisions refers to a notice of some type, pairs an article with a singular noun, and seems to contemplate a discrete document.[27]

Turning next to the statute’s history for support, the Court noted that under a previous law, removal proceedings were initiated by “an order to show cause” and that the law expressly permitted the government to specify the time and place for the hearing “in the order to show cause or otherwise.”[28] Congress’s decision not to include “or otherwise” in § 1229(a)(1) indicated that it intended for the government to no longer have the leeway to provide time and place information in a later document, but must instead include it in the notice to appear.[29]

Finally, the Court addressed, with little sympathy, the policy arguments advanced by both the government and the dissent. The Court rejected the idea that the administrative inconvenience of including time and place information in a notice to appear justified allowing the government “to send a person who . . .  may be unfamiliar with English and the habits of American bureaucracies [] a series of letters[] . . . over the course of weeks, months, maybe years, each containing a new morsel of vital information.”[30] As for the dissent’s speculations regarding disadvantages to noncitizens, the Court found these both off the mark and irrelevant.[31] In short, neither administrative inconvenience nor hypothetical disadvantages warranted disregarding the plain statutory command.[32]

Where does this decision leave noncitizens seeking to use Pereira to challenge an immigration court’s jurisdiction? Although the Court did not directly address jurisdiction issues in Niz-Chavez,[33] the decision upends the BIA’s rationale for rejecting Pereira-based jurisdiction arguments.

First, the BIA can no longer argue that Pereira does not apply where the noncitizen was “properly served with both a notice to appear and a subsequent notice of hearing,” because those are the precise facts found in Niz-Chavez.[34] Second, contrary to the BIA’s assertion that Pereira’s holding was “narrow,” the Court indicated that its holding has implications outside of the stop-time rule, explaining that a notice to appear “serves as the basis for commencing a grave legal proceeding”[35] and that references to a “notice to appear” in other statutory provisions refer to the same “specific document in which the government can (and must) ‘include’ the required certification.”[36] Third, the Court explained that “pleas of administrative inconvenience and self-serving regulations never ‘justify departing from the statute’s clear text.’”[37] Finally, Niz-Chavez completely forecloses the two-step notice process championed by the BIA, making crystal clear that a “notice to appear” is a single document containing all of the information listed in § 1229(a)(1).[38]

Thus, Niz-Chavez presents another opportunity to challenge an immigration court’s jurisdiction. After all, “if men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.”[39]

[1] 2021 U.S. LEXIS 2232 (2021).

[2] Id. at *7–8. This “seemingly simple rule has generated outsized controversy” because service of a notice to appear on a noncitizen triggers the stop-time rule, which stops the clock on a noncitizen’s period of continuous presence in the country. Id. at *7 (citing 8 U.S.C. § 1229b(d)(1)). An otherwise removable noncitizen must accrue ten years of continuous presence in the U.S. in order to qualify for cancellation of removal and remain in the country. Id. at *6–7 (citing 8 U.S.C. § 1229b(b)(1)). Thus, what qualifies as a notice to appear sufficient to trigger the stop-time rule may have life-altering implications for some noncitizens.

[3] 138 S. Ct. 2105 (2018).

[4] Id. at 2113. By 2018, “almost 100 percent” of notices to appear served in the previous three years omitted time-and-date information. Id. at 2111. The government, however, asserted that these initial notices were sufficient to trigger the stop-time rule.

[5] Id. at 2110.

[6] Id.

[7] See, e.g., Kit Johnson, Pereira v. Sessions: A Jurisdictional Surprise for Immigration Courts, 3 Colum. Hum. Trs. L. Rev. Online 1, 2 (2018).

[8] Id. at 2–3.

[9] See generally Dan Kesselbrenner et al., Nat’l Immigration Project of the Nat’l Lawyers Guild & the Immigrant Def. Project, Practice Advisory: Challenging the Validity of Notices to Appear Lacking Time-and-Place Information (2018). For a discussion of Pereira-based challenges to indictments for illegal reentry after deportation, see Ashley Oldfield, Note, Pereira v. Sessions: The Supreme Court’s Call for Common Sense, 55 Wake Forest L. Rev. 415 (2020).

[10] 27 I. & N. Dec. 441 (B.I.A. 2018). 

