Finally, some good news on the employment immigration front: the 2d preference national interest waiver for advance degree aliens or those with exceptional ability can more easily qualify for permanent residence as a result of Matter of Dhanasa (26 I&N Dec. 884 (AAO 2016). This December 27 case breathes new life into this little used category. Now entrepreneurs, tech, cultural, education, those in the arts and many others accomplished individuals may more easily petition on their own behalf. In recent years, the category was seldom used as it was hard to qualify. In this stunning broadening of the pool of qualified individuals, was this decision preemptive of anticipated stringent Trump immigration policy? Did the Board of Immigration Appeals fear our new president will make decisions against our nation’s interests? Perhaps.
As inauguration day approaches, it’s not possible to know just what our President Elect will do about immigration when the time comes. So far, pundits surmise that he makes decisions off the cuff, based on who has spoken with him last, on the subject at hand. After all he’s said, and given he appointed Department of Homeland Security Secretary former Marine General John Kelly, enforcement is clearly the priority, but the rhetoric on immigration has been as though we have not been enforcing the law already. This is untrue. Record numbers of aliens have been removed from the U.S. since President Obama was elected, 2.5 million. During this time, the number of immigration judges increased from 210[1] in 2008 to 250 judges today[2]; each judge handles far more cases, more than 1,400 cases each.[3]
The number of undocumented aliens in the U.S., some 11 million has been relatively stable since 2005[4]. In fact, criminal aliens are not new to removal as may be assumed by Trump’s focus on them. They have been kept from being admitted and/or removed since the Immigration Act of 1891[5] so keeping them out has always been a priority. Based on the numbers of removals, especially of criminal aliens ineligible for relief, the numbers have never been larger. It was not until after 9/11 that the deportation law was increasingly enforced though. So where does this enforcement leave us? Is it in the national interest to focus on criminal alien removal when we are already removing at high rates?
Would it not be more in the U.S. national interest to continue the enforcement as is, while further focusing on the admission of those truly in the U.S. national interest, in this particular category? At least the BIA understood this to the extent those who qualify in the U.S. national interest may petition themselves today more easily.
The numbers of lawful workers self-petitioned or by employers has not changed in nearly 30 years by a law known as IMMACT 90. This law was the same one which created the national interest waiver. At least maybe now this category could finally be predictably used, and more of our national interests met. At best, it’s time to take an honest look at our national immigration needs.
[1] TRAC Immigration,” Improving the Immigration Courts: Effort to Hire More Judges Falls Short” referencing Transactional Records Access Clearinghouse, http://trac.syr.edu/immigration/reports/189/
[2] Office of the Chief Immigration Judge, https://www.justice.gov/eoir/office-of-the-chief-immigration-judge
[3] American Immigration Council, “Empty Benches: Underfunding of Immigration Courts Undermines Justice,” June 16, 2016, https://www.americanimmigrationcouncil.org/research/empty-benches-underfunding-immigration-courts-undermines-justice
[4] FacTank, News in the Numbers, Jens Manuel Krogstad, Jeffrey Passel and D’Vera Cohn, November 3, 2016, Pew Research Center, http://www.pewresearch.org/fact-tank/2016/11/03/5-facts-about-illegal-immigration-in-the-u-s/. There was a small peak to just about 12 million for a year in 2008.
[5] Immigration Law Sourcebook 15th Edition, Ira Kurzban, AILA 2016 , Ch 1 - Brief History of Immigration Laws, http://ailalink.aila.org/#search/result/view/54056
[6] Survey results reported in Simon, Julian L. (1989) The Economic Consequences of Immigration Boston