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Statute Re-interpretation

Discussion in 'Visa Modernization' started by s_gan, Dec 14, 2014.

  1. s_gan

    s_gan Super Moderator

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    Starting a new thread to keep the discussion restricted to this topic.

    Ron,

    First,I do understand that only immediate relatives of US citizens are not subject to cap but don't you think that under the current statute it is a mistake to count dependents under the employment based category ?

    The words in bold clearly indicates that the derivatives who don't qualify for application to permanent residency in any category but are derivatives of EB applicants do not belong to the EB preference category.

    If someone does not qualify for EB preference category how can those persons use the visa numbers under that category ?

    I do not know the legislative history behind the immigration acts however to me it appears that counting Family Members under employment based category is grossly wrong. I would even go one step further and say that unless the law is changed to explicitly count dependents

    "A spouse of child defined in subparagraphs (A), (B), (C), (D), or (E) of section 1101(b) of this title shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) of this section, 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."
     
  2. s_gan

    s_gan Super Moderator

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    Also, the clause does state they qualify for same status and same order of consideration ( but does not state same preference category)
     
  3. s_gan

    s_gan Super Moderator

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  4. Kamakazee

    Kamakazee Super Moderator

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    Yes, I read the above article too. It is interesting and shows that there is enough ambiguity in the text to do the quota reinterpretation. But I will wait for Ron to comment on it.
     
  5. s_gan

    s_gan Super Moderator

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    My point is there is no ambiguity but it is very clear that dependents cannot be counted towards the EB cap because they don't belong to the preference category.
     
  6. Kamakazee

    Kamakazee Super Moderator

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    So, where should they be counted? In the FB category? Or does this mean that they should not be counted at all? If it is that clear, then did USCIS officials just wake up one morning and decided to do it this way? And this went on forever and nobody questioned them till the backlog got horrendous and that's only when people actually started looking at it?

    That's when USCIS said, "Let's do a study to find out if we have been doing it wrong all along." I guess we are at that point now.
     
  7. s_gan

    s_gan Super Moderator

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    The authors do give some insight into legislative history and also explain the clauses in INA that go against counting out dependents.

    According to the authors, prior to 1990 dependents were counted under a different category, therefore when the cap was increased from 65,000 to 140,000 it was expected that derivatives should be counted in. They also state that the congress tried to add a clause to exempt derivatives which did not appear in the final bill, but the authors don't have a clear idea why it was left out.

    IMHO merely increasing cap does not mean that the derivatives should be counted in unless stated explicitly in the law.

    Another example the author's cite is the law that gave GCs to iraqi translators. Let us remember that this law did not advocate considering Iraqi translators as EB applicants . Therefore it would be incorrect to assume that derivatives of Eb applicants have to be counted in.

    I am relying on this one statement which asserts that derivatives who are not eligible for green cards under any category will be eligible for the same status and same consideration. It does not state that derivatives who don't qualify for GCs under any category are eligible for gcs under Eb category.

    It is altogether a different question whether derivatives should be counted under FB category. That is something that the agencies have to figure out. While I agree that the law is ambiguous about which category should be applied for derivatives it is very clear that dependents are not eligible for EB category. Until they figure it out they should not use EB category visa numbers to issue green cards to dependents.
     
  8. Kamakazee

    Kamakazee Super Moderator

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    "While I agree that the law is ambiguous about which category should be applied for derivatives it is very clear that dependents are not eligible for EB category. Until they figure it out they should not use EB category visa numbers to issue green cards to dependents."

    But that is exactly what they have been doing for so long right? Why is it that now suddenly people are looking into this and this was not caught or questioned before?
     
  9. Ron Gotcher

    Ron Gotcher Attorney at Law

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    I was in Washington in 1990, working as a lobbyist for one of my clients. I followed the 1990 bill very carefully in both the House and Senate. The two versions of the proposed legislation were very different from one another. The final bill was the product of a House-Senate conference committee. The EB portion of the bill was largely taken from the Senate bill, but there were major modifications.

    In my opinion, both the House and Senate intended that visa numbers be counted exactly as they had been prior to 1990 - where dependents were included.

