Aliens Who Thumb Their Noses at the United States Get Green Cards Anyway

By David North, January 29, 2013

Two small classes of aliens who have, in effect, thumbed their noses at the United States, are now about to get their green cards — despite non-admirable behavior in the application process.

Neither group has done anything criminal, but they have (at least in my eyes) treated Uncle Sam with disdain. Despite this, USCIS has set in motion techniques for them to get admitted to the United States.

These are the careless brides and grooms, on one hand, and the overly casual, overseas relatives of people who have secured refugee or asylee status, on the other. Here are the stories:

The Careless Newlyweds. If you, an alien, have newly married a citizen you are first granted a two-year-long conditional residence card. If you and your spouse want you to get permanent resident status (a green card) at the end of the two years (and that is the usual case) you have a finite period of time to apply for that card before the conditional card runs out.

But what happens if a couple files the application after the deadline and also fails to file an explanation of why the filing was late? Maybe the marriage was not very valid, maybe one or the other wants it to end, maybe neither party cares much about the immigration law. In any case, the couple has dissed Uncle Sam twice. This should be a red flag that something may be amiss — it is well known that marriage fraud is a continuing, and probably large-scale problem, as I have noted in previous blogs.

The current regulations, under these circumstances, instruct the immigration services officer (ISO) handling the case to simply deny the application and place the careless alien into illegal status. The alien, of course, could appeal the decision.

USCIS now has pending a proposed policy change that would require the ISO to take an additional step, to ask the couple why they had not filed a reason for the delayed application, giving them a chance to get a favorable opinion without making a formal appeal.

Why make it extra-easy for the neglectful alien applicants in such cases? See the text of the USCIS proposal on this point.

The Overly Casual, Overseas Relatives of Refugees. Here is another instance of USCIS leaning over backward to admit an alien with a record of limited interest in securing legal migrant status in the United States. This one relates to aliens who are overseas and who are relatives of U.S.-recognized refugees/asylees.

You would think that such a person would jump at a chance to come to the United States as both a legal entrant, and as a refugee, with the associated benefits. Some apparently do not.

Under the old system, if someone's admission had been approved subject to a subsequent interview at a U.S. consulate or embassy but the alien did not, in fact, show up for that interview understandably the application was denied.

Then came one of those not-unfriendly lawsuits that are barely visible. Someone interested in such refugee/asylee overseas relatives filed a class action against the government (Tsamcho v. Napolitano, N. 10 CV 2029 (E.D/.N.Y)) and before the judge had a chance to rule on the case, USCIS's immigration lawyers and those for Tsamcho settled the case by giving the aliens just about everything they asked for.

Now, according to the proposed settlement, if the favored aliens do not appear for the interviews (i.e., if they stand up Uncle Sam) their cases are not denied, they are placed in a deep freeze (an "administrative closure") that the alien can unfreeze at his or her convenience.

There will be a Fairness Hearing on this on February 25 in the U.S. District Court in Brooklyn, but the chances of anything but a rubber stamp from the judge would appear to be highly unlikely. You can read the fine print on this one in this USCIS document.

The relatives involved in the second set of cases are a little less unattractive than those in the previously described marriage cases; in this instance they did not bother to overcome whatever obstacles there were to a trip to the embassy, and those obstacles could be substantial; in the prior case, the apparent lack of interest in getting a green card was demonstrated by the lack of a little note saying "Sorry we are late, and here's why." (I am sure that any semblance of an excuse for a late filing would be accepted by USCIS.)

But in both circumstances, USCIS is all too willing to waive these remarkable lapses and say "here's your green card, even if you did not follow our rules!"

It seems that USCIS is always going out its way to make it easier for small numbers of not very attractive applicants to enter the gates though obscure routes.