Visa Lawyer Blog

It is tempting to imagine that the Department of Homeland Security (DHS) has adopted a kinder and more just approach to its immigration enforcement mission. After all, the department announced in recent days that it will henceforth focus its enforcement efforts on “high priority” immigration cases; that is, those cases involving serious criminals and individuals who are a threat to public safety or national security. While this is a welcome, long overdue announcement, we must keep in mind that there are still DHS enforcement policies in place that are in dire need of repair.

For instance, according to a story in the New York Times earlier this month, U.S. immigration agents stationed along the U.S.-Mexico border have taken to detaining and sometimes arresting unauthorized immigrants as they try to leave the United States and return to Mexico. In other words, after pouring billions of dollars into immigration enforcement programs to make the United States as unwelcoming as possible to unauthorized immigrants, the Obama Administration has decided to make their departure just as difficult and to torment them as they leave. This policy is as nonsensical as it is cruel.

To be fair, the Administration is snaring unauthorized immigrants as it attempts to do what previous administrations have not: stem the flow of drug money and guns from the United States to Mexico, into the waiting arms of drug cartel leaders. But this neither explains nor justifies why immigration agents are arresting immigrants who have no connections to drug money or gun smuggling—and who are leaving the country. As the Times notes, even some vehemently anti-immigrant groups oppose this practice on the grounds that it slows, and perhaps even discourages, the departure of unauthorized immigrants from the country. In a surreal moment last year, the president of the nativist organization Americans for Legal Immigration issued a statement saying that:

“This is about the only situation we would ever advocate that our immigration laws be waived. We want to encourage the illegals to leave America on their own and thus we ask Obama to provide them safe passage out of America.”

When questioned about its illogical policy, the Administration resorts to a generic law-and-order explanation. An anonymous “administration official” told the Times: “We’re not trying to discourage anyone from leaving, but we do want to send the message that there are consequences for breaking immigration laws.”

As Greg Siskind points out in the AILA Leadership Blog: “Bad policies have consequences, as well. Unfortunately, everyone seems to have figured this out but the officials carrying out the bad policy.” Apparently, the Obama Administration doesn’t see the irony of making it hard for unauthorized immigrants to leave the county after expending so much time and effort telling them to leave the country.

A federal judge temporarily blocked enforcement of Alabama's new law cracking down on illegal immigration, ruling Monday that she needed more time to decide whether the law opposed by the Obama administration, church leaders and immigrant-rights groups is constitutional.

The brief order by U.S. District Judge Sharon L. Blackburn means the law — which opponents and supporters alike have called the toughest in the nation — won't take effect as scheduled on Thursday. The ruling was cheered both by Republican leaders who were pleased the judge didn't gut the law and by opponents who compare it to old Jim Crow-era statutes against racial integration.

Blackburn didn't address whether the law is constitutional, and she could still let all or parts of the law take effect later. Instead, she said she needed more time to consider lawsuits filed by the Justice Department, private groups and individuals that claim the state is overstepping its bounds.

The judge said she will issue a longer ruling by Sept. 28, and her temporary order will remain in effect until the day after. She heard arguments from the Justice Department and others during a daylong hearing last week.

Similar laws have been passed in Arizona, Utah, Indiana and Georgia. Federal judges already have blocked all or parts of the laws in those states.

Among other things, the law would require schools to verify the citizenship status of students, but it wouldn't prevent illegal immigrants from attending public schools.

The law also would make it a crime to knowingly assist an illegal immigrant by providing them a ride, a job, a place to live or most anything else — a section that church leaders fear would hamper public assistance ministries. It also would allow police to jail suspected illegal immigrants during traffic stops.

Finding a way to curtail public spending that benefits illegal immigrants has been a pet project of Alabama conservatives for years. Census figures released earlier this year show the state's Hispanic population more than doubled over a decade to 185,602 last year, and supporters of the law contend many of them are in the country illegally.

Isabel Rubio, executive director of the Hispanic Interest Coalition of Alabama, which is among the groups that sued over the law, hopes Blackburn will block it entirely but was happy with the temporary reprieve.

"We are pleased that Judge Blackburn is taking more time to study the case," she said.

Republican Gov. Robert Bentley said he would continue to defend the law, and GOP leaders in the House and Senate praised Blackburn — a Republican appointee — for taking time to fully consider the law.

"We must remember that today's ruling is simply the first round in what promises to be a long judicial fight over Alabama's right to protect its borders," said House Majority Leader Micky Hammon of Decatur. "To put it in sports terms, it is the first half-inning of the first game of a seven-game World Series."

While the Obama administration contends the state law conflicts with federal immigration law, state Sen. Scott Beason, R-Gardendale, contends the federal government isn't doing its job enforcing immigration laws. Beason said that he spent years researching immigration law to help write the 70-plus page law, and that it's unrealistic to expect a judge to go through it all in a few days.

"You just can't do that," he said.

As many of you may know the DOL has suspended issuing prevailing wage determinations for several weeks now. Such determinations are essential to start any PERM case.

On Wednesday, August 24, 2011, AILA received reports from members that PERM prevailing wage determinations are beginning to be received for requests submitted in early June 2011. Additionally, AILA has been in discussions with other stakeholders on possible courses of action, including individual mandamus actions, if DOL does not resume issuing prevailing wage determinations promptly.

The following are a few questions that were brought up to the DOL in light of the recent delays, see what they responded:

Q: Could DOL permit some ETA 9089 PERM filings to be submitted before the prevailing wage is issued, and allow the employer to provide the wage determination after filing? (This was asked several times, in the context of filing without a prevailing wage determination for special handling cases, for aging out children, and for AC21 eligibility).

A: DOL’s response to this was no. The regulations require that a wage determination be issued before any ETA 9089 is filed, and they cannot waive this requirement. DOL also indicated that any ETA 9089 filed without a wage determination would likely be denied as non-compliant.

Q: Could DOL extend the validity of previously issued ETA 9141s, particularly those issued in April, May and June, which had a limited 90 day validity? Extending the validity dates could permit the employer to file a PERM application.

A: DOL stated that under the regulations, it is possible to file a PERM application after the prevailing wage expires, provided that the recruitment has begun after the wage was issued. DOL indicated that it would not extend the validity of existing PWDs.

