The immigration court backlog is ridiculous and we need comprehensive immigration reform now

“The current backlog of 360,000 + cases means an average wait of 573 days before a case is resolved. ”

“The current backlog of 360,000 + cases means an average wait of 573 days before a case is resolved. ”

Who is affected and irritated by a backlogged immigration court system? The answer is, everyone involved with the process. From judges and clerks to lawyers and their immigrant clients, the people who work in immigration and the public they serve, the demand for comprehensive immigration reform is strong. The number of immigrants and cases in the system continues increasing. In a recent article on backlogged courts, an immigration judge commented, “In my thirty-one years as a United States immigration judge, I have never had as many people come through my courtroom as I have over the last six years. During this time, there has been a dramatic increase in the number of non-citizens that the United States detains and deports, and the detained number of individuals appearing in immigration courts today is unprecedented.[i]

“The current backlog of 360,000 + cases means an average wait of 573 days before a case is resolved.[ii]

Meanwhile, the comprehensive immigration reform bill, S.744, which is held up in the House by GOP leaders who fail to take action, would significantly improve the situation if it becomes law. In a recent article focused on fixing the immigration court backlog, CIR would, “Increase the number of immigration judges and court personnel, as well s the number of staff attorneys at the Board of Immigration Appeals.[iii]” It is important to note that despite the average number of days it currently takes to process an immigration case is just under 600 days, in large cities like Chicago, with large immigrant populations, the process can take up to three years!

In 2011, when the immigration backlog was critical then, the Department of Homeland Security announced the Prosecutorial Discretion Policy (read more here) to focus on the detention and removal of serious criminals and threats to national security. Despite the Prosecutorial Discretion policy, immigrants are being arrested and are now in the lumbering immigration system.

The people coming into the immigration system, in many cases, are individuals who have lived in the U.S. for many years and are able members of our communities. One individual who became part of the system one day is Lundy Khoy, who when she was one year old, came to the U.S. with her family as refugees from genocide in Cambodia. At 19, in college, Lundy was arrested, charged and convicted for possessing the drug, Ecstasy. She served three months and was released for good behavior and put on probation. Towards the end of her probation, at a regularly scheduled meeting with her probation officer, Lundy was arrested and detained by Immigration and Customs Enforcement (“ICE”) officers who detained her in prison for almost 9 months.

Many would agree that Lundy Khoy is not a threat to public safety, but now she is part of the system.

People like Lundy Khoy are being arrested in detained by ICE in increased number, in part to policies arranged in the past few years allowing information sharing among law enforcement and ICE who learn of undocumented immigrants and arrest and detain them. As a result, people otherwise “off the radar” are now among those who recently entered the U.S. and were likely stopped at borders. The administration simply cannot keep up with the number of cases and people in the immigration court system.

The problem judges face is simply not being able to spend enough time with any individual person before them in court to make a proper determination whether they should be allowed to remain in the U.S. or be deported. Additionally, many of the immigrants appearing in court cannot afford and do not have lawyers, and there is no right to an appointed lawyer in immigration courts. The large surge in unaccompanied children coming into the U.S. from Central and Latin America do not have attorneys and are functionally clueless about our immigration system and laws.

If you want to learn more about immigration options and how to proceed through the complex and backlogged immigration system, please contact our law firm to request more information.

Attorney KiKi M. Mosley is licensed to practice law by the State of Illinois and Louisiana. She is skilled and experienced in complex immigration law issues including DACA and related options for children arriving in the U.S. For more information about the law firm, please visit www.KiKisLaw.com, and do not forget to “Like” the firm on Facebook and “Follow” on Twitter. You can also review Attorney Mosley’s endorsements on her Avvo profile.

[i] The Hill: Time to fix our immigration courts, by John Gossart Jr., Feb. 26, 2014

[ii] See Gossart article above at para. 7.

[iii] National Immigrant Justice Center: Rethink Immigration: It’s time to fix the immigration court backlog, by Ashley Huebner, Apr. 26, 2013.

