With all these discussion about recapture being out of scope for Executive Order, how did Pres give EAD to illegals ? Isn't it the law that illegals need to be deported ultimately ? Sure Pres can delay their deportation. But how can he accord a legal status to people who broke the law ? ( Nothing personal, wondering from legal standpoint)
What I understand gcq is ... giving EAD is not against law. What Obama did was "Deferred Action" on illegals - especially dreamers. Basically he told his executive branch that we are not going to act on these deportation cases and give these dreamers a chance to work and come out of the shadows until the issue is settled in congress.
Thus he hasn't actually broken the law.
GOP folks cry fowl because they think by choosing the "defer" the deportations - he is breaking the law. But this is a classic case of walking the fine line. I think he served well to his constituency and to America. I think it made no sense on trying to deport kids who came to US and grew up here.
Quote:
Originally Posted by gcq
From Oh Law Website. Personally, I don't think EO is possible on exempting dependents or recapturing visa as Spec has extensively described before. I think this EO is just a talk and I don't see anything significant happening for legals at this point. I think if President takes this EO, it is likely to be challenged in court.
08/21/2014: Clarification of Ongoing Consideration of Treament of Immediate Relatives of Principal Beneficiary of Immigrant Petitions in Immigrant Visa Counts
The current law involves Section 203(d) of 8 U.S.C, Immigration & Nationality Act which provides that "A spouse or child as defined in subparagraph (A), (B), (C), or (E)....shall,...be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent." As readers can see it, the statute does not specifically require that their immigrant visa numbers should be taken out from the numerical limit of various immigrant petitions. It is the INS and USCIS that have restrictively interpreted this statutory section to require to take out such visa numbers from various immigrant petitions annual national numerical limit. Thus whether or not the spouses and children must take out immigrant visa numbers from the annual quota remains a matter of interpretation. Should the President Obama interprete it different way and revises the rules that will provide that they do not take out from the annual national numerical limitation, it can prevail unless such executive action is challenged in the federal courts, eventually before the U.S. Supreme Court, that his interpretation is wrong.
When we reported this issue, we focused on the employment-based immigration quota system without mentioning other immigrant petitions, such as family-based immigrant petitions, diversity visa immigrant visa petitions, etc. etc. because we were discussing employment-based immigration system. However, the current statute encompasses all types of immigrant petitions and should the President exercise his executive power without limiting it to the employment-based visa petitions, it can cover any types of petitions and family members, which allegedly amount to 800,000. However, whether or not the President would go that far remains a question at this time. We will see whether he will indeed include this new interpretation in the forthcoming executive action and if yes, how far.
That is a question of practicality. However he is free to limit it to employment based applicants. Remember when he gave EAD to illegal children, he could have given it to legal kids also. But he chose not to do. So if he wants to limit the visa number exclusion to EB category only, he can do citing "quality of life of high skilled immigrants" or whatever reasons a smart politician can come up with.Quote:
Originally Posted by Jonty Rhodes
Whatever he is planning to do, he should not do it like his healthcare law which was challenged many times and is still being challenged and being implemented in parts like ok you are exempt; no you are not; yes you are! WTH!!
If he takes any EO and later on based on the current polarization in DC , it is challenged in court, the GC holders because of that EO will be in limbo until courts resolve it. No, I don't want something fast w/ sloppy legal arguments. I would prefer to wait!
Quote:
Originally Posted by gcq
Honestly if none of the ways to give us a few extra GC #s work I would just be happy if
We can ability to file I485 ( I am sure the legality of that is easier to clear by executive action
Than dependent exemption or even visa #recapture)
IMHO visa # recapture should not be that tricky .
But failing that just let us get EADs . At least we have a bone.