[11] Id. at 443. In Pereira, the noncitizen did not receive the notice of hearing and was ordered deported in absentia. Pereira, 128 S. Ct. at 2112.

[12] 27 I. & N. Dec. at 443.

[13] Id. at 445.

[14] Id. at 447.

[15] See Goncalves Pontes v. Barr, 938 F.3d 1, 6 (1st Cir. 2019); Banegas Gomez v. Barr, 922 F.3d 101, 105 (2d Cir. 2019), cert. denied, 140 S. Ct. 954 (2020); Nkomo v. Attorney Gen. of the U.S., 930 F.3d 129, 133–34 (3d Cir. 2019), cert. denied, 140 S. Ct. 2740 (2020); United States v. Cortez, 930 F.3d 350, 362–65 (4th Cir. 2019); Pierre-Paul v. Barr, 930 F.3d 684, 690–91 (5th Cir. 2019), cert. denied, 2020 U.S. LEXIS 2490 (2020); Hernandez-Perez v. Whitaker, 911 F.3d 305, 311–15 (6th Cir. 2018); Ortiz-Santiago v. Barr, 924 F.3d 956, 962–64 (7th Cir. 2019), reh’g denied; Ali v. Barr, 924 F.3d 983, 986 (8th Cir. 2019); Karingithi v. Whitaker, 913 F.3d 1158, 1159 (9th Cir. 2019), cert. denied, 140 S. Ct. 1106 (2020); Martinez-Perez v. Barr, 947 F.3d 1273, 1278–79 (10th Cir. 2020); Perez-Sanchez v. U.S. Attorney Gen., 935 F.3d 1148, 1154 (11th Cir. 2019).

[16] 27 I. & N. Dec. 520 (B.I.A. 2019).

[17] Id. at 535.

[18] Niz-Chavez v. Garland, 2021 U.S. LEXIS 2232, at *9 (2021) (No. 19-863).

[19] Id. at *29–30 (Kavanaugh, J., dissenting).

[20] Id. at *31.

[21] Id.

[22] Id. at *27 (majority opinion).

[23] Id. at *10–17.

[24] Id. at *40 (Kavanaugh, J., dissenting).

[25] Id. at *13–16 (majority opinion).

[26] Id. at *17–20.

[27] Id.

[28] Id. at *20.

[29] Id.

[30] Id. at *23–25.

[31] Id. at *25–27.

[32] Id. at *26.

[33] The Court’s failure to address jurisdiction does not indicate that it accepted the immigration court’s jurisdiction. See Oldfield, supra note 10, at 436–37.

[34] See Niz-Chavez, 2021 U.S. LEXIS 2232, at *29–30 (Kavanaugh, J., dissenting).

[35] Id. at *15 (majority opinion).

[36] Id. at *18.

[37] Id. at *23 (citing Pereira v. Sessions, 138 S. Ct. 2105, 2109 (2018)).

[38] See generally Niz-Chavez, 2021 U.S. LEXIS 2232.

[39] Id. at *27.

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12Feb

New ABA Program Helps Immigrants Navigate Daunting Government System

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By Alexandra N. Meyer

A new American Bar Association program aims to better prepare immigrants navigating one of America’s most time-consuming and expensive government systems. Unlike most government agencies, the U.S. Citizenship and Immigration Services, (“USCIS”), is fee-funded and relies almost exclusively on fees to operate.[1] In fact, service fees account for approximately 97 percent of the USCIS’s budget.[2] Last summer, the USCIS announced that it aimed to increase a number of immigration and naturalization benefit request fees by a weighted average of 20 percent.[3] The agency reasoned that “current fees do not recover the full cost of providing adjudication and naturalization services”[4] and would leave the agency underfunded by approximately $1 billion per year.[5] Luckily, after two preliminary injunctions preventing the implementation of the fee increases, the government filed a motion for voluntary dismissal of its appeal[6] of Immigrant Legal Research Center v. Wolf.[7]

Although fees not increasing (for the time being) is certainly something to celebrate, issues with the current fee-based system persist. The current fees for many of the most popular forms remain high.[8] For example, an I-485 “Application to Register Permanent Residence or Adjust Status” retains its $1,140 fee; an N-400 “Application for Naturalization” costs $640; and an N-600 “Application for Certificate of Citizenship” will set an individual back $1,170.[9] In addition, both the I-485 and N-400 forms require applicants to shell out an extra $85 for a biometrics fee.[10] Clearly, the costs of sending in even a single application can be incredibly high. These costs quickly multiply for families sending multiple forms—one for each family member—to the USCIS for processing.