A recent increase in immigrant children causes frustration on both sides of U.S. borders

There is an assumption among many Latino communities that children showing up alone at U.S. border will be allowed to go free.

There is an assumption among many Latino communities that children showing up alone at U.S. border will be allowed to go free.

Unaccompanied minors from Central America have been arriving at the United States/Mexico border in unprecedented numbers.   President Obama’s administration has taken measures to manage the influx of children who need shelter, sponsors, legal representation and administrative staff to document the incoming children fleeing gang violence in primarily in Guatemala, Honduras and El Salvador.

These children arriving in the U.S. need help, especially legal assistance, as explained in our blog article, Thousands of unaccompanied minor immigrant children need comprehensive immigration reform. If they appear at their court dates, many might not understand the process and can easily become removable to the countries from which they came despite their misunderstanding of the U.S. immigration system and its complex policies.

There is an assumption among many Latino communities that children showing up alone at U.S. border will be allowed to go free.

Violence in Central America is a common reason many families are sending their children north to seek shelter and a safer life in the U.S., often with relatives. The trip through dangerous territory is expensive and many do not make it safely to the other side. Many believe that the U.S. is lenient on children and foreign parents believe their children will be safer after crossing the border.

Lucy Cabrera was terrified during her son and daughter’s journey to the U.S. Cabrera borrowed money to pay guides in Guatemala and Mexico help get her kids safely on U.S. soil. Along the way, her children called from Honduras after gangs threatened them. Finally, they made it to their destination and called their mother from a U.S. detention facility in Arizona. “Thank God they are safe now. It all happened so fast,” said Cabrera[i].

This video that shows the reality of the situation: CNN Video – Border detention of children shames America.

Immigrants arriving in the U.S. to find overcrowding in detention centers. Many children are being dropped off at bus stations with a court date on their Notice to Appear in immigration court. If the immigrants have family in the U.S. they are released and sent on their way with pending court dates at which many will not appear as noted in a recent news report[ii]. The children who remain in detention centers face poor conditions. These border facilities lack “enough food, beds, or sanitary facilities to provide for the children,” CNN has reported.

KiKi M. Mosley is an immigration attorney who can help families with children coming to the U.S. who are given a “Notice to Appear” at immigration court. She helps them apply for relief allowed by immigration law and policy written to give undocumented immigrants options while comprehensive immigration reform is not yet passed in the U.S.

Attorney KiKi M. Mosley is licensed to practice law by the State of Illinois and Louisiana. She is skilled and experienced in complex immigration law issues including applications for temporary immigration relief and adjustments of immigration status. For more information about the law firm, please visit www.KiKisLaw.com, and do not forget to “Like” the firm on Facebook and “Follow” on Twitter. You can also review Attorney Mosley’s endorsements on her Avvo profile.

[i] Washington Post: Immigrant parents urge U.S. officials to help their children flee Central American violence. By Pamela Contable, Jun. 12, 2014.

[ii] CNN, Border detention of children shames America. By Ruben Navarrette, Jun. 12, 2014.

USCIS announces DACA renewal process: First time applications are also accepted

The USCIS press release on DACA renewals states additional guidelines  that participants must meet in addition to the initial criteria for DACA eligibility.

The USCIS press release on DACA renewals states additional guidelines that participants must meet in addition to the initial criteria for DACA eligibility.

On June 5, 2014, Department of Homeland Security (“DHS”) Secretary, Jeh Johnson announced the new process for participants in the Deferred Action for Childhood Arrivals (“DACA”) program. Of the initial DACA approvals issued to applicants will start expiring September 2014 so the news of the renewal process is good news for many who need to get moving with their renewal applications.

DACA[i] is a program created by President Obama’s administration in 2012 ordering Customs and Border Protection (“CPB”) and Immigration and Customs Enforcement (“ICE”) to use “prosecutorial discretion[ii]” and not detain for removal the approved DACA participants, namely immigrant children who came to the U.S. and still do not have legal status but seek to go to school or work in the U.S.

DHS Secretary Johnson commented on the policy basis for granting and renewing DACA.