Quote:
Originally Posted by qbloguser
For EAD, all that is required is to make some error, and make all EB dates current. No EO required. Like what happened in 2007. Probably intentionally.
kk - If you remember 2007 then clearly you are in the queue for a long time. Sorry about that. Those who don't remember it - in 2007 all dates were made current because DOS was very unhappy with USCIS over lack of any visibility and probably was running into a situation where they would've wasted visas if they had not made dates current. Luckily they did and there was some drama around it. But finally they honored the dates that were made current.Quote:
Originally Posted by kkruna
I said previously in a reply to this post:Quote:
Originally Posted by migo79
I think I rest my case. It has been pointed out elsewhere that in the very same Endelman and Mehta article that discusses INA 203(d), footnote 8 says:Quote:
Bruce Morrison should therefore also know that, in Conference (to reconcile House and Senate versions), a proposal for 75k EB visas (excluding dependents) was rejected in favour a 140k allocation which included dependents. This is discussed in the Endelman & Mehta article. Mr. Morrison seems to suffering from selective amnesia. That's probably more to do with who his paymasters are now.
Politicians (or ex politicians) - they are all the same. Redacted, redacted, redacted!!Quote:
Former Congressman Bruce Morrison (D-Ct), the House floor manager for IMMACT 90, told the authors on August 31, 2009 that there is no basis in IMMACT 90 to argue that dependents should be exempt. He does say that the House bill HR 4300 would have exempted dependents but the EB level in the House bill would have been much lower-75,000 principals multiplied by 1.5 to give a grand EB total of 187,000; however, this House proposal was rejected in Conference. The goal in Conference was to set a total number. The House conferees wanted more but former Senator Alan Simpson (R- Wyo) wanted less and did not like exemptions. Ultimately, the EB number was set at 140,000. See Informal Interview of Congressman Bruce Morrison by Gary Endelman on August 31, 2009 (on file with the authors).
Looks like recapture, excluding dependents etc.. for helping legal immigrants is all smoke and mirrors.
source: http://www.inc.com/jeremy-quittner/s...ml?cid=sf01001Quote:
Even the most optimistic of immigration reform proponents knows the chance of a legislative vehicle at this point is zero," says Emily Lam, vice president of health care and federal issues for the Silicon Valley Leadership Group, a technology company lobbying group that supports comprehensive immigration reform. In fact, SVLG is already planning a trip to Washington in December to express disappointment with Congress's inaction
source: http://www.politico.com/story/2014/0...sh-110211.htmlQuote:
“With the problem at the border and the president’s rhetoric on executive action have totally poisoned the well,” said Charlie Spies, who helped organized Republicans for Immigration Reform. “I don’t think anybody believes anything can happen this year.”
Guys,
Please consider this news with a pinch of salt!
I did see similar news floating in many sites for few weeks now but this info I got is from quite a good internal source a Federal Employee and they got orders to bring out a process to give out *** for H4's. Well that's a sure shot administrative fix we know will come to reality this time but the other mandatory fix that these offices are talking as a second mandatory fix by the president is 'Remove Dependents from the Immigration GC Visa Cap' . Recapture of Visas is very unlikely as per these sources. But if we get the dependents removed from the count then I believe that's a huge relief for the EB population overall.
I hope this news turns out true and since Obama will be traveling next week, he needs to gets this done within this week. lets stay tuned.
V
I don't know the possibilities. Ideally all I140 approved candidates should be able to apply for EAD. But if for some reason, that is also very difficult, at least people who have finished 6 years on H1 and I 140 approved should be eligible. Basically same pre conditions as laid out for H4 EAD as of now.
If true, this is a real 'scoop' even when sprinked with salt.Quote:
Originally Posted by Prabhas
Immigration Voice says it's not possible through executive action. This is what they sayQuote:
Originally Posted by Prabhas
-----------
We have received multiple inquiries about what is going on with the EB admin fixes. Rather than answering each message individually, here is our attempt to clear some air.
Apparently, there are some people posting online that a decision could soon be made on recapture of unused immigrant visas. This is not true. Recapture was briefly discussed sometime back but it was decided that recapture of unused visas cannot be done through administrative means. Same goes for exempting dependents. Things can always change, but just so you know, no such decision is pending on recapture this week.
For the sake of clarity, let us also share some important information about EAD for H-4 rule. This fix was already announced over 2 months back. USCIS/DHS is reviewing submitted comments to the notification. After the review of the comments is complete, DHS will issue final ruling. So it is just a matter of time. The decision for EAD for H-4 was already made some time back and no more decision making from the President of DHS is needed. DHS/USCIS is currently reviewing the comments and the final rule will be announced soon (no specific timeline available).