    I would dearly love to see the administration re-interpret the statute to exclude dependents from the count. I think that there is enough ambiguity for them to pull it off - particularly if they do a detailed study in advance. I don't believe, however, that you can make an argument that the statute and legislative intent clearly show that dependents were not intended to be included in the count.
     
  10. s_gan

    s_gan Super Moderator

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    Thanks Ron.

    If that was the intent how can it be reinterpreted?
     
  11. Ron Gotcher

    Ron Gotcher Attorney at Law

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    The intent is not absolutely clear. That is, nothing on this subject was memorialized in the conference report. I distinctly recall the debate and the discussions in committee, but since those were not voted upon, they are not effective to demonstrate intent.

    The actual language that is used is ambiguous. General principles of administrative law allow the executive branch to interpret reasonably any ambiguous statutory provisions. I am convinced that the entire purpose of the study group made up of seven cabinet secretaries is to provide a reasoned basis for changing the interpretation that has been in place for the last 24 years.
     
  12. s_gan

    s_gan Super Moderator

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    Thanks.

    Can the agencies decide to count derivatives under FB category?


     
    Last edited: Mar 31, 2015
  13. Kamakazee

    Kamakazee Super Moderator

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    The study group is made up of 7 cabinet secretaries? Who are they? Ron, where did you come across this info?
     
  14. s_gan

    s_gan Super Moderator

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    Off topic.

    Can you allow users to edit their posts.
     
  15. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Go to http://www.whitehouse.gov/the-press...ernizing-and-streamlining-us-immigrant-visa-s and look at Section 1.

    Section 1. Recommendations to Improve the Immigration System. (a) Within 120 days of the date of this memorandum, the Secretaries of State and Homeland Security (Secretaries), in consultation with the Director of the Office of Management and Budget, the Director of the National Economic Council, the Assistant to the President for Homeland Security and Counterterrorism, the Director of the Domestic Policy Council, the Director of the Office of Science and Technology Policy, the Attorney General, and the Secretaries of Agriculture, Commerce, Labor, and Education, shall develop:

    (i) in consultation with private and nonfederal public actors, including business people, labor leaders, universities, and other stakeholders, recommendations to streamline and improve the legal immigration system -- including immigrant and non-immigrant visa processing -- with a focus on reforms that reduce Government costs, improve services for applicants, reduce burdens on employers, and combat waste, fraud, and abuse in the system;

    (ii) in consultation with stakeholders with relevant expertise in immigration law, recommendations to ensure that administrative policies, practices, and systems use all of the immigrant visa numbers that the Congress provides for and intends to be issued, consistent with demand; and

    (iii) in consultation with technology experts inside and outside the Government, recommendations for modernizing the information technology infrastructure underlying the visa processing system, with a goal of reducing redundant systems, improving the experience of applicants, and enabling better public and congressional oversight of the system.​

    (b) In developing the recommendations as set forth in subsection (a) of this section, the Secretaries shall establish metrics for measuring progress in implementing the recommendations and in achieving service-level improvements, taking into account the Federal Government's responsibility to protect the integrity of U.S. borders and promote economic opportunity for all workers.​
     
  16. Kamakazee

    Kamakazee Super Moderator

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    Seems like an awfully lot to do in 120 days. Makes me feel they have started working on this already or even before the EOs were announced.
     
  17. Ron Gotcher

    Ron Gotcher Attorney at Law

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    I very strongly suspect that is the case.
     
  18. p19671

    p19671 Junior Member

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    Ron, I have a question. How would USCIS count dependents, if dependents of EB holder is out of the USA(never entered in this country) when primary applicant get G.C. and apply for visa later stage? Would that be in FB or EB category, if that is in FB why can't they consider dependents in FB( and wait for FB priority date), even if they are in the US?
     
  19. Ron Gotcher

    Ron Gotcher Attorney at Law

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    No, dependents are entitled to the same preference classification and priority date as the principal.
     
  20. Ron Gotcher

    Ron Gotcher Attorney at Law

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    You should be able to edit your posts. If you can't, let me know.
     

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