Q: What is the status of correcting the iCERT system to include ACWIA wage data? Several occupations appear to be missing from the ACWIA wage database, which means that employers cannot use these codes on LCAs or wage requests.

A: DOL advised that it is aware of this problem but that it has tabled any solution until it has cleared the H-2B wage redeterminations.

We have also started receiving certifications filed in June. As of this writing, the DOL has not issued any announcement regarding resumption of action on PWD requests. Thus, it is too early to know if the DOL is returning to business as usual with regard to PWD requests. The PWDs we have received were requested in early June 2011. Many additional PWD requests continue to await action. We will keep you posted.

Reflecting a change in deportation policy, the Obama administration has dropped its attempt to remove a member of a same-sex California couple who overstayed his visa.

The announcement in a case pending before an immigration judge in San Francisco represents the administration's decision to put a greater focus on deporting criminals and less emphasis on removing illegal immigrants who are otherwise law-abiding and have family ties in the United States.

Families, the administration has concluded, include gay and lesbian couples.

As a result, Alex Benshimol, a Venezuelan who overstayed his visa after entering the country in 1999, will not be deported.

Benshimol, 46, runs a pet-grooming business and lives with his husband, Doug Gentry, 53, an information technology consultant, in Cathedral City (Riverside County). The couple married last year in Connecticut.

The government's decision was "like waking up from a bad dream," Gentry said Monday in a statement released by the couple's lawyer. "The constant fear of exile or separation is over."

Ending the case was consistent with the administration's "current priorities focusing on convicted criminal aliens and those who pose a threat to public safety," U.S. Immigration and Customs Enforcement, which is in charge of deportation policy, said Monday.
No guarantees in future

No guarantees in future

Even so, the Defense of Marriage Act prohibits Benshimol from applying for legal residency, the first step toward possible citizenship. Although his deportation case is over, a future administration could try to reinstate it.

DOMA, now being challenged in court, clouds the immigration status of thousands of others in same-sex relationships, including Anthony Makk, an Australian-born San Francisco resident whose visa is about to expire and who is the caregiver for his husband, Bradford Wells, a U.S. citizen who has AIDS.

"There is still a long fight ahead to get full equality for this couple and other couples," Soloway said.

The lawyer, who heads an organization called Stop the Deportations, said President Obama should halt removals of same-sex spouses until the courts decide whether DOMA is constitutional. Heterosexuals can sponsor their spouses for legal immigration status, but DOMA prohibits sponsorship for same-sex spouses.

Soloway said deportation would have barred Benshimol from applying to return to the United States for 10 years and could have destroyed the marriage, because Venezuela probably would have prevented Gentry from emigrating.

Obama announced in February that he considers DOMA to be an unconstitutional act of discrimination and would no longer defend it in court. Congressional Republicans have taken over the defense in cases around the nation, including suits in San Francisco and Oakland over the denial of family insurance coverage to spouses of government employees.

Since then, immigration courts, an arm of the Justice Department, have put deportation orders of same-sex spouses on hold in a handful of cases. Last Tuesday, an immigration judge closed the deportation case of Raul Sinense, a Filipino national who lives with his husband, Peter Gee, in Oakland.

Hardship case in New Jersey

The Obama administration dropped deportation proceedings in June against another gay man, Henry Velandia of New Jersey, after Attorney General Eric Holder told immigration courts to reconsider a spousal hardship issue in a similar case.

Then on June 17, ICE's director, John Morton, announced changes in deportation policies affecting many categories of immigrants, including same-sex spouses.

Morton said officers should focus its resources on deporting criminals and repeat violators. On Thursday, Homeland Security Secretary Janet Napolitano said her department would use the new criteria to review 300,000 pending deportation cases.

The immigration judge in Benshimol's case, Marilyn Teeter, suspended his deportation order last month and gave ICE 60 days to decide whether to proceed. The agency's reply, dated Aug. 11, was the first to grant relief from deportation to a same-sex spouse since Morton announced the policy change.

Soloway said Benshimol fit ICE's declared standards: He has U.S. family ties and no criminal record, is a law-abiding member of his community, and has no remaining connections with Venezuela.

"This is not the end of the fight, but it's a very important step along the way," the attorney said.

Three alleged members of an international alien smuggling scheme were charged Tuesday with smuggling hundreds of aliens from China into the United States. The charges stem from an investigation conducted by U.S. Immigration and Customs Enforcement's (ICE) Homeland Security Investigations (HSI).

HSI agents arrested Hak Tung Lam, 44, of Flushing, N.Y., Wen Wo Lam, 43, of Staten Island, N.Y., and Ying Yang, 30, of Flushing, for allegedly participating in smuggling more than 450 aliens into the United States. Hak Tung Lam, an immigration attorney who practiced in Manhattan, Wen Wo Lam, and Ying Yang allegedly served as legal advisors to alien smugglers by recommending ports of entry, advising on methods of avoiding detection, filing false immigration documents, and obtaining the release of detained aliens through fraud.

"As an officer of the court, Hak Tung Lam swore to uphold the laws and constitution of the United States. Instead, he used his training and education to allegedly perpetrate one of the most wide-ranging criminal fraud schemes that this office has ever investigated solely for his personal financial gain," said James T. Hayes, Jr., special agent in charge of HSI in New York. "HSI will continue to pursue those individuals who seek to take advantage of this country's legal immigration system for their own benefit and at the expense of others."

"For Hak Tung Lam, zealous representation of his clients - a group of international alien smugglers - allegedly meant assisting them in breaking the law," said Preet Bharara, U.S. attorney, Southern District of New York. "He and his co-defendants were allegedly responsible for facilitating a smuggling operation that brought hundreds of illegal aliens into this country and for preserving their phony legal status once they arrived. The profits were big, but the price they will now pay, if convicted, is much higher."