To the USCIS’s credit, a fee-waiver program exists. However, the program is arguably inadequate, as the agency has narrowed eligibility and declined hundreds of thousands of applications for fee waivers.[11] At one time, nearly any form could be accompanied by a fee-waiver application. Unfortunately in 2007, the USCIS created a “limited list that prohibited two-thirds of the application types from the possibility of a fee waiver.”[12] In 2016, the USCIS approved more than 627,000 fee-waiver applications.[13] A year later, in 2017, the agency only approved 285,000 applications.[14]

Even if an applicant can afford the filing fees, the complexity of the forms may force additional, unanticipated costs. Theoretically, the USCIS lists the steps of the application process with instructions on how to fill out each form on its website, but in practice the website is difficult to navigate and understand, particularly for applicants who speak English as a second language.[15] Once an individual finds the correct form, they must fill it out correctly according to the USCIS’s standards—a task that seems designed to promote failure. For example, in recent years, the I-485 form has grown from six pages with an accompanying eight pages of instructions to twenty pages with forty-five pages of instructions.[16]

Forms also expire with little to no notice, only to be replaced with almost identical new forms.[17] Applications already mailed with the now obsolete form variants are rejected.[18] Furthermore, forms can be rejected or denied if any field is left blank, regardless of its applicability. For example, applications have been rejected for listing three siblings when there is space on the application for four or not including an address for a deceased parent.[19] Perhaps the most ridiculous reason for form rejection are typographical absurdities, like an applicant stating “NA” instead of “N/A” when a field is not applicable.[20]

Rejected applications not only serve to frustrate applicants, but add to the costs of immigration and naturalization. Rejections may not be appealed.[21] The applicant must resubmit a corrected form.[22] Every time an applicant submits a new form for review, the “USCIS requires new fees with any new benefit request,” even if the applicant is submitting the same form type with only minimal corrections.[23] The USCIS may even keep the rejected application fee.[24]

Hiring an immigration lawyer certainly helps to prevent issues that may arise during the application process. In fact, the nitpickiness of the USCIS has arguably made counsel a necessity. An immigration lawyer knows exactly what forms are applicable to a case and can help ensure that forms are properly completed according to the USCIS’s standards.[25] Although the thought of paying legal fees in addition to the USCIS’s form fees may deter some from seeking legal advice, the cost of legal fees are often comparable to the USCIS’s form fees.[26] Hiring an immigration attorney may even save the applicant money in the long run if the alternative is to resubmit rejected applications numerous times.[27]

Despite the benefits of hiring an immigration attorney to help with the immigration and naturalization process, reality is many individuals cannot afford form filing fees, let alone additional legal fees.[28] The American Bar Association’s online program, ABA Free Legal Answers, seeks to narrow this “justice gap.”[29] The service, which expanded to include immigration law in January 2021, allows users to ask volunteer attorneys legal questions regarding deportation, green cards, Deferred Action for Childhood Arrivals, (“DACA”), and naturalization.[30] Unfortunately, individuals can only ask up to three questions per year, but for someone previously unable to ask any questions, this is an improvement to the situation.[31] At first glance, it’s also difficult to ascertain the parameters of asking questions, but it seems unlikely that an individual can submit an entire form for review. Still, the program provides attorneys with the opportunity to remind applicants not to leave blank fields in their forms, or to use “N/A” instead of “NA,” however ridiculous that necessary advice may seem.

[1] USCIS Adjusts Fees to Help Meet Operational Needs, U.S. Citizenship & Immigr. Servs., (Jul. 31, 2020), https://www.uscis.gov/news/news-releases/uscis-adjusts-fees-to-help-meet-operational-needs#:~:text=Unlike%20most%20government%20agencies%2C%20USCIS,97%25%20of%20USCIS’%20budget.

[2] Id.

[3] U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 85 Fed. Reg. 46,788, 46,788 (Aug. 3, 2020).

[4] Id.

[5] U.S. Citizenship & Immigr. Servs., supra note 1.

