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Visa Regression: Department of State Tries to Turn Back the Clock on Central American Juvenile Refugees, but Just Turns its Back

The United States Department of State last month issued their May 2016 Visa Bulletin indicating that the yearly EB4 visa limits have been reached for applicants from Honduras, Guatemala, and El Salvador. The EB4 visa allows certain immigrants including “Special Immigrant Juveniles,” who are unaccompanied minor who have been designated by a family court to be dependents or wards of the state as a result of parental abandonment or abuse. As a result of the “visa retrogression,” applicants from Central American countries who sought to obtain legal status through the filing of a self-petition (Form I-360) after January 1, 2010 will no longer be able to obtain a visa or adjustment of status until new visas become available. The six-year regression for the acceptance of these applications is a response to the record number of minors who have entered the country after fleeing violence in their Central American home countries, most of whom will be seriously negatively affected by this change.

Special Immigrant Juveniles trying to obtain legal residency in the United States must first have a visa available to them in order to file for their green card. The exhaustion of available visas for these children means that they cannot file for their permanent residency until new visa numbers become available – which may be several years from now.

The regression of this new cutoff date for applications creates a host of problems for these immigrants. For those already facing deportation, the granting of a visa or the acceptance of an I-485 are grounds to stop deportation. The absence of an available visa will significantly decrease the chance of stopping deportation, even though in many cases they already applied years ago. Moreover, Special Immigrant Juvenile status applicants cannot apply for employment authorization until they have filed their application for permanent residency.

Prospective petitioners are urged to continue filing I-360 forms for Special Immigrant Juvenile status as there is no limit to how many of these may be approved. Filing the I-360 as early as possible will put the applicant on the waitlist for their green card by establishing the “priority date” which must be met before visas can be distributed whenever they become available. Properly filing the I-360 will also protect against aging out of eligibility for Special Immigrant Juvenile status while waiting for other applications to proceed.

The wave of Central American refugees, many of them minors, is in response to record levels of violence in the Honduras, Guatemala, Ecuador and El Salvador. Gangs, organized crime, and drug cartels have all contributed to an endemic climate of conflict in the region. For example, El Salvador’s murder rate in 2011 was ten times higher than the global average.

In no uncertain terms, this log-jam is a direct result of the Obama Administration’s discriminatory prioritization of people for deportation based exclusively on nationality.  Instead of treating unaccompanied minors fleeing violence as the humanitarian crisis that it is, the Administration has treated it like a political crisis that it is not.  Children who would otherwise have time to obtain permanent residency are forced into a byzantine system that will now deny them the opportunity to obtain status in the U.S. merely due to a waitlist.   In order to handle the surge of undocumented immigrants crossing the border, the Obama Administration put their cases into a process of expedited proceedings that was meant to hasten their return to the violence from which they fled. This in turn led to an immediate and excess demand of EB4 visas that far exceeded their allotted supply. The court proceedings themselves have been expedited (many cases are being completed in weeks, as opposed to years for people of a different national origin). It is a special kind of irony that these immigrants have been put into expedited proceedings only to be left waiting indefinitely for a visa, and with one less fighting of resisting deportation charges.

The Department of State and Congress could remedy this problem by making more EB4 visas available. Nearly six years, which is how far back the deadline was moved when the new date was announced to be 2010, is a long time to wait for anybody. But it is even longer for vulnerable minors waiting to hear what their fate will be. This is not to mention that many will never make it to a time when their applications for permanent residency could even be accepted as they will be even more likely to be deported without the prospect of a pending visa to protect them. The Administration could also help alleviate this problem by redefining their guidance on expedited proceedings to allow removal proceeding delays and continuances for those who are yet to have their cases adjudicated.  But alas, this is an election year, and so unfortunately, the most vulnerable – legitimate refugees and asylum seeking children – will fall victim to politics.


-Lucas Caress

Bardavid Law