Integrity Legal

In an interesting recent decision by the United States Circuit Court of Appeals for the 8th Circuit the Court found that they indeed have the prerogative to review and rescind an I-130 denial. The following is a direct quotation from the Court’s opinion which was distributed by the American Immigration Lawyers Association (AILA):

In addition, interpreting the statutory language as the government advocates would force this court to classify every decision involving fact-finding by the Attorney General as discretionary and would remove all such decisions from judicial review. That is not a reasonable interpretation in light of the provisions of the Immigration and Nationality Act itself setting forth our standard of review for factual determinations in removal proceedings.

As one could likely gather from the above cited quote, the United States government’s position regarding denial of I-130 petitions basically could have created a situation in which Courts would not be able to review the decisions made by adjudicators at the United States Citizenship and Immigration Service (USCIS). It was interesting that the Court was not persuaded by this argument and reviewed the decision notwithstanding government objection.

For those who are unaccustomed to the US visa process, the I-130 petition is generally the first step in bringing an alien immediate relative to the USA. This petition is often utilized by those wishing to bring a foreign spouse to the United States. In cases where the I-130 petition is approved, the case file is usually forwarded on to the United States National Visa Center (NVC) which is an agency under the jurisdiction of the American State Department. The NVC acts as a sort of clearinghouse for visa applications. Therefore a Vietnamese spouse will likely process his or her visa application at the United States Consulate in Ho Chi Minh City via the NVC. Meanwhile, a Thai spouse will likely process his or her visa application through the US Embassy in Bangkok by way of the National Visa Center. Chinese spouses may process through one of the many US Consulates in China or the US Embassy in Beijing. The same can be said for India as the US Missions in both countries have dramatically changes Consular Processing procedures to provide more convenient options to American visa seekers after NVC processing.

The issue of judicial review in matters pertaining to United States immigration is a complicated one. Therefore, differing aspects of the US visa process may be subject to varying levels of judicial review depending upon the circumstances of a given case. For this reason some bi-national couples opt to retain attorney assistance in processing visa petitions and applications as a licensed professional can provide significant insight into overall processing procedures and provide strategies for streamlining the visa process.

Fore related information please see: K1 Visa Thailand, IR1 Visa Thailand, or CR1 Visa Thailand.

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Recently, the Immigration Policy Center issued a so-called progress report for the Department of Homeland Security. For regular readers of this blog it may be recalled that the Department of Homeland Security has jurisdiction over the United States Citizenship and Immigration Service (USCIS), the Customs and Border Protection Service (CBP) as well as Immigration and Customs Enforcement (ICE). To quote the Immigration policy center blog:

“The month of March marks the seventh anniversary of the Department of Homeland Security (DHS) and its immigration agencies. It also marks the end of a sweeping internal review ordered by Secretary Janet Napolitano, a review which as not been made public. In order to assess the first year of immigration policy under the Obama Administration, the Immigration Policy Center releases the following Special Report which compare DHS’s actions with the recommendations (Transition Blueprint) made to the Obama Transition Team’s immigration-policy group. How does DHS stack up? The following IPC report finds a department caught between the competing priorities of old broken policy and new reforms. While DHS has failed to meet key expectations in some areas, it has engaged thoughtfully and strategically in others, and has made some fundamental changes in how it conducts its immigration business.”

The report itself is quite long and provides detailed information about ways in which USCIS and DHS can improve their organization. One of the most interesting recommendations calls for a concerted plan for integrated immigrants into the tapestry of American life. To quote the report directly:

“The Administration should create a national integration strategy, establish a National Office on Immigrant Integration, and gather data on the impact of government policies on immigrants, and coordinate agency decisions that affect them.”

This report went further and advocated for certain changes in the way that USCIS handles adjudications of applications and petitions for Immigration benefits:

“USCIS must clearly articulate the principles it uses to evaluate and adjudicate individual cases, and must address the complaints of recent years that too many people are denied benefits, or subjected to repeated requests for additional evidence, because adjudicators are looking for reasons to deny rather than grant benefits. Fee waivers and discretionary waivers should be applied more broadly, particularly where individuals in proceedings have immediate family members who are U.S. citizens.”

Although this author does not necessarily agree wholeheartedly with all of the assertions in this progress report, there is no doubt that there is room for improvement in any organization and the Department of Homeland Security is no different. That being said, it is a tremendous task to ascertain where resources are most needed and allocate them accordingly. Therefore, we applaud the Department’s efforts at improve the system while encouraging DHS to continue to strive for greater efficiency tempered with a respect for the due process rights of all concerned.

For more information on this and other topics related to American Immigration please see: US Visa Thailand or K1 Visa Thailand.

Tags: American Immigration, CBP, Customs and Border Protection Service, Department of Homeland Security, DHS, ICE, Immigration and Customs Enforcement, K1 Visa Thailand, US Immigration, US Visa Process, US Visa Processing, US Visa Thailand, USCIS
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