The initial grant of a DACA request is for two years and people who meet the initial DACA eligibility guidelines may also apply for a first-time DACA approval as stated in Secretary Johnson’s news release. Additionally, he states, “Despite the acrimony and partisanship that now exists in Washington, almost all of us agree that a child who crossed our boarder illegally with a parent, or in search of a parent or a better life, was not making an adult choice to break our laws, and should be treated differently than adult law-breakers.[iii]

The DACA approved participants Secretary Johnson referenced may request a renewal at least 120 days (4 months) before the expiration of the initially approved DACA period of time, as indicated on DACA approval documents.

The USCIS press release on DACA renewals states additional guidelines[iv] that participants must meet in addition to the initial criteria for DACA eligibility:

  • Did not depart the United States on or after August 15, 2012, without advance parole;
  • Have continuously resided in the United States since they submitted their most recent DACA request that was approved; and
  • Have not been convicted of a felony, a significant misdemeanor or three or more misdemeanors, and do not otherwise pose a threat to national security or public safety.

If you or someone you know is eligible to apply for DACA for their first time or they are eligible to renew their status, attorney KiKi M. Mosley can help them review their eligibility and submit the proper form for Consideration of Deferred Action for Childhood Arrivals and an Application for Employment Authorization to work in the U.S. It is important to take care to submit timely and properly completed application materials with the proper forms and fees to USCIS through a licensed immigration attorney to prevent rejection of an application for DACA or renewal.

Attorney KiKi M. Mosley is licensed to practice law by the State of Illinois and Louisiana. She is skilled and experienced in complex immigration law. For more information about the law firm, please visit www.KiKisLaw.com, and do not forget to “Like” the firm on Facebook and “Follow” on Twitter. You can also review Attorney Mosley’s endorsements on her Avvo profile.

[i] KiKi M. Mosley Immigration Blog: Deferred Action for Childhood Arrivals and the American Dream: US fund to help DACA Recipients. Feb. 14, 2014.

[ii] KiKi M. Mosley Immigration Blog: Prosecutorial Discretion in Immigration Enforcement. Jan. 24, 2014.

[iii] See USCIS Press Release FN IV below.

[iv] USCIS Press Release: Secretary Johnson Announces Process for DACA Renewal. Release date: Jun. 5, 2014.

Immigration computer system is up and running as the system returns to 2014 after being stuck in the 80s after meltdown

The system was down for almost six weeks, leading many to question how a failure of this magnitude could happen.

The system was down for almost six weeks, leading many to question how a failure of this magnitude could happen.

In a recent press release[1], the American Immigration Lawyers Association (“AILA”) spoke out to let people know the Executive Office for Immigration Review (“EOIR”) while, fixing the recent immigration court computer failure, is still badly underfunded. The EOIR is the federal office established to adjudicate immigration cases by “fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws.[2]” In this case, the EOIR was unable to do anything in a uniform manner with a failed computer system and lack of system failure preparedness.

When the system goes down the show comes to a halt and the calendars pile up.

A hardware failure caused most application of the EOIR computer system to shut down at the stroke of midnight April 12.  The system was down for almost six weeks, leading many to question how a failure of this magnitude could happen.  Data recovery specialists and teams worked to recover and restore data and applications according to news published on its website on May 19, 2014[3]. In restoring the system, IT teams worked to create new elements of information redundancy and monitoring to guard against future system issues.

Because of the computer failure, many immigrants in the court system have further rescheduled court dates in a backlogged system. AILA President Doug Stump stated, “We cheered the announcement this week that some initial fixes have been made. But the reality is that the breakdown delayed cases and created unnecessary bottlenecks.[4]

There are thousands of immigrant court respondents affected by the system failure.

The New York Post reported on the “computer meltdown” and noted how immigration courts had to use pen, paper and cassette tapes to manage cases manually without the computer system. Unable to access information on cases, some courts had to make decisions without full knowledge of particular cases before them.