If it was possible within the existing framework of law, without a doubt we would have preferred more green cards, whichever means these green cards would come. However, at this time, that is not possible within the existing law. We have also asked for recapture of unused green cards and exempting dependents from numerical limits. But as it appears, these fixes cannot be done through Administrative method within the existing law. As it appears right now, recapture of unused green cards and exempting dependents from numerical limits will require Congressional action.
Therefore, our focus is on fixes that will help improve quality of life for EB applicants. Our fixes will allow everyone to live a free life and be able to do the things each one is potentially capable of doing. Our suggestions are focused on fixes that will allow EB immigrants to change jobs/employers after immigrant petition, clarity with what jobs one can change into, access to immigration (green card and H1/L1 application and decision notices) required to change job, not having to restart green card process after approval of I-140, long term EAD and AP so EB applicants and employers are not stressed out over receiving EAD renewals on time, and other such fixes.
We believe that these minor technical fixes will help improve the quality of life of over a million skilled immigrants and their families stuck in green card backlogs.
We are attempting to keep things clear as much possible for everyone waiting in EB backlogs. As Admin fix process unfolds, you will probably read all sorts of news/information online. For your own benefit, please filtering facts from fiction when consuming information available online.
Viz,Quote:
Originally Posted by vizcard
Thanks for enlightening me with this information. I was actually very skeptical about writing that message just with the intention of not to give any false hopes to our aspirants but I slipped. I should have read the earlier messages on this thread.
I didnt realize that there is one such thread until you moved my post here.
Regards,
V
I pay lots of respect to members and gurus of this forum and their opinions always as bright,
seeing this:
http://shusterman.com/obama-double-n...een-cards.html
i'm not sure if AILA is pushing hard on such actions and they don't know the law, Carl Shusterman is a reputable immigration AttorneyI believe and he still says.
now we have ~3 weeks till the summer officially over, ~2 weeks before congress coming out of recess.Quote:
The State Department has always interpreted these numerical caps to include that not only the principal beneficiary, but all the derivative beneficiaries of a petition. However, this policy is subject to change since it is not mandated by law.
I really want that hype to be over very soon, to count or not to count :-)
This is interesting considering its coming from a reputable immigration attorney. There has been a lot of talk especially in last 2 days about the upcoming EO since the President has returned from vacation. He is traveling next week so essentially he has either this week to do something or 2 weeks after next week. White House Spokesperson mentioned yesterday about something happening before 21st September, which is the end of summer. Today, I read that Luis Guiterrez and 30 other immigration advocates gathered at Mayor Rahm Emmanuel's office in Chicago to "get ready" for EO (whatever that means) and Guiterrez was boasting about his source in the White House who reportedly told him that possibly 5 million illegals may be given legal status with EO. Also, there are various sources talking about the possibility of removing dependents.Quote:
Originally Posted by migo79
Now, personally I believe that nothing of this sorts is going to happen. If there is an EO, it most likely may involve border security. DACA alone will not go down very well with public but if it is combined with border security, than it may be just a little more palatable.
The big question for EB community is, "Can the President remove dependents from the numerical limits?" And if he can, the next question is "Will he do it?"
I don't have lot of hopes. If it happens, great. If it doesn't, life will go on. I have seen my hopes getting dashed too many times and I am not very optimistic or enthusiastic about this unless some real ground action takes place this time.
I am not even looking forward to EAD for H4 at this time unless it is implemented in reality.
exactly, Shusterman is well reputable, testified before the senate so if he is saying this with no ground it would be serious credibility issue.
and yes even Fox news i saw report they got one lawyer to discuss that the Obama will free up around 800,000 GC visa annually.
the president is walking a hard road no matter if he did / didn't do anything, he should shoot as high as he can.
on another hand looking at expanding DACA, they said that he will consider EAD for parents of US citizen, here is the kicker
well that include legal immigrants that have US child? that's interesting
he cannot differentiate between US citizens so if he do that for illegals then legals should get a long with it as well.
one thing i'm sure of if he do anything it won't be for illegal alone, legals will find their way inside with this push from immigration advocates and businesses.