According to court documents, from October 2006 to February 2009, Hak Tung Lam worked with others to smuggle approximately 468 Chinese nationals into the United States. During that time, Lam provided legal and logistical advice to alien smugglers and made false immigration filings on behalf of the smuggled aliens. He earned close to $1 million for his participation in this smuggling ring. Earlier this summer, Lam was caught in an HSI undercover operation, providing advice and making false filings for an individual working for HSI whom Lam believed was in the business of alien smuggling. Wen Wo Lam and Ying Yang assisted Lam by, among other things, providing advice, collecting money, and coaching the aliens on what lies to include in their immigration filings.

Hak Tung Lam, Wen Wo Lam, and Ying Yang, are each charged with one count of conspiracy to commit alien smuggling. Hak Tung Lam is also charged with one count of alien smuggling. On the conspiracy count, each defendant faces a maximum sentence of 10 years in prison. On the substantive count, Hak Tung Lam faces a maximum sentence of 15 years in prison.

Attorney Ekaterina Powell from our office wrote this great article on maintaining H-1B compliance procedures by employers.

If you are an H-1B employer, you need to be familiar with the H-1B regulations and Labor Condition Application (LCA) compliance procedures. Each employer petitioning for an H-1B worker has to file a Labor Condition Application, containing a number of employer’s attestations, which each employer has to abide by. The penalties for LCA violations are severe, ranging from payment of back wages and civil money penalties to debarment from the H-1B program.

Many employers filing H-1B petitions are unfamiliar with the compliance measures that can, unfortunately, lead to employer’s sanctions.

Therefore, it is critical for all companies that employ foreign workers under H-1B program to keep themselves up-to-date with the compliance measures and strictly follow the recordkeeping requirements. It is advisable for all employers to have a competent legal counsel who could guide them through the H-1B filing and, most importantly, H-1B compliance. A lot of attorneys practicing in the area of nonimmigrant work visas do not provide advice on H-1B compliance as part of the H-1B filing process leaving the employers unaware of the regulations and the possible sanctions for H-1B program’s violations. As a result, employers suffer from sanctions because ignorance or inefficient assistance of counsel is not a defense in DOL’s prosecution and will not eliminate penalties.

Specifically, each H-1B employer should know its obligations once H-1B worker’s employment relationship is terminated. Often times, even though employment relationship is considered terminated under state law, the employer remains liable under the LCA regulations.

In a recent case In the matter of Kevin Limanseto v. Ganze & Company, CASE №: 2011-LCA-00005, issue date 06/30/2011, the Administrative Law Judge found that the employer’s failure to prove every element of bona fide termination, including payment of the H-1B employee’s return trip home, leaves the employer liable for wages for the entire period of authorized employment on the LCA.

In this decision, because the employer was not able to prove every element of bona fide termination of employment relationship, the employer was assessed back wages, interest and other penalties for the entire 3 years of the validity of the LCA, even though the employer terminated the H-1B worker before the proposed H-1B start date.

In that case, the H-1B employee, Limanseto was working for the petitioner, Ganze, under F-1 status. Ganze filed H-1B petition on behalf of Limanseto, which was granted on May 9, 2008 for the three-year period running from October 1, 20008 to September 21, 2011. The employment relationship between the parties was terminated six weeks before the H-1B start date on October 1, 2008. However, ALJ has not found that termination of the employment relationship was bona fide, i.e. sufficient to terminate the H-1B employer’s liabilities as to the LCA’s attestations.

A bona fide termination of an H-1B worker requires the employer to prove three things:
1. notice to the worker (which Ganze has shown);
2. notice to Immigration and Customs Enforcement (currently USCIS), authorities so that the Form I-129 ―Petition for a Nonimmigrant Worker can be cancelled; and
3. payment for the worker‘s transportation home.

An employer with an approved labor condition application also should withdraw it at the Department of Labor to end its obligation to pay the required wage rate. 20 C.F.R. § 655.750(b).

Even though the employer has provided the H-1B worker with the termination of employment notice, it was not enough to relieve the employer from the wage obligation. The ALJ noted that until the employer informs the immigration authorities of the employment termination, “the employer remains on the hook for the H-1B worker‘s wages and benefits.”

In that case, USCIS promptly revoked Limanseto’s H-1B immigration status more than two years later, when Ganze eventually reported that Limanseto wasn’t employed.

However, the ALJ went further and stated that informing the immigration authorities and cancelling the H-1B is not enough. “When it [employer] perfected the second element of a bona fide termination, Ganze might have been relieved of its obligation to pay Limanseto’s wages when it sent the required notice on August 26, 2010. But Ganze remains liable because he can’t prove the third element of a bona fide termination. To ensure that Limanseto would be able to depart before the three-year employment period Ganze requested had ended, the final element of a bona fide termination required Ganze to pay for his trip home.”

This recent case shows that strict compliance with the H-1B regulations is critical in order to relieve the H-1B employers from possible liabilities. Payment for transportation home is one of the elements of bona fide termination of employment relationship.

Prospective employers of an H-1B nonimmigrant, should be aware that “the employer will be liable for the reasonable transportation costs of return transportation of the alien if the alien is dismissed from employment by the employer before the end of the period of authorized admission.” This would not apply if the employee voluntarily terminates his employment prior to the expiration of the H 1B petition validity.

Please note that the Department of Labor looks closely at any situation where there is any question about whether the H-1B nonimmigrant quit his employment (in that case, payment for transportation costs is not required) or whether the worker was dismissed from his job.

This recent case shows that failure on the employer’s part to notify USCIS and pay return transportation costs (when required) would likely result in a finding that the employer has not effected a “bona fide termination” of the employment relationship rendering it liable for back wages.

In Limanseto, the ALJ stated that “the failure to prove every element of a bona fide termination leaves an employer who petitioned for an H-1B worker‘s admission liable ―for the entire period of authorized employment.” [emphasis added]

As a result, the ALJ found that Ganze owes pre-judgment and post-judgment interest on all the amounts due, including back wages for the entire validity of the H-1B petition and the legal fees Ganze had Limanseto pay for its H-1B petition from the time he paid them.
This case shows how important it is for all H-1B employers to be well aware of the H-1B rules and to maintain compliance measures in order to protect themselves from possible sanctions in case of a DOL’s investigation.