Others did not get a pass or benefit of the doubt when the computers crashed. One immigration lawyer said it was like going back to the 80s. Lawyers were delayed and rescheduled, along with their clients when the system backlog prevented many from knowing if their case would actually be called when scheduled and if called, would anything be able to take place. This causes a huge problem for immigrant respondents with time sensitive matters and deadlines. A toll free phone number with case information has been playing the following message, “Due to system issues, the information on this has not been updated since midnight on April 12, 2014.[5]

What do you do if your case was delayed?

If your immigration court proceeding was affected and you either were not able to appear before the immigration court as scheduled or if nothing happened due to an inability to make an official record of proceedings you may need to take action with an attorney to file the necessary paperwork to assure you will receive a fair immigration hearing and due process allowed by law. Chicago immigration attorney, KiKi M. Mosley has been tracking this serious situation in and out of court and can help you if you have been affected by the immigration court system meltdown.

Attorney KiKi M. Mosley is licensed to practice law by the State of Illinois and Louisiana. She is skilled and experienced in complex immigration law issues including hearings before immigration courts and applications and procedures to correct clients’ records when things do not go as planned. For more information about the law firm, please visit www.KiKisLaw.com, and do not forget to “Like” the firm on Facebook and “Follow” on Twitter. You can also review Attorney Mosley’s endorsements on her Avvo profile.

[1] AILA: Immigration Court Computer Failure Emphasizes Need for Increased Funding. Released May 21, 2014.

[2] The U.S. Department of Justice website for the Executive Office for Immigration Review: EOIR Home.

[3] The U.S. Department of Justice Executive Office for Immigration Review, EOIR News of System Update, Monday, May 19, 2014.

[4] See AILA article above.

[5] Politico Blogs, Immigration court tech crash drags on. By Josh Gerstein, May 14, 2012.

Deferred Action for Childhood Arrivals program recipients can apply for DACA renewals as soon as late May

Contact your immigration attorney and get moving quickly so you do not lose your deferred status.

Contact your immigration attorney and get moving quickly so you do not lose your deferred status.

Over half a million Deferred Action for Childhood Arrivals (“DACA”) program recipients will have the opportunity to apply to renew their applications for Deferred Action. DACA was signed by President Obama on June 15, 2012 and became effective August 15, 2012 to defer removal action and give protection to undocumented young people who came to the U.S. as children and have actively sought an education or served in the armed forces. The opportunity to apply for DACA renewal will be available late in late May as explained in the April 9, 2014 notice published by the U.S. Citizenship and Immigration Services (“USCIS”) – Consideration of Deferred Action for Childhood Arrivals Process.

DACA program recipients DO NOT receive automatic renewals.

The DACA renewal form will be available late May 2014. Part of the renewal process requires applicants to submit evidence regarding any criminal histories or proceedings as well as any removal proceedings in which the applicant may be involved. The processing time for DACA renewals should be 120 days[1] according to USCIS. In its update, which is preliminary and subject to change, USCIS acknowledges that the number of applicants is significant and therefore it recommends DACA renewal applicants submit their applications between 120 and 150 days before their DACA expiration date.

The DACA program and policies are ripe for inclusion in comprehensive immigration reform. For example, the current policy does not include automatic renewal. It might be a good practice to allow conditional automatic renewals with a window of time for the applicant to submit their evidence of a lack of removal proceeding or criminal histories. As for now, there is no automatic renewal, which puts some DACA recipients at risk. It is possible the processing time exceeds expectation, some renewal applicants’ deferrals will expire, and those applicants will become unlawfully present which can lead to problems including loss of work authorizations.

Contact your immigration attorney and get moving quickly so you do not lose your deferred status.

Since there is a risk of losing deferred status, it is important that DACA renewal applicants act quickly to obtain all necessary information to help their attorney properly prepare and file the renewal form with required documentation. A lapse in legal status can cause significant problems for undocumented immigrants and it is strongly recommended that DACA renewal applicants seek advice and representation by an experienced licensed immigration attorney who has significant experience with complex immigration law and policy.

