Children Left to Fend for Themselves in Immigration Court
The 6th Amendment right to attorney representation does not apply to immigration court proceedings, which are civil, not criminal. The recent influx of a large number of unaccompanied children at the border has led to many children, some as young as 3, being placed into immigration court proceedings. Although other areas of law provide for a representative to advocate on behalf of a child’s interest in court, there is currently no process for doing so in immigration court. The comments of Assistant Chief Immigration Judge Jack H. Weil recently brought increased attention to this issue when he explained in a deposition that children do go through the court process alone and unrepresented, stating: “I’ve taught immigration law literally to 3-year-olds and 4-year olds,” and continued, “It takes a lot of time. It takes a lot of patience. They get it. It’s not the most efficient, but it can be done.”
The Judge does not have any say in who ends up in his court room, and he is not to blame for the fact that resources have not been provided to better protect the interests of children who find themselves in immigration proceedings. Nonetheless, the public has become increasingly more aware that perhaps young children should not be left to fend for themselves in advocating in court opposite a Homeland Security attorney advocating for their removal from the U.S. On February 11, 2016, Senate Bill S.2540: Fair Day in Court for Kids Act of 2016 was introduced to mandate attorney representation for unaccompanied children. On February 26 a companion bill was introduced in the House of Representatives: H.R. 4646: Fair Day in Court for Kids Act of 2016. In the current election year in which even the most fundamental actions of the legislative branch have ground to a halt, neither bill is likely to pass. This highlights yet another sad and broken part of our nation’s immigration system, with which persons on neither side of the aisle like, but which neither side is able to fix even with a small step toward providing some aspect of fundamental fairness to those unable to speak adequately for themselves.
There has been a troubling increase in the processing times for many immigration case types including: more than 8 months for H-1B extensions; 8-10 weeks or longer for O and P visas for artists and entertainers, who are often scheduled to travel for shows and appearances on short notice; and more than 9 months for persons seeking to change to F-1 student status to pursue studies in the U.S. Further, the processing times listed on the USCIS website do not accurately reflect the actual processing times for many case types. This has been confirmed both by what immigration attorneys have been receiving in the mail each day and by USCIS NCSC (National Customer Service Center) personnel who have refused to accept case status inquiry requests for long delayed cases and explained that the data listed on the public website is not the same data set used by the NCSC personnel as the cut-off dates for accepting case inquiries.
Although long delays are always frustrating, in the past, USCIS has been more candid in explaining the reason for delays: new computer systems, training new staff, an unexpected increase in workload, etc. More recently, however, USCIS has refused to provide any additional information about why processing times have decreased to such a great extent. There is a concern that the lack of transparency reflects a lack of planning or care, and that processing times may grow dramatically worse when USCIS receives more than 150,000 H-1B petitions in the first week in April, of which approximately 85,000 will be retained for adjudication.
Many case types allow for expedited processing, called “premium processing,” which requires the payment of an additional $1225 filing fee. USCIS promises a 15 calendar day response for premium processing cases. Premium processing has become increasingly more common as many employees require an expedited petition approval in order to renew a state driver’s license or to facilitate business or personal travel abroad.
Agency stakeholders, including immigration attorneys, have been complaining loudly about this problem. Hopefully the agency will soon take the appropriate step of providing the public with realistic and accurate case processing information — good, bad, or otherwise — so that employers and individuals can plan appropriately for work, travel, and other important matters.
Foreign students can often obtain “OPT” (Optional Practical Training) work authorization for 12 months to allow them to remain in the U.S. to work to apply what they have learned in school in a practical work environment. Students with STEM majors (Science, Technology, Engineering, or Math) can obtain an extension for additional periods of time if certain requirements are met.
Through recent litigation it was determined that the prior rule was not correctly issued. This prior rule, permitting additional STEM OPT extensions in the amount of 17 months will end on Monday, May 9, and will be replace on Tuesday, May 10, 2016 with the new rule permitting STEM OPT extensions in the amount of 24 months. The new and longer extension period is only available to support work for employers enrolled in the E-Verify system, and also comes with other additional requirements. These additional requirements include the implementation of a formal training program (on Form I-983) with active oversight to confirm that the student is meeting the training program objectives. Also, volunteer work is not permitted and the student’s pay must be commensurate with similarly situated U.S. workers.
Additional information can be found at: www.studyinthestates.dhs.gov . The full rule is available in the Federal Register of Friday, March 11, 2016 (Vol. 81, No. 48).
The H-1B visa is the visa category most used by companies to obtain work authorization for professionals coming from other countries. Under the current law, 20,000 visas may be issued to persons who have obtained a master’s or higher degree from a U.S. university. 65,000 visas are allocated to other professionals. USCIS will begin accepting petitions for Fiscal Year (FY) 2017 H-1B visas from April 1, 2016. The soonest these visas can be used for work authorization will be October 1, 2016, which is the start of FY 2017.
In the past few years, the quota has been oversubscribed and the petitions received within the first 5 days of the filing season have been subjected to a lottery. This is also likely to be the case in the present year Please note that the cap only affects H-1B visa petitions filed on behalf of a foreign worker for the first time. H-1B extension cases, H-1B change of employer cases, or initial cases acknowledged as received by the CIS will not be affected. Further, some employees affected by the cap may have additional work visa options including F-1 practical training, TN, E, J, L, O-1 and even permanent resident visas. Other foreign workers may need to wait outside of the U.S., possibly at a foreign subsidiary, until new H-1B visas become available. As the available case options will be unique to each individual employee, we recommend that you contact our office for any specific questions that you may have regarding employees you may be considering for H-1B status.