Our law office helps employers with filing the H-1B petitions, setting up easy to follow H-1B compliance systems, and defending employers in case of DOL’s investigations. As part of our H-1B services, we educate the H-1B employers and their HR departments on H-1B regulations, the documents that the employers need to keep as part of the H-1B employees’ public access files, the procedures that the employers need to follow if there are any changes in employment relationship or job location, or if there is a termination of employment relationship.

For more information on H-1B filing or H-1B compliance measures, please contact our office.

The Obama Administration's Immigration announcement is not an Amnesty program. The consumer advisory from AILA put out a warning stating that:

Do not believe anyone who tells you they can sign you up for a work permit (Employment Authorization Document or "EAD") or get you legal status based on the Secretary Nepolitano's August 18, 2011 announcement. Anyone who says that is not to be trusted. There is no “safe” way to turn yourself in to immigration and there is no guarantee that your case will be considered “low priority.” any person who comes into contact with immigration authorities may be arrested, detained or even removed. Only a qualified immigration lawyer can evaluate your case and tell your about your rights. Do not seek legal advice from a notario or immigration consultant.

The Obama Administration announcement is not an amnesty, it is not about granting legal status, and it is not something that you can sign-up for. The Obama Administration made very clear that the announcements do not provide any way to “apply” for a work permit or “EAD” nor is there a new way to apply to remain in the United States. The change announced is not about giving people work permits or legal status. The announcement applies ONLY to cases already in the system, ensuring that low priority cases do not continue to clog up an already overburdened immigration court system.

The Obama Administration announced the creation of a high-level working group made up of Department of Homeland Security and Department of Justice officials who are to do the following:

- Review all cases already pending before the immigration courts. Those that are considered “low priority” may be administratively closed. Those that are considered a “high priority” will be prosecuted more aggressively;

- There are no rules or guarantees that a particular type of case will be considered a “low” or “high” priority. Recent guidelines are helpful, but no one can tell you if your case is a low priority--only immigration authorities will make that decision.

- In the future, immigration authorities will review the cases people before they are placed in removal proceedings. Those that are “low priority” may not be referred to the immigration court.

- Create department-wide guidance to help USCIS, CBP, and ICE agents and officers make better, more consistent decisions about who to place in removal proceedings;

- Issue guidance on providing discretion in compelling cases for persons who already have a final order of removal.

In other words, the August 18th announcement was preliminary and nothing has been implemented yet. Any details about how the review process will work, what cases will be considered low priority or how to have a particular case considered have not been decided.

The best course of action is to consult an immigration lawyer or accredited representative, not to take action because a friend, neighbor or coworker encourages you to act. Even if a friend, neighbor or coworker encourages you to act, do not try to contact immigration authorities or fall for a scam! At this time, there is no application to fill out, no form that can be filed, no filing fee that can be paid and no guidance from immigration authorities at all as to how the review of cases will happen.

Eventually, as the government decides how to proceed, that information should be available from official government websites, such as USCIS.gov and USICE.gov, or the website of the American Immigration Lawyers Association, www.aila.org.

The Announcement does NOT mean that all “low priority” cases will automatically be granted a work permit or EAD The Administration’s announcement said that if a case is administratively closed, the individual will be able to apply for a work permit (employment authorization document or “EAD”). But there are no details, guidelines or instructions on how to apply for an EAD, or who will be eligible for an EAD. Unless you are already eligible for an EAD under existing regulations and guidelines, you should not go to immigration and ask for an EAD, or apply to immigration for an EAD or you risk losing several hundred dollars in filing fees. More information on what an EAD is and how much it costs to apply for one is found below.

What are “low priority” cases?
The factors for determining low priority cases will likely be based on the June 17, 2011 memo on prosecutorial discretion. However, just because a case seems to fall into one or more of those categories, does NOT automatically mean that it will be considered “low priority.” The people reviewing the cases will be looking at the “totality of the circumstances” and each file will be reviewed on a case-by-case basis. It is unclear how different factors will be considered and weighed. Given that there are approximately 300,000 cases pending, it is also unclear when a particular case might be reviewed.

What is administrative closure?
Administrative closure applies only to an individual whose case is already before the immigration judge. When a case is administratively closed, it means that the case is no longer active and no action will be taken, including no future hearings, unless and until either the government or the noncitizen asks for the case to be made active again. A person whose case is administratively closed is still in removal proceedings. Administrative closure is not legal status. It is simply a temporary suspension of an immigration court case.

Will I get legal status from the Administration’s announcement?
No. According to the announcement, cases that are deemed to be of low priority will either (1) be administratively closed, or (2) no enforcement action will be taken. This is not an amnesty or legal status, but rather a temporary decision not to use limited government resources to deport low priority individuals.

The Administration has also stated that individuals whose cases are administratively closed will be eligible to apply for a work permit (or EAD). An EAD means that an individual can legally work in the United States and obtain a social security number for work. In some states, having an EAD also means you can apply for a drivers license or other identification). An EAD does not give a person legal status--it is just temporary permission to work.

What is an EAD?
An EAD or employment authorization document (also known as a work permit) is a temporary document that gives an individual permission to work lawfully in the United States. An EAD is generally valid for one or two years (though it is unclear at this time how long an EAD under this policy will be valid), and can generally be renewed. The application fee is currently $380, though individuals who can demonstrate financial hardship may be eligible for a fee waiver. An EAD is not an immigration status in and of itself.

With this consumer advisory report, individuals who may be in this situation should better understand what the announcement from the Department of Homeland Security was about. If you are in a position where you feel you might be deported, our law firm can help ensure that you stay in the U.S.

Attorney Ekaterina Powell from our office has prepared this article on acquiring U.S. citizenship through parents where the individual is born abroad.

In certain situations, a person who was born abroad to a U.S. citizen parent and who has been living abroad for years may have acquired U.S. citizenship at birth without even knowing so. Sometimes, the clients have not even met their U.S. citizen parent/s.

Often times, we are asked a question on whether an adult person who was born abroad to a U.S. citizen mother or father can obtain U.S. citizenship.

The answer to this question is not simple. Persons born abroad to U.S. parent/s may have acquired U.S. citizenship at birth. This determination is based upon a variety of factors: the law in effect at the time of birth, the amount of time the American citizen parent/s have lived in the U.S. prior to the birth of the child, and, in some cases, the marital status of the biological parents.