3 weeks, let's see :)
here is another one,
now the question not if he will act, it's what scale he will go for :-)
Quote:
WASHINGTON — President Barack Obama is poised to take action on immigration by the end of September, with the White House working on details relating to significant policy changes in the wake of Congress failing to act, sources told me.
Sources who have been in meetings at the White House said the decision for Obama to act has been made, legal reviews have been conducted, and “right now it is a question of timing, scale, how to pay for it and how to make it work.”
and:
more interesting one ( ican only access it via google cache since it is a paid subscription, note that it is from NJ Law Journal)Quote:
The Associated Press reported this week that Obama is considering executive actions on changes in the nation's immigration system that have been requested by business leaders. One potential step that's popular among business and family groups is a change in the way green cards are counted that would essentially free up some 800,000 additional visas the first year, the AP reported.
http://webcache.googleusercontent.co...&ct=clnk&gl=usQuote:
To the question of whether the president can change DHS's long-standing interpretation of counting family members toward the per-country green card quota, he certainly can, but, if challenged, the president/DHS may have a tough time sustaining such a battle. Once DHS changes its interpretation, it might not be entitled to Chevron deference. Note that not all agency interpretations are given Chevron deference. The U.S. Supreme Court has specifically stated that only interpretations arrived at through certain procedures (such as formal adjudications and notice-and-comment rulemaking, or by some other indication of a comparable congressional intent) qualify for Chevron deference. Above all, DHS will face an even greater challenge defending the new interpretation when the same agency has been interpreting the law differently for so many years.
Based on the foregoing, it can be concluded that though the president can use his authority to maneuver within the boundary that has already been set by the Congress through enacted legislation
so now what? again wait and see :-D
but now more lawyers (NJ Law journal is a reputable one) are saying that he can do although can be challenged, but he can do.
now Obamacare got challenged and the court said he has overreached, eventhough it is still a law.
so now i really hope that he can do it and solve the misery of the people and make a fair policy change.
I absolutely believe that. However the million dollar question is - will he?Quote:
Originally Posted by migo79
If you carefully read schusterman's article - he also says that the president is "considering".
"Considering" keeps it wide open!!
my concern is what happens if the next president decides to revoke the executive order which Obama signs. Since it is not the law, will folks be in limbo if the EO is retracted / not enforced by the new president's cabinet ?
In cases where a green card is issued based on an EO (like counting dependents as one), can they rescind the green card ?
my concern is that politicians would do anything to get votes but something like green card cannot be given and taken back (which might be possible since there is no law to safeguard folks who get it )
If a law was changed /revoked, I believe there is some protection to those actions which happened under the old law (which can be argued in the court ) but Im not sure if the court would provide such protection to actions performed under an rescinded EO.
(if Obama cared about legals he would have done something in 6 years, so I dont
believe he has any intention of helping legal immigrants without doing something for illegals who's extended families are his vote base)
I believe if both the senate and congress end up having the same party as majority, legals will definitely get something. November is not far
away so I hope that happens. If Dems get congress, illegals benefit, if Reps gets it, illegals doomed.
Quote:
Originally Posted by qesehmk
I am 99.99% confident that if once issued such a green card will not be revoked for reasons you are afraid of. This is a country of immigrants and you will be surprised how many Americans actually like immigrants.Quote:
Originally Posted by seattlet
However of course next president may consider revoking such EO. In fact I am not even sure if an EO is a permanent thing. I really do not know. I would've thought that an EO is administration specific policy. So by default it may get changed once a new administration comes in.
However once (if at all) this change in policy happens - there is very little incentive for the new administration NOT to continue old policy. See .. every change has its cost and benefits. If Obama does this change he will have already paid the cost and reaped benefit. So the new administration will have to weigh in costs and benefits anew. And my guess is the benefits will not outweigh costs.
p.s.. - but to be honest we are counting chickens very very prematurely. I haven't seen any strong indication about such a change.
Couple of quick thoughts:
1. EOs are of course not permanent. They are valid until another EO or a legislation puts an end to it. However, in politics, it is very difficult to take things away once they are given (prime example - DACA - it is NEVER getting repealed, also ACA after the implementation). Even if the EO gets challenged and defeated, no future president will take 5 million EADs and hundreds of thousands of GCs away - they will be grandfathered into whatever new system emerges. Look at the same sex marriage thing - all the folks who married in California before Prop 8, their marriages continued to be valid despite SSM being outlawed following Prop 8.
