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Statute Re-interpretation

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

  1. Rick D

    Rick D Active Member

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    Wow, this is the first time I have seen you starting to lose hope on reinterpretation. :(
     
  2. Kamakazee

    Kamakazee Super Moderator

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    Wow, what a burn!

    That being said, I am really hoping that the administration will simply come out and say "hey, we are doing this" or "hey, we looked into it, sorry cannot do it" and then we can move on.

    Can't the administration simply come out and say it?
     
  3. groot

    groot Member

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    if and when the report comes I just hope it has details of things that they will do hopefully no more questions , request for comments etc. After the report I do not think anything will be released as that will be end of Obama’s proposals followed by election fever until new president comes in....
     
  4. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Let's lay off the IV bashing. It doesn't benefit anyone.
     
  5. s_gan

    s_gan Super Moderator

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    If recapture and re-interpretation are announced before the injunction is removed, I am fairly certain that the 5th circuit court will deliver a judgement against the federal government. They don't want to make things difficult for DACA/DAPA.
     
  6. Ron Gotcher

    Ron Gotcher Attorney at Law

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    I think the judges there are mature enough to make their decision on the merits of the case before them. In any event, I suspect the Fifth Circuit will act by the end of this week.
     
  7. s_gan

    s_gan Super Moderator

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    5th circuit court judgement depends on the Reagan appointee.
     
  8. Kamakazee

    Kamakazee Super Moderator

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    So, now the 5th Circuit court ties legal immigration fixes to DACA/DAPA?? I would really like to quote Ron here and say "If there were no illegals, legal immigration would have been fixed long time ago."
     
  9. s_gan

    s_gan Super Moderator

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    No. it give more ammo to anti DAPA/DACA. The 25 states will then link DACA/DAPA to PR and tell the courts that the federal government has sinister motive and that it doesn't respect the law.
     
  10. Ron Gotcher

    Ron Gotcher Attorney at Law

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    It doesn't matter who appointed the judge, most take their oaths quite seriously and decide cases strictly on the merits. I've been before Obama appointees who have sided with the government and Bush appointees who have sided with foreign nationals. Only a small minority are hacks who let their political bias get in the way.
     
  11. s_gan

    s_gan Super Moderator

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    lifting DACA injunction is a necessary condition but not really a sufficient condition for implementation of Rs
     
    cuckoo likes this.
  12. Kamakazee

    Kamakazee Super Moderator

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    Ok, I get what you are saying. But that is not proof enough that either R is going to happen. Maybe neither will happen and we are simply trying to find an excuse for the delay?
     
  13. Ron Gotcher

    Ron Gotcher Attorney at Law

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    The only argument I can see tying to two together is that if the Fifth Circuit dissolves the injunction and kills the Texas case, then the administration might feel emboldened to do more things without worrying about litigation.
     
  14. Kamakazee

    Kamakazee Super Moderator

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    I like the word "emboldened". Is this a better word for "have balls"?
     
  15. Rick D

    Rick D Active Member

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    Hi Ron,

    Agreed this is a question with many possible answers but just wanted to get your opinion on this. We have seen possible signs of the administration's intent to do reinterpretation all along- they mentioned in the the press conference in November, then the 'study', and soliciting the comments for it. We know there is a lot of lobbying for it from the outside groups as well. We have multiple legal experts on the record saying that they have the legal authority to do it.

    So if they have possibly decided to not do it (which is what we are leaning towards now, given the delay) what do you think might be the reason for it? Purely political- that the administration doesn't want to give away too much to the business community? Or that they don't want any more bad press by inviting another likely lawsuit even if they know they are strong on it legally.
     
  16. s_gan

    s_gan Super Moderator

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    That is why I said it is not a sufficient condition. If legals are helped ahead of illegals then the illegal would get upset.
     
  17. Kamakazee

    Kamakazee Super Moderator

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    As a legal, that really upsets me.
     
  18. Ron Gotcher

    Ron Gotcher Attorney at Law

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    I don't know why they are delaying, if in fact they have decided to do reinterpretation and/or recapture.
     
  19. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Just so that everyone understands why it will take time for AOS pre-registration, consider the current regulation as 8 CFR 245.2(a):

    245.2(a) General--

    (1) Jurisdiction. USCIS has jurisdiction to adjudicate an application for adjustment of status filed by any alien, unless the immigration judge has jurisdiction to adjudicate the application under 8 CFR 1 (a)(1).

    (2) Proper filing of application--

    (i) Under section 245.

    (A) An immigrant visa must be immediately available in order for an alien to properly file an adjustment application under section 245 of the Act. See §(g)(1) to determine whether an immigrant visa is immediately available.
    [Emphasis added]​

    This regulation will have to be modified to allow filing without a visa number available.
     
  20. Kamakazee

    Kamakazee Super Moderator

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    There is no doubt that "Pre-Registration" or Pre-Filing AOS or whatever they may call it will take time specifically because of 8 CFR 245.2(a). The rulemaking process is tedious, time consuming and even after the notice/comment period, NumbersUSA or SaveJobUSA or someone else may still sue. I think everyone accepts that and is ready to wait out. People have mostly become aware of the process now that H4 EAD has gone through the similar path.

    And that is why it is more important to get either of the 2 Rs. Plus, "Pre-Registration" does nothing to reduce the backlog. It gives nothing to the EB3I guy whose priority date is Jan 2005 who is already on EAD/AP since 2007.
     
    Last edited: May 12, 2015

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