Chicago immigration attorney, KiKi M. Mosley closely follows updates in the DACA program and will share the final details regarding DACA renewals when the application is released by USCIS in late May. Attorney KiKi M. Mosley is licensed to practice law by the State of Illinois and Louisiana. She is skilled and experienced in complex immigration law issues including applications for temporary immigration relief and adjustments of immigration status. For more information about the law firm, please visit www.KiKisLaw.com, and do not forget to “Like” the firm on Facebook and “Follow” on Twitter. You can also review Attorney Mosley’s endorsements on her Avvo profile.

[1] American Immigration Council, Immigration Impact: USCIS Releases Information About DACA Renewal Process. By Patrick Turel, Apr. 10, 2014.

H-1B and other nonimmigrant work visas

There is a broad range of eligible professionals who make up the H-1B visa population.

There is a broad range of eligible professionals who make up the H-1B visa population.

Every year a limited number of nonimmigrant specialty workers have the opportunity to come to the U.S. on a temporary basis on employment-based visas.  Although these types of visas are geared towards professionals who hold a Bachelors degree or equivalent, information technology professionals account for a significant number of the beneficiaries of this type of temporary worker (H-1B) visas. The U.S. Department of State whose website contains more detailed explanations and resources issues fixed duration H-1B visas for eligible applicants[i]  who are outside the United States.  The USCIS website[ii] contains instructions and information on H-1B visas for professionals who seek to change their status from another nonimmigrant status or who seek to extend or amend their current H-1B status while they are in the U.S.

There is a broad range of eligible professionals who make up the H-1B visa population.

Eligible applicants for temporary worker visas must have the minimum of a have a Bachelor’s or equivalent.  Foreign degrees equivalent to the Bachelors and Masters should qualify for H-1B eligibility, however the degrees and work experience must be evaluated by an accredited evaluation service in the United States. The occupations in which foreign workers are engaged range from engineering and physical sciences to business, communication, and technologies. Service industry professionals including librarians, musicians, teachers, lawyers and judges may also enter the U.S. as nonimmigrants with H-1B visas in fixed duration and scope.

Limitations in temporary three-year periods of time and in limitations in the total number of new visas issued by the U.S. Department of State/USCIS each year differentiate the scope of H-1B visas from other temporary worker visas like the H-2A/B visas for temporary seasonal workers in agriculture or resorts, for example. There is also separate quota each year for Masters Degree holders that when reached allows Masters degree holders to be considered for visas initially allotted for Bachelor’s degree beneficiaries.  There are additional other types of work visas for unique circumstances and an experienced attorney should be consulted to ensure an application for the correct type of visa. Attorneys also help with soon to be expired visas, transfers, and applications for additional options to continue work, study or potential immigrant status in the U.S. based upon employment or family petitioners. 

H-1B visas are high competitive and applications are accepted annually beginning April 1st of each year for employment beginning October 1st of that same year.  In 2013, as we have seen in years previous, H-1B visa quotas were reached in one (1) week.  It is therefore essential to for companies to begin preparing immediately for their temporary worker needs.  To obtain an H-1B visa a petitioning company is legally obligated to pay for any and all filing fees and attorney’s fees as well as pay, at minimum, a federally determined prevailing wage as set by the Department of Labor. 

Families of H-1B workers may also apply to enter the U.S. with the H-4 visa, which has a separate process for approving applications, separate of the H-1B process. Family of worker visa recipients can be obtained from U.S. consulate offices in the originating country or USCIS processed as a change of status. Family members in the U.S. on H-4 visas may study at any university in the U.S. but they may not work in the U.S. under any circumstance. While in the U.S., an H-4 dependent must apply to change their immigration status and if they wish to work in the U.S., they can even apply to change to an H-1B visa, just like their originally eligible family member.

Immigration attorneys represent clients with the complex worker visa application process.

Applications for visas take several steps and must occur in proper order in accordance with the rules at the U.S. embassy where you apply. Experienced immigration attorneys know how to navigate the procedures involved in the application process, including the visa documentation and interview requirements, what a client should do to prepare, and what they can expect to happen. Additional information can be demanded during the processing period. Visa wait and processing times can be long and attorneys help with applications to expedite processing when it is appropriate.