2. Obama is frustrated with the congress and is has now gone in attack mode. I have been amazed at the change in him in recent speeches - its like he is running for office again. He is looking to pick a fight.
3. Its a question of legacy - after the mid-term all focus will shift to the 2016 race - so he has to make his mark in next few months. If he manages to clear 5 million undocumented into legal EAD rolls and clear EB backlog by whatever means - Latinos and Asians will hail him no matter what. I will personally be a lifelong Dem voter and donor - and I am sure many many more.
4. Obama knows that Republicans will shout to high heavens at an EO - small or big - and one of the purpose of the whole exercise is to bait them into overreacting, impeaching, just getting into even more anto-latino, anti-immigrant mode. So it makes sense for Obama to go all in even if the legal rational is a little dubious.
5. Doing something for legal immigration balances the charge of Latino-pandering and brings business money in support of the EO. So there will be a legal immigration angle - how big is something remains to be seen.
I hope Obama takes a grand stand. We will get to know pretty soon.
News slowly picking up again:
http://www.washingtonpost.com/politi...d33_story.html
of course Q, the question is will he do it :-)
in the WH Spox briefing today he said / reiterated on a question on immigration that the Pres. will act on a ***Comprehensive*** immigration reform before summer end.
another article on USA today this morning also state he is considering the technical change in the visa count.
bboth Washignotn Post and USA Today are both saying that by doing this he is ensuring het get the business support by his side which they are usually pro GOP.
i'm cautiously optimistic :-)
From today's USA Today: http://www.usatoday.com/story/news/p...view/14289613/
I am not sure which technical change they are referring to. Has to be one (or both) of Visa Recapture and Dependent Counting.Quote:
Business groups are pressing the White House to change some regulations that govern foreigners trying to enter and work in the USA. For example, a technical change in federal regulations could free up hundreds of thousands of green cards for foreign workers. Obama could also change a rule that restricts the spouses of foreigners working in high-tech fields from working while in the country.
Oh Yes, How can we forget this other party called GOP?:D
http://www.nbcnews.com/news/latino/g...ration-n190696
Quote:
Originally Posted by imdeng
It is all over media now. Executive Action was supposed to come before Labor Day but now it is supposed to come after President returns from Estonia and Wales. That would be after September 7. The question is how far the President would go in his EO for legal immigrants.
http://thehill.com/homenews/administ...on-immigration
Not that I am very hopeful of anything significant happening for legals, it was still interesting to read what Mr. Bo Cooper (Former General Counsel for INS) said here.
http://www.washingtonpost.com/politi...d33_story.html
Several immigration lawyers said Tuesday that U.S. legal statutes governing the green card limits are ambiguous about whether siblings, spouses and children must be counted. Bo Cooper, who served as general counsel for what was then the Immigration and Naturalization Service from 1999 to 2003, called the statutes among the “messiest” areas of immigration law.
“In that situation, the courts have traditionally given the executive branch a great deal of deference in interpreting the statute and supplying the answer as long as it is reasonable,” Cooper said. “The administration, no matter what it’s doing this fall, will try to make sure it hews to its legal authority. The question is how willing they’ll find themselves able to move into space that the statute gives them.”
What I derive from Mr. Cooper's statement is that dependents can be exempted from the numerical limits and only Principal applicant can be counted and this is an ambiguous area where the law can be interpreted differently.
Lets see what happens.
He was suppose to announce the actions before Congress comes back second week of august, he still has some time though
and now we only have to wait and see if he will do it.
Media coverage even in FoxNews are saying that this GC count are the least controversial since it has big support by community and business.
but giving the fact that news coverage for Visa recapture gone and the focus is on GC count, makes it feel there is something coming up
Is Obama talking about postponing the EO to after mid term elections?
http://www.reuters.com/article/2014/...0GS2LP20140828
This would changes everything: Get the USCIS "off our backs" once I-485 is filed. Even if the date retrogresses, as long as the I-485 application was bona fide and gets pre-approved, all benefits of the GC should be given: easy switching between jobs, even change of career to a different job, starting ones own company, and unrestricted travel, etc.