If you were born abroad to a U.S. citizen and if you are eligible for U.S. citizenship, you may apply for a U.S. passport or for a Certificate of Citizenship. If you apply directly for a U.S. passport, the determination on whether you qualify for a U.S. citizenship will be processed at the same time with your passport application.

Below is the description on how you can qualify for a U.S. citizenship if you were born abroad, in wedlock, to U.S. citizen parent and alien parent. If you born out of wedlock, there are special rules that apply to you that are not covered by this article.

In order to be considered to have acquired citizenship at birth, the following requirements have to be met: 1) a citizen parent 2) prior to child’s birth 3) had been physically present in the United States or one of its outlying possessions for the required period of time that is determined based upon the date of child’s birth.

If you were born on or after November 14, 1986, the required period of physical presence of your citizen parent is 5 years prior to child’s birth, at least 2 of which after the citizen parent reached the age of 14.

So, at least 2 out of 5 required years have to be after the citizen parent is 14 years old. In other words, the required 5 years of physical presence may occur after the citizen parent reaches the age of 14.

If you were born on or after December 24, 1952 but before November 14, 1986, the required period of physical presence of your citizen parent is 10 years, with at least 5 of these years after the citizen parent reaches the age of 14.

If you were born before December 24, 1952, there are special retention requirements that apply to you that have to be analyzed carefully.

Good examples of evidence to show the requisite period of physical presence are school records, transcripts, leases, employment records, social security records, affidavits from family and friends, etc.

Since the law is complex in this area, the immigration officers who review N-600, Certificate of Citizenship Applications, may become confused and require you to present evidence of 10 years of physical presence in the U.S. by your citizen parent even though you are only required to prove 5 years of physical presence.

In a recent case handled by our law office, U.S. citizen father has spent most of his life in Mexico. His kids were born in Mexico and have never lived in the U.S. When the application for Certificate of Citizenship was submitted, the clients were asked to present proof of citizen father’s physical presence in the U.S. for 10 years. The father had spent in the U.S. only 8 years while attending high school and college before the kids were born. The clients came to us after the case was filed and before the scheduled interview with the immigration. When we met with the clients, we found out that the kids were born after 1986, and therefore the citizen father had to prove only 5 years of physical presence in the U.S. prior to the birth of the kids instead of 10 years that the immigration officer requested. When we got engaged with the case and went to the interview at the local immigration office, we made sure that the officer acknowledges that only 5 years of physical presence have to be proven. The case was successful, and the kids have obtained their Certificates of Citizenship.

Even immigration officers are mistaken sometimes. If a situation described above happened to you, do not automatically assume that you do not qualify for U.S. citizenship. If you are not sure if you are eligible for U.S. citizenship, you can consult our law firm. We will be happy to go over the details of your case and determine whether you qualify for U.S. citizenship.

In the wake of protests on Department of Homeland Security (DHS) prosecutorial discretion for removal cases, DHS Secretary Janet Napolitano announced a new process for implementation of the June 17, 2011, prosecutorial discretion memorandum. The letter included a background two-pager.

From the background two- pager – “the new interagency process is designed to ensure that resources are focused on the Administration’s highest enforcement priorities. As part of this process, an interagency team of DHS and Department of Justice (DOJ) officers and attorneys, including representatives from throughout DHS and from the Executive Office for Immigration Review (EOIR) and the Office of Immigration Litigation at DOJ, will identify low-priority removal cases that should be considered for an exercise of discretion. This review will be conducted on a case-by-case basis and will consider cases that are at the various stages of enforcement proceedings, including charging, hearing, and after a final order of removal. The interagency working group will also issue guidance to prevent low priority cases from entering the system on a case-by-case basis. Resources that are saved as a result of this process will be used to accelerate the removal of high priority cases.”

The guidance from DHS is a good indication that the protests and the voice of the people is being heard. At a time when immigration enforcement has been highlighted by a wave of states enacting their own laws, DHS is showing that it is using its prosecutorial discretion to handle cases that warrant removal, including high profile cases involving convicted felons who are a threat to public safety. Although the letter stresses that it cannot make any categorical distinction for removal cases, such as those who might fall under the DREAM Act if it were passed, the director of DHS strongly believes in the Act and will continue to make efforts involving Congress to get it passed, including testifying before Congress. So even though DHS leadership stresses a need to enforce immigration laws, there is a feeling that reform is necessary so that our resources are being put in the right direction.

A program that is central to President Obama’s immigration enforcement strategy has drawn protests by Latino and immigrant organizations in six cities in the last two days, as those groups stepped up their confrontation with the administration over the fast pace of deportations.

In Los Angeles, about 200 immigrants and their supporters walked out of a stormy hearing Monday evening that was called by a task force advising the enforcement program, known as Secure Communities. Bearing signs that said “Stop Ripping Families Apart,” the protesters called for an end to the program, which they said had led to the deportation of victims who reported domestic violence to the police, and to parents of American citizen children.

On Tuesday in Chicago, several dozen protesters delivered thousands of petitions calling for an end to the program to the headquarters of Mr. Obama’s re-election campaign. Petitions were also delivered by small groups of protesters to Democratic Party offices in Miami, Atlanta, Houston and Charlotte, N.C.

About two dozen prominent immigrant advocacy organizations issued a report denouncing the program and calling on the administration to halt it.

Organizers said the protests were a response to an announcement on Aug. 5 by Immigration and Customs Enforcement, the federal agency that runs Secure Communities, that the program would continue to expand to meet its declared goal of covering the whole country by 2013. Clarifying doubts about whether states and cities could choose whether to participate, John Morton, the agency’s director, said that agreements with state and local officials were not required for the agency to proceed.

President Obama has made no headway in a divided Congress toward an immigration overhaul that would give legal status to millions of illegal immigrants. At the same time, in each of the last two years immigration authorities have deported nearly 400,000 people.

Under Secure Communities, fingerprints of anyone booked into jail by the state and local police are sent to the F.B.I. for criminal checks — long a routine practice — and also to the Department of Homeland Security, which records immigration violations. Immigration agents decide whether to detain noncitizens signaled by fingerprint matches.

