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USCIS’s New Way of Denying Green Cards

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Let's talk about the new ways that USCIS has to deny you a green card. Hi, I'm Jim Hacking, immigration lawyer practicing law throughout the United States at our office here in St. Louis, Missouri. A few weeks ago, USCIS updated their practice manual to clarify and to list out ways that they can use to deny your green card case. Now, everybody knows that USCIS has discretion. Discretion is a word that means that it's up to them. They get to decide whether or not someone receives lawful permanent resident status. And discretion means that it's up to the individual officer and the supervising officers as to whether or not to give this green card. Now, I say all the time that USCIS sits around and thinks of ways to make life harder for immigrants and this one is a real doozy. They have now empowered officers with a list of factors to use in determining whether or not someone should get a benefit or should not get a benefit.

So the first step in the analysis is, is the person statutorily eligible for the benefit. But now they've encouraged officers to use a balancing test and to see if the so-called negative factors outweigh the positive factors. And so this means that we're going to see a lot more denials, we're going to see officers feel much more empowered to deny cases. And the whole purpose of putting out this new policy is to deny as many cases as possible. We've been saying for years that USCIS has declared war, not on "illegal immigration" but on legal immigration itself. And they're trying to make it harder and harder for people to get green cards and to obtain lawful permanent residence status and therefore be on a path to citizenship. So I'm going to go through the factors, but at your green card interview, now what will happen is the officer is going to try and figure out one, are you eligible for the benefits sought?

And then two, are there enough negative factors that they can use to take that benefit away from you, to not give you that green card. So we anticipate there being some more litigation over this. We'll probably be going to court over these to the extent that we can more and more. I also expect that the interpretations of themselves will be challenged. The factors, some of the factors I think are patently absurd and illegal, but let me go through. So the first one is family ties. So the positive factors are family ties to the United States, hardship to the applicant or close relatives if adjustment is denied, length of lawful residence in the United States, status held and conduct during that residence, particularly if the applicant began his or her residency at a young age.

The negative factors is the absence of close family, community and residence ties. That shouldn't be a negative factor that should have nothing to do with whether or not somebody gets a green card. You can be right off the boat, just have gotten here if you're legally married, you should get your benefits. So I think that one is illegal. Immigration status and history. Compliance with immigration laws in the condition of any immigration status held, approved humanitarian-based immigrant or non-immigrant petitions waivers, or any hardship cases that you've had in the past. Negative factors, violations of immigration laws and the conditions of any immigration status held, current or previous instances of fraud or false testimony in dealings with USCIS unexecuted, exclusion, deportation, and removal orders.

So the fraud and the prior removal orders those are par for the course, but violations of immigration laws and the conditions of any immigration status held that should not be a negative factor if you're an immediate relative petition. So if you're getting your green card based on marriage, or because you're the child of a U.S. citizen, or if you're the parent of a U.S. citizen, certain violations of immigration laws would keep you from getting a green card. But just the fact that you've been out of status or worked without authorization should not keep you from getting a green card. So again, I think that one's illegal.

Now, here's where it really gets interesting business, employment and skills. Again, we often say that they want to do away with poor people getting their green cards and this is a great example of that. The negative factors they've listed are history of unemployment or underemployment, unauthorized employment or employment from illegal activity or sources. Now, of course, that's one that's always been on the books, but this history of unemployment or underemployment that's un-American, and it's also contrary to the Immigration Nationality Act. So they're saying that the positive factors on this would be property or investment or business ties, employment history, education, specialized skills. This is total BS. It's completely wrong. It's completely antithetical to the way that our immigration system works.

And we're not just giving green cards to rich people. We're not just giving green cards to highly educated people. We're not just giving green cards to people with a long employment history. What if you have a guy he's a U.S. citizen, his mom's from India. She's never spoken a word of English, she's never worked a day in her life. She's not even a literate in her home language. So this is saying that she can't get a green card. This is ridiculous, and it's illegal and we'll be suing them over it.

Community standing and moral character. The positive factors are respect for law and order. Good moral character, honorable service in the armed forces, compliance with tax laws, cooperation with law enforcement authorities, demonstration of reformation or rehabilitated criminal conduct where applicable. Any kind of long criminal record, lack of reformation, public safety or national security concerns, failure to meet tax obligations, failure to pay child support. Most of these were already factors that were already included and then other, this is great. So this is where... So whenever you want to give officers complete and utter discretion you throw in something like this, the last other negative factors adversely reflecting the applicant's character and undesirability as an LPR of this country, undesirability.

And then the positive absence of significant undesirable or negative factors. So this is crap, total crap. And we're going to sue them to the extent that we can, if your case is denied for one of these bogus balancing tests, you should give us a call. I'm really outraged and disgusted by these people. I'm so glad that they're leaving office they were never legally appointed. This rule and many other rules were not properly enacted or followed by USCIS and I think a lot of them are going to get thrown out, but these people are just disgusting. They're disgusting human beings who hate immigrants, and I'm glad that they're going.

So if you have questions about this new balancing test and want to give us a call (314) 961-8200, you can email us at [email protected] You can join us in our Facebook group, we're just called Immigrant Home. We have over 4,000 people in that group right now, we share immigration news all the time. We've also got ideas for videos just like this one came from my old client DD and you can also subscribe to our YouTube channel and we go live every Tuesday and Thursday from noon to 1:00 most Tuesdays and Thursdays in the Immigration Answers Show answering all of your questions. So thanks a lot have a great day.

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