[6] Featured Issue: Changes to USCIS Fee Schedule, Am. Immigr. Laws. Ass’n (Jan. 29, 2021), https://www.aila.org/advo-media/issues/all/changes-to-uscis-fee-schedule.

[7] No. 20-CV-05883, 2020 WL 5798269 (N.D. Cal. Sept. 29, 2020).

[8] See Most Common USCIS Immigration Forms, Nat’l Notary Ass’n, https://www.nationalnotary.org/immigration/knowledge-center/uscis-immigration-forms (last visited Feb. 12, 2021).

[9] Dep’t of Homeland Sec., U.S. Citizenship & Immigr. Servs., Form G-1055: Fee Schedule 4, 11 (2020), https://www.uscis.gov/sites/default/files/document/forms/g-1055.pdf.

[10] Id.

[11] Juan Esteban Bedoya, Price Tags on Citizenship: The Constitutionality of the Form N-600 Fee, 96 N.Y.U.L. Rev. 1022, 1027 (2020).

[12] Peggy Gleason and Melissa Rodgers, Status of USCIS Fee Waiver Changes–October 2, 2020, Immigrant Legal Res. Ctr., https://www.ilrc.org/sites/default/files/resources/pa_fee_waiver_10.9.20.pdf.

[13] Manuel Madrid, Border Wall or No, Immigrants Will Soon Have to Scale a Paywall, Am. Prospect (Jan. 23, 2019), https://prospect.org/civil-rights/border-wall-no-immigrants-will-soon-scale-paywall/.

[14] Id.

[15] See Filing Guidance, U.S. Citizenship & Immigr. Servs. (Oct. 25, 2019), https://www.uscis.gov/forms/filing-guidance.

[16] Catherine Rampell, Trump Didn’t Build His Border Wall with Steel. He Built It Out of Paper, Wash. Post (Oct. 29. 2020), https://www.washingtonpost.com/opinions/2020/10/29/trump-immigration-daca-family-separation/?arc404=true.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Chapter 6-Submitting Requests, U.S. Citizenship & Immigr. Servs. (Feb. 10, 2021), https://www.uscis.gov/policy-manual/volume-1-part-b-chapter-6.

[22] Id.

[23] Id.

[24] Filing Fees, U.S. Citizenship & Immigr. Servs. (Feb. 1, 2021), https://www.uscis.gov/forms/filing-fees (select “Refund Policy” at the bottom of the webpage).

[25] Liz Daneu, Is an Immigration Lawyer Worth the Cost?, Alllaw.com, https://www.alllaw.com/articles/nolo/us-immigration/lawyer-worth-cost.html (last visited Feb. 12, 2021).

[26] Id.

[27] Id.

[28] See Farida Jhabvala Romero, Immigrants Seek Stability of U.S. Citizenship But Cost Is Often a Barrier,  KQED (Apr. 12, 2018), https://www.kqed.org/news/11660853/immigrants-seek-stability-of-u-s-citizenship-but-cost-is-often-a-barrier.

[29] Tali K. Albukerk, “ABA Free Legal Answers” Connects Clients and Pro Bono Attorneys Online, Am. Bar Ass’n (Apr. 13, 2020), https://businesslawtoday.org/2020/04/aba-free-legal-answers-connects-clients-pro-bono-attorneys-online/.

[30] Free Legal Answers Expands to Help Immigrants, Veterans, Am. Bar Ass’n (Jan. 25., 2021), https://www.americanbar.org/news/abanews/aba-news-archives/2021/01/free-legal-answers/.

[31] Id.

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20Jan

Sharing is Caring: H-2B Visa Portability as the Lasting Solution to Temporary Problems

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Comments Off on Sharing is Caring: H-2B Visa Portability as the Lasting Solution to Temporary Problems

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Makenzie Taylor

Each year, 66,000 H-2B visa guest workers enter the United States to perform nonagricultural temporary and seasonal jobs[1] in industries such as forestry, landscaping, hospitality, seafood processing, and construction.[2] The workers typically perform “relatively low-skilled” jobs and often work in “geographic areas where the number of available U.S. workers is limited.”[3] They comprise less than 0.001% of total U.S. employment.[4]

