President Obama is Taking Action on Immigration: Presidential Memorandum — Modernizing and Streamlining the U.S. Immigrant Visa System for the 21st Century

The White House
Office of the Press Secretary

For Immediate Release November 21, 2014
Presidential Memorandum — Modernizing and Streamlining the U.S. Immigrant Visa System for the 21st Century

November 21, 2014

MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES

SUBJECT: Modernizing and Streamlining the U.S. Immigrant Visa System for the 21st Century

Throughout our Nation’s history, immigrants have helped the United States build the world’s strongest economy. Immigrants represent the majority of our PhDs in math, computer science, and engineering, and over one quarter of all U.S.-based Nobel laureates over the past 50 years were foreign-born. Immigrants are also more than twice as likely as native-born Americans to start a business in the United States. They have started one of every four American small businesses and high-tech startups, and more than 40 percent of Fortune 500 companies were founded by immigrants or their children.

But despite the overwhelming contributions of immigrants to our Nation’s prosperity, our immigration system is broken and has not kept pace with changing times. To address this issue, my Administration has made commonsense immigration reform a priority, and has consistently urged the Congress to act to fix the broken system. Such action would not only continue our proud tradition of welcoming immigrants to this country, but also reduce Federal deficits, increase productivity, and raise wages for all Americans. Immigration reform is an economic, national security, and moral imperative.

Even as we continue to seek meaningful legislative reforms, my Administration has pursued administrative reforms to streamline and modernize the legal immigration system. We have worked to simplify an overly complex visa system, one that is confusing to travelers and immigrants, burdensome to businesses, and results in long wait times that negatively impact millions of families and workers. But we can and must do more to improve this system. Executive departments and agencies must continue to focus on streamlining and reforming the legal immigration system, while safeguarding the interest of American workers.

Therefore, by the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to modernize and streamline the U.S. immigration system, I hereby direct as follows:

Section 1. Recommendations to Improve the Immigration System. (a) Within 120 days of the date of this memorandum, the Secretaries of State and Homeland Security (Secretaries), in consultation with the Director of the Office of Management and Budget, the Director of the National Economic Council, the Assistant to the President for Homeland Security and Counterterrorism, the Director of the Domestic Policy Council, the Director of the Office of Science and Technology Policy, the Attorney General, and the Secretaries of Agriculture, Commerce, Labor, and Education, shall develop:

(i) in consultation with private and nonfederal public actors, including business people, labor leaders, universities, and other stakeholders, recommendations to streamline and improve the legal immigration system — including immigrant and non-immigrant visa processing — with a focus on reforms that reduce Government costs, improve services for applicants, reduce burdens on employers, and combat waste, fraud, and abuse in the system;

(ii) in consultation with stakeholders with relevant expertise in immigration law, recommendations to ensure that administrative policies, practices, and systems use all of the immigrant visa numbers that the Congress provides for and intends to be issued, consistent with demand; and

(iii) in consultation with technology experts inside and outside the Government, recommendations for modernizing the information technology infrastructure underlying the visa processing system, with a goal of reducing redundant systems, improving the experience of applicants, and enabling better public and congressional oversight of the system.

(b) In developing the recommendations as set forth in subsection (a) of this section, the Secretaries shall establish metrics for measuring progress in implementing the recommendations and in achieving service-level improvements, taking into account the Federal Government’s responsibility to protect the integrity of U.S. borders and promote economic opportunity for all workers.

Sec. 2. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department, agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

(d) The Secretary of State is hereby authorized and directed to publish this memorandum in the Federal Register.

BARACK OBAMA

In Scialabba v. Cuellar de Osorio Supreme Court splits 5-4 on Part of Child Status Protection Act

LexisNexis:
Scialabba v. Cuellar de Osorio, 2014 U.S. LEXIS 3991 (June 9, 2014): The BIA’s textually reasonable construction of the Child Status Protection Act’s ambiguous language was entitled to deference, meaning that an aged-out “child” cannot retain his or her priority date if a new petitioner is needed.
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The Supreme Court granted certiorari to resolve a circuit conflict as to the meaning of INA §253(h)(3), 8 U.S.C. §1153(h)(3), part of the Child Status Protection Act. The Court (Kagan, joined by Kennedy and Ginsburg) began with a description of the family-based visa process, an explanation of the CSPA, and the facts of Matter of Wang [enhanced opinion] and the two cases consolidated in the Supreme Court. The cases involved children of beneficiaries of either F3 or F4 beneficiaries. The children aged out while their parents waited for their visas. Their parents then filed petitions to bring in the children, and objected to the children being given priority dates based on the approval dates of the new petitions instead of the petitions of which the children were derivative — not principal — beneficiaries. The key was what Congress meant by “the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”

The court explained that §1153(h)(3) is “Janus-faced,” in that first part covers all aged-out family-based beneficiaries, but the key language “looks another way, toward a remedy that can apply to only a subset of those beneficiaries—and one not including the respondents’ offspring.” The Court ruled that, when the CSPA was passed, “automatic” meant that the conversion must occur “seamlessly,” with the same petitioner and no decisions, contingencies, delays, or even new filing. Likewise, “conversion” involves only a “mechanical” process. The Court added that interpreting the language otherwise would violate the “core premise” of the family-based system: that each beneficiary needs a “qualified” petitioner — that is, someone vetted by the immigration authorities, not swapped in. Furthermore, the Court observed that at the most logical moment for conversion, the putative replacement petitioner is not yet eligible to petition, because he or she is not yet an LPR. The court rejected the applicants’ arguments that every aged-out beneficiary can automatically convert, that the priority date can be retained even without automatic conversion, and that the BIA’s method of resolving any statutory ambiguity was arbitrary and capricious. However, the Court pointed out that it was merely deferring to the BIA’s construction, not saying that it was the only reasonable one. “Confronted with a self-contradictory, ambiguous provision in a complex statutory scheme, the Board chose a textually reasonable constructions consonant with its view of the purposes and policies underlying immigration law.”

The Chief Justice (joined by Scalia) concurred in the judgment, agreeing that §1153(h)(3) was ambiguous, but not that the first part pointed the opposite way from the second. Justice Alito dissented, saying that there was an appropriate category to which to convert, and so the applicants’ petitions should have been converted and original priority dates retained. Justice Sotomayor (joined by Breyer and for everything but one footnote by Thomas) also dissented. She wrote that §1153(h)(3) was unambiguous that any aged-out child in any of the family-based categories should be allowed to keep his or her priority date.

NOTE: For more on this subject, see Charles Gordon et al., Immigration Law and Procedure §36.04; David Froman, De Osorio v. Mayorkas, 2012 U.S. App. LEXIS 20177 (9th Cir. Sept. 26, 2012) (en banc) [enhanced opinion]: Suggestions for Implementing Court’s Ruling Upholding Child Status Protection Act Coverage for Over-Twenty-One Derivative Beneficiaries: An Emerging Perspective, 2012 Emerging Issues 6736

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