FWIW, IMO - GOP threat to attach border bill/EO to budget vote is a credible threat/opportunity.
>> either Pres does not want gov shut down,hence delay EO till/after midterm and talk of hope
>> or he wants GOP to shutdown gov closer to midterm elections (considering GOP is poised to take senate/even 535 is suggesting so)
my guess is - WH is looking at poll numbers and read on polls will decide 'when' part of the EO.
No guarentees that EO may come in Sept. May be postponed too.
http://hosted.ap.org/dynamic/stories...RATION?SITE=AP
You never know. It may come before September 21 or after midterm elections or may never come at all. At the end of the day, they are politicians and their moves depend on whether they can get any political benefits out of them or not. They will do what suits them politically. That applies throughout the political spectrum (both democrats and GOP).Quote:
Originally Posted by CleanSock
it would be really embarrassment for POTUS to speak out on rose garden defining a date and then the date pass and he do nothing.
so something must be announced in September for sure but what it is that's we don't know!
Politicians are really thick skinned to be embarrassed easily. The no. one priority is getting re-elected and controlling power. Everything revolves or works around this priority.
If Obama wont act before mid-terms, he will find a good reason to blame republicans or blame a situation (ISIS, border surge, or something else). I think he will only act when he can get max. benefits.. like 2012 DACA. When he says "We are considering everything", that everything is the timing or situation to get max. benefit.
Quote:
Originally Posted by migo79
Obama plays the long game. He is going to bait Republicans into overreacting and doing something like shutting down the govt again. Republicans will oblige, they will likely also benefit during 2014 mid terms and then the whole thing will come back to bite them big time in 2016 onwards.
I think most folks do not get the magnitude of the coming demographic storm. Last year just about 50% of babies born in the country were other-than-non-hispanic-white. Public school enrollments already are minority-majority. We are living in the most interesting demographic period in this country.
Politically, the advanced warnings are FL, VA, NC and CO. All four will go blue in 2016 and there is no way in hell that Republicans can win the presidency without ALL of those. None of these are going to turn without Republicans getting *some* minority support - and Obama is baiting them into going a whole generation without getting any significant minority support.
To add to this point, Obama/Democrats were given an ultimatum during the elections that if he won't act on immigration, hispanics would stay away from the polls. At that point Pres had nothing to lose, only to gain from DACA.Quote:
Originally Posted by gten20
I just said in the previous post and gten20 also has mentioned in his post, that at the end of the day, they are politicians and they will only take actions when they can get political benefits (e.g. getting re-elected) out of them.Quote:
Originally Posted by migo79
Do you think that President issued an EO on DACA because of his deep sympathy for those children? No. It was done because their extended families were basically a Democratic Vote Bank and he had nothing to lose by issuing EO on DACA. He would have gained only by doing that which was exactly he did. Yes, ideologically he supported those children staying in US but that was not the only reason because ideologically he also supports legal immigration but has he done anything for that so far?
Now, look at this news. He is reverting back on his self-imposed deadline. Now, he wants more time on immigration. As I have mentioned in one of my previous posts last week, the first EO could be coming on Border Security. This is exactly he is talking about. That is because incumbent Democrats may face tough time during election. President obviously does not want to take the risk of losing Senate. So now the news is that EO on Border Security may come first, followed by Mid-term elections, followed by possible EO for illegals depending on the results of mid-term elections and situation at that time. We are potentially talking about November end or December, which means nothing will happen till Mid-January before Martin Luther King Day.
Now, suddenly there is no talk on legal immigration at all so it is highly possible that absolutely nothing may happen for us. No EO, no Bill. Both parties will continue to blame each other.
I wish I am proved wrong but this is an old game that we have seen many times. So I have absolutely zero hopes. I would not be so optimistic and keep high expectations from these thick skinned politicians.
http://www.latimes.com/nation/nation...829-story.html
To get any benefit out of the EOs, he needs to act before the elections - probably close to the elections to not let Republican shape the debate in vulnerable constituencies. May be he will start with Border issue, then take up Legal immigration, and then take up the last part.
I think his talks about "if Congress doesn't do anything..." is a red herring - meant more for the past than for future congresss action.