The ferment on Tuesday exposed vastly differing views of the program between immigrant advocates and Obama administration officials. In an interview, Mr. Morton said the program was working effectively to carry out his agency’s focus on deporting immigrants convicted of serious crimes.

“It’s the law, and we think it is very good policy, to focus our resources on people who are here unlawfully and also committing crimes,” Mr. Morton said.

He said agency figures showed that about 90 percent of those deported under Secure Communities since it was started in 2008 were either convicted criminals or foreigners who had failed to obey a court order to leave the country or who had returned to the United States illegally after deportation.

Immigration officials pointed to the arrest in January in Los Angeles of a Mexican man on charges of driving with a suspended license. After a Secure Communities match, the police learned that he had been convicted of drug trafficking and burglary and deported six times. Another Mexican arrested in Los Angeles was found to have been convicted in the killing of a child in 1997.

Mr. Morton said he had created the advisory task force, which went to work in June, to recommend fixes that would lower the numbers of deportations of illegal immigrants who did not have criminal convictions.

Also on Tuesday, the American Immigration Lawyers Association published a report that cast light on how Secure Communities and other enforcement programs have stirred tensions in immigrant communities. The association, which includes 11,000 immigration lawyers, polled its members to see how many were handling cases of immigrants facing deportation after being stopped by local police officers for minor offenses, like traffic violations.

Gregory Chen, director of advocacy for the lawyers’ association, said his office was deluged with responses.

“Department of Homeland Security practices have ushered in a sea change in who is being deported, and our attorneys have literally been flooded with people coming in to their offices who have been picked up by local police for small time stuff,” Mr. Chen said. The report, which presents a sample of 127 cases from 24 states, was the “the tip of the iceberg,” he said.

Continue reading "Federal Policy Resulting in Wave of Deportations Draws Protests" »

There is bipartisan interest in Congress in reforming high-skill immigration. New legislation is on its way, and here's what to watch for. What bills have been introduced or are coming?

In the House, the most important Democratic initiative is from Zoe Lofgren (D-Calif.), whose district includes Silicon Valley. Her bill would make green cards available to students who earn advanced degrees in science, technology, engineering and mathematics -- the so-called STEM fields. However, it isn't expected to go anywhere.

The person to watch instead is Rep. Lamar Smith (R-Texas), who heads the House Judiciary Committee. Smith appears interested in some limited immigration changes expected in a bill from Rep. Jason Chaffetz (R-Utah). Chaffetz's bill, which is due "soon," is expected to call for elimination of the per-country limits on employment-based visas -- as green cards are officially called.

The U.S. has a cap of 140,000 employment-based visas a year. Spouses and children of the workers are counted against that cap. The U.S. limits the number of green cards per country to no more than 7% of the total available visas. In India, where there is a big demand for green cards, the wait for one can be as long as 10 years. This is significant in terms of the availability of green cards to immigrants across the board.

If the per-country cap were eliminated, green card applicants who have been waiting the longest might see their expected waiting times reduced. But applicants from countries with relatively short wait times might find themselves waiting longer. Tech companies might support elimination of the per-country cap, since that would likely increase the availability of workers from China and India. Employers will take what they can get, but they might be hoping for something better out of the Senate.

Sen. Charles Schumer (D-N.Y.), who heads the Senate subcommittee on immigration, said this week that he intends to introduce legislation that, similar to Lofgren's bill, will "staple" green cards to the diplomas of people who earn degrees in STEM fields. He is also promising reform of the H-1B visa process in his bill.

Overall outlook: If Schumer follows through and the House Judiciary Committee also produces legislation, a limited, targeted immigration reform bill could emerge. Both parties have strong reasons to please the tech industry.

Continue reading "A Guide to H-1B and Green Card Reform" »

The following sample questionnaire was released by AILA for the benefit of H1B employers. U.S. Citizenship and Immigration Services (USCIS), through its Office of Fraud Detection and National Security (FDNS), has implemented an on-site audit program that subjects H-1B employers to random site visits to verify information provided in H-1B petitions.

FDNS’s mission is to detect and deter immigration fraud as well as to make sure that benefits are not provided to anyone posing a threat to national security or public safety. FDNS site visits are unannounced. They take place at the employer’s principal place of business and/or at the workplace location indicated on the H-1B visa petition filed with USCIS. FDNS uses these visits to verify information about the company and to confirm that the H-1B employee is actually working in compliance with the information provided in the visa petition, including hours, job duties, rate of pay, and education requirements.

H-1B employers should have action plans in place that employees can follow in the event of an unannounced FDNS audit. Any employees who may potentially be involved in the site visit should be made aware that this type of audit is possible. They should be advised of what the site visit involves and what actions they should take such as contacting counsel; requesting the name, title, and contact information of the site inspector; and accompanying the inspector at all times during the site visit.

Blow you will find a sample intake form presented to an H1B employer and all the questions asked:

Petitioner Employment Verification Questionnaire

Part I Employer Information (Petitioner):

␣ Name ␣ Address ␣ Number of employees ␣ Number of H1B employees

Employee Information (Beneficiary):

␣ Name ␣ DOB ␣ Address ␣ Phone # ␣ Worksite Address (list all) ␣
Provide the exact dates of employment at each worksite location as applicable ␣ Worksite Phone Number

␣ Work Hours ␣ Salary ␣ Date employment started ␣ Provide the end date of the current project/job ␣ Duty title and general role or responsibility in the job ␣

How much vacation and sick time does the beneficiary receive? ␣ Has the beneficiary been away from work other than normal sick or vacation time? If so,
explain the circumstance(s) and provide documentation.

Beneficiary’s Supervisor Information:

␣ Name ␣ Title ␣ Phone # ␣ Employer ␣ Worksite Address

Continue reading "H1B Visa Attorney - Site Visit (FDNS) Fraud Detection and National Security Verification Questionnaire Sample" »

Citing the Defense of Marriage Act, the Obama administration denied immigration benefits to a married gay couple from San Francisco and ordered the expulsion of a man who is the primary caregiver to his AIDS-afflicted spouse.

