For the "enforcement first" or "enforcement only" people

Yesterday, a client of mine had an immigration interview. She is in her 20's and is married to a U.S. citizen. She and her husband were high school sweethearts and still act like newlyweds even though they've been married for more than 2 years. Cute couple.

Her problem is that she was ordered deported in 2004. Not her fault, and she wasn't even there when it happened. She came to the U.S. when she was 5 years old. Her parents filed immigration applications for the whole family, but they were ultimately denied (long story and not really relevant to my client's case) and all the appeals were eventually denied, although that process took years. While all this was going on, my client was growing up, going to school, falling in love - basically leading a fairly normal life.

Now, since my client initially entered the U.S. legally, she is eligible to get her greencard through her marriage. Moreover, even though she has an outstanding deportation order, she is entitled to have that order rescinded if her marriage case is approved. That is what I was in the process of doing when we all went to the interview yesterday.

Unfortunately, we got an interviewing officer with a misplaced sense of duty. Once he discovered the 2004 deportation order, he immediately notified ICE instead of simply completing the interview. We were able to finish the interview eventually (after a supervisor intervened), but ICE had already been summoned, and you can't unring that bell.

Once ICE arrived, I immediately started "doing my thing" to see what (if anything) I could do to prevent my client from being arrested and deported. The ICE officers were very understanding and sympathetic (which has almost always been my experience with ICE - despite what you read in the media) but had no discretion; once they have a person subject to a final deportation order, they are required to detain her.

Fortunately, mandatory detention is not the same as mandatory deportation. Also,ICE was not that busy, and my case had gained the sympathetic ear of the ICE supervisor on duty yesterday. He personally escorted my client to the detention facility (which is in the same building - another fortunate circumstance) and personally spoke with the Detention supervisor (who also knew me from previous cases I had handled - yet another fortunate circumstance) who agreed to release my client under an Order of Supervision. She is still technically "detained" and has to report to ICE periodically, but she can sleep at home, in her own bed, with her husband, and otherwise live life normally while I am working on her case.

Since I was there, knew what I was doing and caught a couple of breaks, my client will be OK; she'll get her greencard and yesterday will become just a scary story she can tell her children someday. However, there are literally thousands of "illegals" with situations very, very similar to my client's who don't catch those breaks. As a result, they are deported from the U.S.

This case exemplifies the need for comprehensive immigration reform (i.e., not just "enforcement first" or "enforcement only") because my client was very nearly chewed up and spit out by conflicting immigration laws. The "benefits side" of the law says that people like my client can get greencards even with a final deportation order, while the "enforcement side" of the law says that all final deportation orders must be enforced. Comprehensive reform would (hopefully) reconcile these two provisions so they would work in harmony. Both "enforcement first" and "enforcement only" solutions will, the vast majority of the time, result in people like my client being deported from the U.S.

So, what do you enforcement guys think? After reading my story, do you still think "enforcement first" or "enforcement only" is the way to go? If so, I'd love to know why. It's been my experience that few people are truly "heartless" so there must be some reason why you think it would be OK to deport my client; I just can't imagine what that reason would be.

Politics for the Potential Immigrant

You might not believe it considering all the controversy surrounding immigration in the U.S., but we have one of the most—if not the most—wide open and liberal immigration policies in the world. Every year, more than 400,000 foreign nationals legally move to the United States.

The United States as a society (not necessarily politicians, mind you) seems to have realized the potential immigrants bring to this country. Numerous studies have shown that immigrants are more likely than U.S. citizens to start businesses, earn advanced degrees and fill needed positions in the workforce that many citizens refuse to take themselves.

But it’s clearly not liberal enough because every year, just as many people enter the country illegally. Consequently, immigration has become a major political rallying point, dividing popular opinion and resulting in drastic measures by lawmakers nationwide. One great example was the passage of a law called SB-1070 in Arizona in 2010 that gave local police the power to stop and question anyone they might think is in the country illegally. However, the U.S. Supreme Court ruled much of the law unconstitutional before it took effect.

On the other side of the aisle, lawmakers have tried to find ways to deal fairly with the millions of undocumented immigrants already living in the U.S., working, raising families and contributing to society. One such example is the DREAM Act, which would offer a pathway to citizenship for millions of undocumented immigrants, allowing them to live their lives in the light of day. The implications would be far-reaching. It is estimated that just in Los Angeles, The DREAM Act would benefit over 32,000 undocumented youths between the ages of 13 and 19.

The DREAM Act has been introduced to Congress a handful of times in the last few years and has failed every time. Efforts to reform the legal immigration system have been equally frustrated, though well-intentioned lawmakers and citizen activists continue to speak out in hopes that these reforms will come. But, for the time being, hopeful U.S. immigrants are stuck with the current laws and have no choice but to navigate the current maze of rules and regulations which make up our broken immigration system.

There are quite a few options available to someone wanting to immigrate to the U.S. Most people have heard of Lawful Permanent Residency (“green card”). And of course, marrying a U.S. citizen will get you into the country or keep you here, at least most of the time. But there are numerous lesser-known visas available for immigrants who want to come work temporarily in the U.S.H-2A visas are available for individuals seeking work in the agricultural industry or other seasonal occupations. Highly-skilled immigrants who can fill needed positions  can obtain H-1B visas (although there has been a shortage of H-1B visas for the past several years. E visas are available for immigrant entrepreneurs who want to invest in the U.S. economy, students can come on F or M visas and more.

The DREAM Act is before Congress again, this time as part of S. 744, the Immigration Reform Bill currently wending its way through Congress. Although not perfect, most immigration advocates agree it is a very good Bill that will solve many of the problems created by the current, broken system.

Unfortunately, nobody knows when, or if S. 744 will become law, and until then we need to work within the current maze of hard to understand and often conflicting rules and regulations of the current system. We can only hope that relief comes soon. We have already waited too long.

Immigration Reform Not Here Yet - But Progress Is Being Made

Today, the President was briefed on the Immigration Reform Bill soon to be introduced in the Senate. The following is is statement following the briefing:


The White House
Office of the Press Secretary

Statement by the President on Commonsense Immigration Reform

This afternoon, Senators Schumer and McCain briefed me on the bipartisan immigration reform bill that they have drafted with their colleagues in the Senate. This bill is clearly a compromise, and no one will get everything they wanted, including me. But it is largely consistent with the principles that I have repeatedly laid out for comprehensive reform. This bill would continue to strengthen security at our borders and hold employers more accountable if they knowingly hire undocumented workers. It would provide a pathway to earned citizenship for the 11 million individuals who are already in this country illegally. And it would modernize our legal immigration system so that we’re able to reunite families and attract the highly-skilled entrepreneurs and engineers who will help create good paying jobs and grow our economy. These are all commonsense steps that the majority of Americans support. I urge the Senate to quickly move this bill forward and, as I told Senators Schumer and McCain, I stand willing to do whatever it takes to make sure that comprehensive immigration reform becomes a reality as soon as possible.

This is the legislation promised by the Senate back in January. Since Senator Rubio said in January that legislation would not be ready until March, at the earliest, the legislation seems to be on track and has not (yet) hit any significant roadblocks - of course, it hasn't been introduced yet; that is where the "fun" begins.

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.