Far from reducing job availability for U.S. workers, the H-2B program is essential to many smaller and seasonal businesses.[5] It “supplies a source of supplementary labor for [physically demanding] jobs that U.S. workers are unwilling to take.”[6] H-2B workers provide a “legal, stable and motivated work force,” allowing businesses to grow and create more jobs for Americans as well.[7] U.S. workers, though cheaper to hire, are not always available, interested, or dependable.[8]

By contrast, employers have reported that H-2B employees are consistently reliable and hard-working, and their productivity helps offset the cost of recruiting and hiring them.[9] H-2B employment also correlates with higher U.S. employment rates.[10] Without the program, many employers would go unstaffed, close their doors, and cause “lost income for American businesses, and lost tax revenues” for the States.[11]

The Problem

Despite these benefits, the program’s cumbersome nature discourages employer participation: “[T]he system [is] complicated, time-consuming, costly and inefficient.”[12] Petitioning employers must prove “[t]here are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.”[13] They must make “extensive efforts to recruit U.S. workers,” file documentation with four different government agencies, and foot the bill for guest workers’ visas and transportation costs.[14]

Once the 66,000 annual cap is reached, the U.S. Citizenship and Immigration Services (USCIS) stops accepting petitions and will not issue additional visas until the next year.[15] This means that even after expending significant time and money into the petition process, many employers fail to secure their necessary workforce and are in a worse position than before they applied. Even one small mistake in the “complicated application process can mean delayed approval or visas denied—both extremely costly for employers.”[16] The uncertainty involved in the petition process incentivizes employers to petition for more H-2B workers than they actually need, “just in case their business takes off or some of their workers quit after the quota is hit.”[17] Employers who do so, and whose petitions are approved, further decrease the likelihood of other employers receiving their necessary visas.

Employers may use the premium processing track to “expedite the adjudication of certain forms,” but doing so costs an additional fee of $1,500 per petition.[18] Employers are also financially responsible for guest workers’ roundtrip transportation to and from their home countries, daily meals and lodging, and for each “visa, visa processing, and other related fees.”[19] Finally, businesses often require consultants and lawyers to navigate the process, adding to their costs.[20]

Each employer individually shoulders the full financial burden of this process, because H-2B workers may not “switch employers during their visa terms.”[21] In order for a guest worker to continue working for a second employer after her original visa term ends, the putative secondary employer must file and receive approval for a petition “requesting classification and an extension of the alien’s stay in the United States.”[22] H-2B workers are required to leave the States at the end of their authorized period of stay,[23] so if the secondary petition has not yet been granted, the worker must travel home before turning around and returning to the States for the second job. This unnecessarily duplicative process only adds to employer cost and restricts the employees’ access to stable employment.

The Solution

Visa portability, whereby an H-2B worker may transfer her employment from one authorized employer to another without an intermediate petition process, is the best solution to this problem.[24] Portability would encourage cost-spreading, allowing employers to share in recruitment, visa, and transportation expenses for shared workforces. For example, Colorado’s Steamboat ski resort hires H-2B employees as dishwashers for its winter season, from late November to April.[25] Lindy’s Seafood in Maryland hires H-2B workers as crab pickers from April through December.[26] Visa portability would allow Steamboat to send its H-2B workers to Lindy’s at the end of the ski season for the start of Lindy’s crab-processing season, as long as both companies proved a seasonal need for temporary workers and were approved by USCIS. Steamboat and Lindy’s could share the costs of the visa petition and travel expenses and provide workers with a longer term of employment. This would increase efficiency and make H-2B employment more affordable—benefitting both the workers and U.S. businesses.

The Department of Labor has already set the stage for this change by allowing for broader dissemination of job offer information.[27] It has instructed that job orders may be stored as electronic records in an electronic job registry, resulting in a “complete, real-time record of job opportunities for which H-2B workers are sought.”[28] H-2B employers could use a similar system to match approved employers with available employees who are already in the States.[29] Additionally, requiring H-2B workers to fulfill their contract with the petitioning employer before accepting a new job would assuage any employer fears of H-2B workers jumping to new employers upon arrival.[30]

Conclusion

The H-2B visa program is an essential supplement to the U.S. workforce and economy, enabling small- and mid-size businesses to successfully perform seasonal and temporary operations in essential industries. Far from taking jobs away from U.S. workers, H-2B employees comprise a small segment of the workforce and their employment correlates with higher U.S. worker employment. In order to increase the program’s feasibility for businesses and ease its burden on both employers and foreign workers, the best solution is a policy of visa portability. This solution would increase efficiency, reduce costs, and provide more stable employment for a crucial segment of the workforce.