Bradford Wells, a U.S. citizen, and Anthony John Makk, a citizen of Australia, were married seven years ago in Massachusetts. They have lived together 19 years, mostly in an apartment in the Castro district. The U.S. Citizenship and Immigration Services denied Makk's application to be considered for permanent residency as a spouse of an American citizen, citing the 1996 law that denies all federal benefits to same-sex couples.

The decision was issued July 26. Immigration Equality, a gay-rights group that is working with the couple, received the notice Friday and made it public Monday. Makk was ordered to depart the United States by Aug. 25. Makk is the sole caregiver for Wells, who has severe health problems.

"I'm married just like any other married person in this country," Wells said. "At this point, the government can come in and take my husband and deport him. It's infuriating. It's upsetting. I have no power, no right to keep my husband in this country. I love this country, I live here, I pay taxes and I have no right to share my home with the person I married."
Husband's pleas

Wells pleaded with Homeland Security Secretary Janet Napolitano and President Obama to intervene.

"Anyone can identify with the horror of having the government come in and destroy your family when you've done nothing wrong, and you've done everything right, followed every law," Wells said.

The agency's decision cited the Defense of Marriage Act as the reason for the denial of an I-130 visa, or spousal petition that could allow Makk to apply for permanent U.S. residency. "The claimed relationship between the petitioner and the beneficiary is not a petitionable relationship," the decision said. "For a relationship to qualify as a marriage for purposes of federal law, one partner must be a man and the other a woman."

Continue reading "San Francisco Gay Married Couple Loses Battle With Immigration" »

Last week, the U.S. House of Representatives passed two immigration bills before members left for their summer recess.

The first bill, H.R. 398, was sponsored by House Immigration Subcommittee Ranking Chair Zoe Lofgren (D-CA) and would amend the law that stipulates a 90-day period during which time an alien and petitioning spouse must file a petition and complete an interview to remove the alien's conditional legal permanent resident status. Under the new legislation, the period of time would be placed on hold while either partner is a member of the U.S. military serving abroad, in order to extend the deadline.

The second bill, H.R. 1933, was sponsored by House Judiciary Chair Lamar Smith (R-TX) and would reinstate an expired program that admits nonimmigrant nurses in shortage areas for health professions. The new proposal would allow the government to issue 300 visas per year to eligible foreign nurses. The visas would be valid for three years and would be renewable for an additional three-year period. Now let us see what the Senate will do with respect to the above referenced bills.

State lawmakers considered a record number of immigration-related bills this year, highlighting their continued frustration with federal government inaction on immigration laws, according to the National Conference of State Legislatures.

A total of 1,592 bills were introduced in all 50 states and Puerto Rico in the 2011 legislative session that ended June 30, a report by the bipartisan research organization found.

Legislators in 40 states enacted 151 of the bills, which mainly addressed law enforcement, identification and employment issues, said Ann Morse, program director of the conference’s immigrant policy project. An additional five laws were vetoed by governors.

Five states — Alabama, Georgia, Indiana, South Carolina and Utah — created laws similar to a controversial Arizona immigration law, known as SB 1070, which requires law enforcement to check the immigration status of people they lawfully stop and whom they suspect to be in the country illegally.

All five of those laws have been challenged in federal court, with opponents citing federal preemption and violation of the 4th and 14th amendments.

“The level of interest in the states is still very high,” Morse said. “What we’re seeing is a frustration with the federal government that it won’t take up these issues.”

An uptick in states’ legislation began in 2005, when 300 bills were introduced and 38 laws were enacted, Morse said.

At that time, states focused primarily on social services and naturalization issues, areas lawmakers believed the federal government was failing to address. But as frustrations with the federal government began to rise, so did the amount of legislation that was introduced, Morse said.

President Obama has said that his administration is continuing its efforts to overhaul the immigration system, but Republicans have become unwilling partners.

While running for office in 2008, Obama said that he would deal with immigration reform in his first year. After the healthcare overhaul received top priority, it became increasingly less likely that he would be able to pass a bill until after the 2012 election.

By 2007, over 1,500 states’ bills were introduced and 240 were signed into law. The high numbers have held relatively steady since.

Today, lawmakers address “virtually everything you can think of,” Morse said.

Ten states passed legislation requiring employers to use E-Verify, an online program that uses federal databases to check whether employees are in the country legally and authorized to work.

New laws in Maryland and Connecticut will allow illegal immigrants to be eligible for in-state tuition. In California, Gov. Jerry Brown signed the Dream Act, easing access to privately funded financial aid for undocumented college students.

Six states — Alabama, Idaho, Kansas, Michigan, South Dakota and Utah — passed laws requiring that sex offender registries include a requirement of proof of citizenship or immigration documents.

“It’s a push and pull between what the federal government does or doesn’t do and what the states end up doing themselves,” Morse said.

With state legislators trying to address so many different issues that immigration impacts, federal immigration reform is needed to address these issues that states are addressing themselves.

Recently, USCIS published new guidelines for the Employment Based Second Preference (EB-2) Immigrant Visa Category. In particular the new guidelines outline how Entrepreneurs can apply under the National Interest Waiver under this visa category. An Entrepreneur qualifies under this category in two ways, as a person holding an advanced degree, and a person who has an exceptional ability in the arts, sciences, or business.

First, the Entrepreneur must show that he or she is a person who holds an advanced degree or an individual of exceptional ability. Next, the Entrepreneur must show that their work is in the national interest. Although the term "national interest" is not defined by law, the case of New York State Department of Transportation has a three prong test that the Entrepreneur must meet in order to qualify. The three prongs of the test are:

1. The waiver applicant must seek employment in an area that has substantial intrinsic merit.
2. The waiver applicant must demonstrate that the proposed benefit to be provided will be national in scope.
3. The waiver applicant must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the waiver applicant by making available to U.S. workers the position sought by the waiver applicant.

Under the first prong of the NYSDOT test, the Entrepreneur must seek employment in an area that has substantial intrinsic merit. It is important for the Entrepreneur to focus on the proposed employment rather than the entrepreneur’s qualifications. In NYSDOT, the beneficiary was a structural engineer working on highway bridges. This activity was found to have substantial intrinsic merit.

