Senate Proposal Is A Good Start

Yesterday, January 28th, 2013, a bi-partisan group of Senators issued a 4 page memo outlining their vision for immigration reform. The memo admits that our current immigration system is broken, and discusses, among other things both a path to legalization for undocumented aliens as well as a new path to permanent residency for graduates from U.S. colleges and universities who receive graduate degrees (i.e., either Master's or Ph.D.'s) in a STEM (Science, Technology, Engineering or Mathematics) discipline.

This is an excellent sign that Congress recognizes the importance of immigration reform and is making reform a high priority. The memo has already reinvigorated public debate on this topic and the White House has confirmed that it has a working draft of a Bill and is merely waiting for Congress to come up with a Bill of it's own before introducing the President's Bill. However, this is just the very beginning of a very long, difficult process which is likely to take most of 2013. Senator Marco Rubio, one of the author's of the memo, estimates that draft legislation based on the memo will not be ready for mark-up until at least late March.

In addition, there is some troubling language in the memo that I hope will be addressed and resolved during the drafting of the actual Bill:

1.  The memo would require the effectiveness of the Bill's border security provisions to be confirmed by a commission composed of politicians and "community leaders living along the Southwest Border." Benefits outlined in the legislation for undocumented aliens will not be implemented until the effectiveness of border security has been confirmed by the commission. Moreover, although they will receive no benefits initially, the undocumented population will be required to register with the government and simply wait for this commission to tell them whether and when they will be able to become documented.

2.  The memo indicates that special treatment should be given to undocumented individuals working in the Agricultural industry.

The above provisions are troubling because they could completely stifle actual reform and encourage a flood of fraudulent applications which would further discourage true reform in the future. First, the memo does not mention how the "effectiveness" of border security is to be measured. If this is left to the commission, it is quite possible that it will never conclude that the measures are effective. This would mean that the millions of undocumented aliens registered with USCIS will never receive any benefits. They will, however, through the registration process, have told immigration officials who they are and where they can be found.

Second, we have tried to give agricultural workers special treatment before, and that turned out to be, at best, ineffective. Congress passed the Special Agricultural Worker (SAW) program in 1986 that required, among other things, that an alien had to have worked as an agricultural worker in order to receive benefits. This resulted in a huge number of applications supported by either counterfeit or fraudulent employment letters. This problem caused years-long delays in adjudications and prevented even legitimate agricultural workers from ever receiving the intended benefits. Unless the Bill effectively addresses the problems created by the previous SAW program, we will just see more of the same. Even worse, such massive fraud will cause anti-immigration groups to become even more entrenched in their positions by confirming their beliefs that immigrants are bad for this country.

Again, this is just a memo. We won't see a Bill for at least another two months. The memo has brought immigration reform into the forefront of public debate and that is a very good thing. However, although it is undeniably a very good start, it is only a start; there is still a long way to go.

President Obama has announced that he is expanding the eligibility criteria for “deferred action” to include individuals who would be protected by the DREAM Act. Even though the DREAM Act has not become law yet, this new policy will prevent the unjust deportation of individuals who were brought to the United States at a very young age and who think of this country as their only home. Individuals who are granted deferred action are entitled to apply for work authorization.

This is not a new law, nor is it “immigration reform.” Deferred action has existed for years. President Obama has merely expanded, as a matter of policy, the eligibility criteria for deferred action to include DREAMers. While this is a significant benefit, it does not give individuals status or allow them to petition family members, vote in elections, etc.; individuals granted deferred action are still out of status and are still considered undocumented aliens. However, they will stop accruing unlawful presence and, if they can show economic necessity, they will also be able to obtain a work permit. 

Individuals otherwise eligible under these new criteria can apply for deferred action even if they are currently in removal proceedings, are in immigration detention, or have already been ordered removed by an Immigration Judge. Individuals who are not in detention and have never been in proceedings can also apply, but affirmative application procedures for these individuals have not yet been been implemented.

This new policy was announced on June 15, 2012. However USCIS has announced that they will not have  procedures in place to accept and process affirmative applications for approximately 60 days. This means that applications for individuals who are not in detention and who have never been in removal or deportation proceedings cannot be filed until approximately the middle of August, 2012. Individuals currently in detention and/or in removal proceedings should consult with their attorney regarding this new policy.