[1] H-2B Temporary Non-Agricultural Workers, USCIS (May 29, 2020), https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2b-temporary-non-agricultural-workers.

[2] Kati L. Griffith, United States: U.S. Migrant Worker Law: The Interstices of Immigration Law and Labor and Employment Law, 31 Comp. Lab. L. & Pol’y J. 125, 135 (2009).

[3] Madeline Zavodny & Tamar Jacoby, The Economic Impact of H-2B Workers 4 (2010), https://www.uschamber.com/sites/default/files/documents/files/16102_LABR%2520H2BReport_LR.pdf.

[4] Id. at 23.

[5] Charles C. Mathes, Note, The Department of Labor’s Changing Policies Toward the H-2B Temporary Worker Program: Primarily for the Benefit of Nobody, 80 Fordham L. Rev. 1801, 1814 (2012).

[6] Id.

[7] Zavodny & Jacoby, supra note 3, at 10.

[8] See id. (explanation by a forestry contractor that he has “hired dozens and dozens of American workers. Only a handful have ever shown up for work. Of those, we have never had one last more than two days.”).

[9] Zavodny & Jacoby, supra note 3, at 10.

[10] Id. at 2.

[11] Mathes, supra note 5, at 1813. See also Suzanne Monyak, Trump to Suspend New Work Visas Through 2020, Law360 (June 22, 2020, 3:37 PM), https://www.law360.com/articles/1285526/trump-to-suspend-new-work-visas-through-2020 (reporting that in June 2020, President Trump restricted visas to “free up 525,000 jobs for Americans,” but he exempted food supply and seafood industry H-2B workers, evidencing the U.S. economy’s need for these workers and demonstrating that they do not compete with U.S. workers for jobs).

[12] Zavodny & Jacoby, supra note 3, at 20.

[13] Forms: H-2A, H-2B, and H-3 Visa, USCIS (Dec. 1, 2020), https://www.uscis.gov/forms/explore-my-options/h-2a-h-2b-and-h-3-visa.

[14] Zavodny & Jacoby, supra note 3, at 2.

[15] Zavodny & Jacoby, supra note 3, at 6.

[16] Id. at 20.

[17] Id. at 21.

[18] Premium Processing Fee Increase Effective Oct. 19, 2020, USCIS (Oct. 16, 2020), https://www.uscis.gov/news/premium-processing-fee-increase-effective-oct-19-2020.

[19] Fact Sheet #78F: Inbound and Outbound Transportation Expenses, and Visa and Other Related Fees under the H-2B Program, U.S. Dep’t of Labor, Wage and Hour Div. (2015), https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs78f.pdf.

[20] Zavodny & Jacoby, supra note 3, at 21. See also Griffith, supra note 2, at 136 (revealing the admission of some employers that “they opt out of the H-2 program entirely and hire undocumented workers because the ‘process is too expensive, taxing, and time-consuming’”).

[21] Griffith, supra note 2, at 135.

[22] 8 C.F.R. § 214.2 (h)(2)(i)(D) (2020).

[23] Fact Sheet #69: Requirements to Participate in the H-2B Program, U.S. Dep’t of Labor, Wage and Hour Div. (2009), https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs69.pdf.

[24] See Mathes, supra note 5, at 1812–13 (explaining that legislation was introduced in 2005 that allowed “temporary guestworkers to change employers without penalty,” but the bill was never voted on).

[25] Employment FAQ, Steamboat Ski & Resort Corp, https://www.steamboat.com/employment/faq (last visited Jan. 6, 2021).

[26] Job Opportunities, Lindy’s Seafood, Inc., https://www.lindysseafood.com/job-opportunities (last visited Jan. 6, 2021).

[27] Temporary Non-Agricultural Employment of H-2B Aliens in the United States, 77 Fed. Reg. 10038, 10128 (Feb. 21, 2012).

[28] Id.

[29] Mathes, supra note 5, at 1850.

[30] Id.

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