Nonimmigrant professionals and their families who wish to enter the U.S. with temporary worker and family visas may contact the Law Offices of KiKi M. Mosley for assistance with their worker visa applications. Attorney KiKi M. Mosley is licensed to practice law by the State of Illinois and Louisiana. She is skilled and experienced in complex immigration law issues. Ms. Mosley has worked extensively with companies to provide for their H-1B visas, L-1 visas, and PERM needs.  For more information about the law firm, please tap/click here to visit the rest of the website, and do not forget to “Like” the firm on Facebook and “Follow” on Twitter or Google Plus.


[i] U.S. Department of State website: Temporary Worker Visas

[ii] U.S. Customs and Immigration Services: Temporary (Nonimmigrant) Workers

USCIS and U.S. Senators respond with measures pushing for relief for victims of Typhoon Haiyan/Yolanda

The massive devastation and lack of resources to clean up and start recovery makes the Philippines seem like a lost cause. Filipinos who might otherwise consider visiting their friends and family in the U.S. may today be considering moving in with them, at least on a temporary basis, until they can get back on their feet.

Filipinos may find relief in applying for temporary protected status (“TPS”).

Philippine nationals in the U.S. are also concerned about being deported to a country no longer able to receive them. In response, the “American Immigration Lawyers Association (“AILA”) and a growing list of lawmakers have been petitioning the federal government to grant TPS to Philippine nationals who are here on temporary visas or without legal status.[i]” The Department of Homeland Security designates TPS eligibility for countries when conditions prevent the safe return of their nationals. Conditions of this sort are ongoing wars, extraordinary conditions and natural disasters such as Typhoon Haiyan. The USCIS website[ii] contains a list of countries currently designated for TPS including: El Salvador; Haiti; Honduras; Nicaragua; Somalia; Sudan; South Sudan; and Syria.

Click/Tap (or copy and paste into your browser) the link to the petition page: Grant Temporary Protected Status (TPS) to Filipinos in the US to Sustain the Flow of Yolanda/Haiyan Relief Support.

Twenty senators sent the Obama administration a letter urging the grant of TPS to Filipino nationals. The senators stated that the conditions make the victims of Typhoon Haiyan eligible for the TPS designation and they urge prompt action. The letter requests an automatic extension of visas in categories where feasible and the temporary suspension of deportations to the Philippines and the use of alternatives to detention[iii].

USCIS responds with offers of relief for eligible Filipinos.

The United States Citizenship and Immigration Services (“USCIS”) acted, within a week of the typhoon hitting the Philippines on the 7th of November. On the 15th of November, USCIS released its statement offering immigration relief for eligible and affected Filipino nationals. Below is the bullet point list of relief measures listed on the USCIS website[iv]:

  • Change or extension of nonimmigrant status for an individual currently in the United States, even when the request is filed after the authorized period of admission has expired;
  • Extension of certain grants of parole made by USCIS;
  • Extension of certain grants of advance parole, and expedited processing of advance parole requests;
  • Expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
  • Expedited processing of immigrant petitions for immediate relatives of U.S. citizens and lawful permanent residents (LPRs);
  • Expedited adjudication of employment authorization applications, where appropriate; and
  • Assistance to LPRs stranded overseas without immigration or travel documents, such as Permanent Resident Cards (Green Cards). USCIS and the Department of State will coordinate on these matters when the LPR is stranded in a place that has no local USCIS office.

If you are a Filipino in the U.S. and/or are seeking TPS for yourself or a friend or family member you may contact the Law Offices of KiKi M. Mosley for assistance in reviewing your current status and to apply for whatever relief for which you may be eligible.

Attorney KiKi M. Mosley is licensed to practice law by the States of Illinois and Louisiana. She is skilled and experienced in complex immigration law issues. For more information about the law firm, please tap/click here to visit the rest of the website, and do not forget to “Like” the firm on Facebook and “Follow” on Twitter or Google Plus.