Since deferred action is not a new benefit. Since the expanded eligibility criteria are known, evidence and other information required for the application can be prepared in advance so that the application itself can be filed the moment USCIS starts accepting affirmative applications. However, those individuals needing to submit defensive applications (because they are currently in detention or in removal proceedings or have an outstanding Removal Order) will need to consult with their attorney right away. The policy is now in place so individuals needing to submit defensive applications should be able to do so immediately.

President Obama Needs to Stimulate Employment, Not Hinder Employment

The jobless rate reached 9.8 percent in September and the average hourly work week fell to 33. This is obviously a problem, since consumer spending accounts for about 70 percent of the economy and people who are out of work, or who have had their hours reduced, tend not to shop as much, for some reason.

At the same time, the Obama administration, using new programs such as eVerify and iCERT, and by imposing more restrictive employment eligibility verification requirements, is both forcing U.S. companies to fire workers and making it more difficult for U.S. companies to hire qualified workers. I voted for the man, and I'm still hopeful he can turn things around, but what he is doing to the job market mystifies me.

President Obama has decided that you and I should not be allowed to work unless there is an absolute guarantee that we are legally allowed to work in the job being offered. That sounds great, on the surface. In reality, however, it means that, even if you and I are, in fact allowed to work, an employer still can't hire us if the employer can't verify that we are legally authorized to work. Even if the employer is able to verify us, the employer may still be unable to hire us if the government can't verify the employer is authorized to hire people. These verification procedures rely on IRS and SSA databases which, the government admits, are neither perfect, nor up to date. As a result, people who are in fact legally able to work are being terminated, or refused employment, because these flawed databases can't provide the necessary verifications.

Although I certainly agree that undocumented workers are a problem that needs to be addressed, President Obama's timing, as well as his methods, need to be reconsidered. People who can work need to be allowed to work; employers who want to hire people need to be allowed to hire people. I have no problem with the concept of an employment verification process, but the current process is too much of an impediment to the hiring process; it takes too long, is too difficult, and still results in wrongful denials and terminations. With the jobless rate at 9.8 percent and rising, the current verification process is a really, really bad idea.

Approximately 18,300 H-1B Numbers Still Available

USCIS announced today that, as of September 25, 2009, only 46,700 cap-subject H-1B numbers have been used from the fiscal 2010 allotment of 65,000. This means approximately 18,300 numbers remain available.

USCIS' fiscal year runs from October 1st to September 30th, so fiscal 2010 starts today (Happy New (fiscal) Year!). This means, among other things, that people holding fiscal 2010 H-1B approvals are probably starting work today. Those still waiting for fiscal 2010 approvals can't start work yet, but now they can start immediately upon approval, provided their petition specified an October 1st start date.

The filing window for fiscal 2010 H-1B petitions opened on April 1, 2009, and approximately 42,000 petitions were filed almost immediately. In the 6 months since April 1st, only an additional 4,700 applications have been filed, an average of less than 800 applications per month. However, there were approximately 1600 H-1B filings in September, a dramatic increase over previous months. This increase could have been due to the imminent approach of October 1st, or it could be an indication of a recovering economy, or perhaps a combination, or perhaps something else entirely. Only time will tell, so I'll continue to monitor the filing numbers in the months ahead.

Whatever the reason for the increase in filings in September, if filings remain constant at 1,600 per month, we may not run out of H-1B numbers this year. That hasn't happened since 2003, when the allotment was 195,000. The allotment reverted to 65,000 in 2005.

Expanding Immigration Fraud Investigation in NYC

New York Attorney General Andrew M. Cuomo has announced his office is issuing more than 30 additional subpoenas as part of the States expanding investigation into immigration fraud. You can read the press release here. Illegal and unscrupulous practices by non-lawyers such as "Notarios" and "Immigration Consultants" have been a huge problem in the immigration community for years throughout the U.S., not just in New York.

USCIS Provides Information on Employment-Based Backlogs

A lot of people have been waiting for a very long time for their greencards due to backlogs in employment-based immigrant visas. USCIS recently published Questions & Answers: Pending Employment-Based Form I-485 Inventory regarding this issue and also published its current (as of August 25, 2009) inventory of pending employment-based I-485's.

There are a lot of things we still don't know. For example, we still don't know how many visa numbers are allocated to each preference category each month. However this inventory information is at least more information than we had previously.