The Child Status Protection Act (CSPA) issues before the U.S. Supreme Court

Mayorkas v. Cuellar de Osorio. Set for argument on Tuesday, December 10, 2013.

Mayorkas v. Cuellar de Osorio. Set for argument on Tuesday, December 10, 2013.

To be heard by the U.S. Supreme Court this December 10, 2013 is the question whether children included as derivative beneficiaries on petitions filed by U.S. citizens are covered under the protection extended by the Child Status Protection Act, 8 U.S.C. §1153(h)(3). Cueller de Osorio’s mother, a U.S. citizen filed a petition for a visa (for a married daughter of a citizen) for her daughter in 1998 and on the petition, Cueller’s then 13 year-old son was listed as a derivative beneficiary. By the time his mother’s (the primary beneficiary of the visa petition) priority date for visa eligibility became current, the son “aged out” (losing “child” status) and the issue before the Court involves derivative visa eligibility and priority dates.

Will the court agree with the 9th Circuit that the derivative beneficiary’s priority date should be retained for purposes of being considered a “child” in light of the Child Status Protection Act?

The eligibility and priority date (and priority date retention) issues before the court involve the Child Status Protection Act (CSPA) and its rules for determining whether certain aliens qualify as “children” under the act for the purposes of obtaining visas or adjustments to their immigration status. The court may address and interpret the language of the law in determining what happens when a primary beneficiary (mom) by law, has a different priority date of eligibility than would the derivative beneficiary (son) whose immigration status could be affected based on the determination of the son’s visa eligibility.

The priority date is important to understanding the issues before the Court in this case. A limited amount of immigrant visas may be issued every year by law[i]. An immigrant visa number distributed by the U.S. Department of State is issued to visa applicants in limited numbers (226,000 per year for family sponsored preference categories and 140,000 per year for employment based preference categories) in order of the preference category and the individual’s priority date, used to determine their place in line, specifically stating the date upon which the individual can apply for an immigrant visa when one becomes available.  There are also per country limits that have led to backlogs that are sometimes over 20 years long for certain countries such as the Philippines, Mexico, China, and India.

Did the derivative beneficiary son properly “age out” or should he be given “child” status?

In this case, in 2005, the United States Citizen and Immigration Services (USCIS) denied a request for priority date retention under the CSPA, holding that Cuellar de Osorio’s son, at age 21 was ineligible for a derivative visa, despite her son being 13 when he was listed on his mother’s visa petition in 1998 as a derivative beneficiary.

CSPA became law August 6, 2002, and prior to its inception, a beneficiary (an alien who is sponsored by a relative or business, or has self-petitioned for an immigration benefit[ii]) who turned 21 years old any time before receiving permanent residence would not be a “child” for immigration purposes, hence the term “aging out” which CSPA may prevent. Aging out is an issue since the processing times for immigration petitions can be excessive. For purposes of immigration, a “child[iii]” is unmarried and under the age of 21 (as opposed to a “son” or “daughter” married and/or age 21 and over).

Definitions of “child(ren)” and retention of priority dates in the INA.

The Immigration and Nationality Act, in Section 1153(h)(3)[iv] defines the qualifications for “children” for the purposes of obtaining visas or immigration status adjustments as derivative beneficiaries of sponsored family member immigrants. The law is clear that an alien may qualify as “child” derivative beneficiaries on the filing date a visa petition. What’s unclear is what should happen if the putative “child” is 21 years old by the time the visa becomes available to the primary beneficiary. The Supreme Court must decide whether the Board of Immigration Appeals properly interpreted the law.

Section 1153(h)(3), Retention of priority date, states in pertinent part as follows: “If the age of an alien is determined under paragraph (1) to be 21 years of age or older for purposes of subsections (a)(2)(A) and (d) of this section, the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon the receipt of the original petition.”

In immigration law, the intersection of laws in the U.S. Code and USCIS policies are complex. Many immigrants fail to obtain legal status when they do not understand the nuances of immigration law. At the Law Office of KiKi M. Mosley, clients seek petitions for visas seeking to include derivative beneficiaries. Attorney KiKi M. Mosley is licensed to practice law by the State of Illinois and Louisiana. She is skilled and experienced in complex immigration law issues. For more information about the law firm, please tap/click here to visit the rest of the website, and do not forget to “Like” the firm on Facebook and “Follow” on Twitter or Google Plus.

Government shutdown: Many asylum courts are closed but USCIS is still processing applications and ICE is still making arrests.

Petitions for political asylum and non-emergency deportation cases are among the matters that could be delayed for months if the shutdown lasts more than a few days, according to immigration lawyers and advocates.

Petitions for political asylum and non-emergency deportation cases are among the matters that could be delayed for months if the shutdown lasts more than a few days, according to immigration lawyers and advocates.

Despite the temporary shutdown of the U.S. Government’s non-essential services, U.S. Citizenship and Immigration Services (“USCIS”) is processing applications and ICE officers are still making immigration arrests. Having said that, a recent ABC News article contains a list of ways the shutdown will affect immigration agencies, including immigration paperwork, enforcement, guarding the border, processing visas and passports and immigration courts. What few people might know is that USCIS is “almost entirely self-funded.” The article further explains that, “The fees they charge cover 95 percent of their budget, according to spokesperson Christopher Bentley.[i]

While immigration courts remain partly open, political asylum cases delayed which adds insult to injury to people already in a bad place.

“The shutdown is monumental for my clients most in need. Those who are in removal proceedings are facing years of further delay because only detained dockets are active and the asylum offices are greatly affected. These are the most vulnerable people in the immigration system.” Attorney KiKi M. Mosley.

Backups in asylum courts already make it difficult for undocumented immigrants who came to the U.S. seeking asylum from persecution in their home country. Currently 16 immigration courts are closed and 42 are still open, and 23 of them handle only detained immigrants. Reported in a recent Washington Post article, “The asylum process, advocates in the Washington area and elsewhere said, is especially backed up, with about 350,000 cases pending before immigration judges.[ii]” The article continues to report that delays in securing trial dates for asylum hearings could be months or years.

A Los Angeles attorney who works with the Public Counsel agency has a client who is a prime example of those victimized by the system: Mr. Didier Vakumba, 43, “a medical doctor who fled his native Congo five years ago after he said police jailed and brutalized him for revealing human rights atrocities to foreign monitors.”

Dr. Vakumba’s family and sick child with a brain tumor are now in limbo because the final judge’s signature is unavailable because the court was suspended due to the shutdown.

Doctor Vakumba and his family have spent several years waiting for his asylum petition to “work its way through the system.” While he’s been in California, his wife and children have not been with him and are in another country in Africa where they sought refuge. Vakumba’s petitions, under dubious circumstances, were approved by the immigration court to bring his family to the U.S. so his child with a brain tumor could receive emergency medical care. The shutdown brought everything to a halt and, because he is missing one more judge’s signature, from a court that has been suspended, Vakumba’s progress has also been suspended. “I am happy because I finally won my case, but I am frustrated, too,” Vakumba said Tuesday afternoon, speaking a mixture of French and Spanish. “I have been waiting a very long time to see my family.”

While many people say they are not affected by the current shutdown, some families like Dr. Vakumba’s are decimated over the tragedies in which they find themselves, waiting for stubborn politicians to agree on matters to get the country back on track and restore the hopes and dreams of asylum seekers. If you would like more information about the shutdown and how it may affect your asylum case or know someone seeking refuge, please be in touch with the Law Offices of KiKi M. Mosley.

Attorney KiKi M. Mosley is licensed to practice law by the State of Illinois and Louisiana. She is skilled and experienced in complex immigration law issues. For more information about the law firm, please tap/click here to visit the rest of the website, and do not forget to “Like” the firm on Facebook and “Follow” on Twitter or Google Plus.


[i] ABC News: Here’s How the Shutdown Affects Immigration Services. By Ted Hesson, Oct. 1, 2013.

[ii] The Washington Post: Immigration courts remain partly open but political asylum cases delayed. By Pam Constable, Oct. 1, 2013.