Under the second prong of the NYSDOT test, it requires that the Entrepreneur demonstrate that the proposed benefit to be provided will be national in scope. For example, the Entrepreneur might be able to demonstrate that the jobs his or her business enterprise will create in a discrete locality will also create (or “spin off”) related jobs in other parts of the nation. Or, as another example, the Entrepreneur might be able to establish that the jobs created locally will have a positive national impact. As described below, and as the law contemplates, USCIS will give due consideration to Entrepreneurs who establish that their entrepreneurial enterprise will serve the national interest to a substantially greater degree than the work of others in the same field.

Finally, NYSDOT’s third prong is best understood in light of the labor certification process and the assumed benefit that it provides to the United States. An individual seeking an exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process. NYSDOT’s third prong requires that the Entrepreneur “present a significant benefit to the field of endeavor.” The field should be the same as that identified in prong one of the analysis and the Entrepreneur must document how the entrepreneurial enterprise will benefit that field.

NYSDOT states:

“In all cases, while the national interest waiver hinges on prospective national benefit, it clearly must be established that the beneficiary’s past record justifies projections of future benefit to the national interest. The petitioner’s subjective assurance that the beneficiary will, in the future, serve the national interest cannot suffice to establish prospective national benefit if the beneficiary has few or no demonstrable achievements.”

The Entrepreneur who demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for an NIW. For example, the Entrepreneur may not be taking a job opportunity from a U.S. worker but instead may be creating new job opportunities for U.S. workers. The creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.

Based on the new guidelines, the Entrepreneur is now an individual who may get a visa under the National Interest Waiver. They must still meet the requirements under the current case law in order to prevail on a National Interest Waiver petition, but this bodes well for many individuals seeking to take their entrepreneurial spirit and making a difference on a national level. If you are an Entrepreneur that has an idea that might be in the national interest, please contact our office for a free consultation so we can help you out. Let us hope that this new classification provides new opportunities for many Entrepreneurs out there.

USCIS updated the Q & A document on employer-employee relationships for the purpose of determining H-1B eligibility. This updated Q & A follows from the memo entitled, "Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements.

The updated Q & A document addresses several key points of the memo, including clarifications on the types of evidence that can be submitted to USCIS to demonstrate an employer-employee relationship and what a petitioner should do if specifically-requested documentation is not available or does not exist.

Specifically, USCIS states that the types of evidence that can be submitted to demonstrate the employer-employee relationship can be those listed in the original memo, which include:

* An itinerary of services or engagements;
* A copy of the signed employment agreement between the petitioner and beneficiary;
* A copy of an employment offer letter that clearly describes the nature of the employer-employee relationship and the services to be performed by the beneficiary;
* A copy of relevant portions of valid contracts between the petitioner and a client;
* Copies of signed contractual agreements; and
* Statements of work, work orders, service agreements, and letters between the petitioner and the authorized officials of the ultimate end-client companies where the work will actually be performed by the beneficiary.

However, the Q & A clarifies that a petitioner may demonstrate that it has a valid employer-employee relationship with the beneficiary by submitting similar probative types of evidence.

USCIS also clarifies in the Q & A document that, unless a document is required by the regulations (i.e. an itinerary), a petitioner may submit a combination of any documents that sufficiently establish the required relationship. The petitioner should explain how the documents establish the relationship, and USCIS advises that adjudicators will review and weigh all the evidence submitted to determine whether a qualifying employer-employee relationship has been established.

In addition, the updated Q & A document specifically explains the process for submitting additional evidence upon receipt of a Request for Evidence (RFE), and clarifies that petitioners must establish that they maintained a valid employer-employee relationship throughout any period of previous authorized employment, and that the valid employer-employee relationship shall continue for the duration of the requested employment.

Finally, USCIS explains that in a sole-owner situation, it may still be possible for the petitioner to demonstrate that there is an employer-employee relationship if, for example, the petitioner submits evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise, or otherwise control the beneficiary.

The last clarification is important as we have several H1B clients who are interested in self employment options.

USCIS Director Alejandro Mayorkas discusses on the official USCIS blog, The Beacon, how current immigration policies will spur job growth and bolster the U.S. economy. The United States has a long, rich history of welcoming innovative entrepreneurs and skilled workers into our country. These men and women fuel our nation’s economy by creating jobs, and promoting new technologies and ideas. Secretary of Homeland Security Janet Napolitano and outlined a series of new policy, operational, and outreach efforts that will help fuel the nation’s economy and stimulate investment by making it easier for high-skill immigrants to start and grow companies and create jobs here in the United States.

Encouraging the kinds of streamlining measures USCIS is taking today has been one key focus of the President's Council on Jobs and Competitiveness because they help ensure that America can continue to out-innovate and out-compete the world in a global economy.

As part of the Administration’s comprehensive effort to attract and retain high-skill entrepreneurs, USCIS announced that it will:

-Clarify that immigrant entrepreneurs may obtain an employment-based second preference (EB-2) immigrant visa if they satisfy the existing requirements, and also may qualify for a National Interested Waiver under the EB-2 immigrant visa category if they can demonstrate that their business endeavors will be in the interest of the United States;

-Expand the Premium Processing Service to immigrant petitions for multinational executives and managers;

-Clarify when a sole employee-entrepreneur can establish a valid employer-employee relationship for the purposes of qualifying for an H-1B non-immigrant visa;

-Implement fundamental enhancements to streamline the EB-5 process based directly on stakeholder feedback;

-Launch new engagement opportunities to seek input and feedback on how to address the unique circumstances of entrepreneurs, new businesses and start up companies.

Mr. Mayorkas is also launching "Conversations with the Director", a new series of small group meetings he will hold to discuss immigration issues important to communities around the country. The first meeting will focus on economic development and the EB-5 investor program.

With all these policy changes, this is a sign that USCIS and DHS are working to help bring more immigrants into the U.S. who can help make an impact on our economy and spur job growth. At a time where Americans are concerned about the government's debt, this is a great chance for our immigration policies to help make an impact on our debt and have an impact on other important social issues like unemployment. We will see in the coming months how these new policies shape up.

A couple weeks ago, Representative Luis V. Gutierrez, a Democrat from Illinois who has become a perennial thorn on immigration for President Obama, was arrested Tuesday afternoon along with about a dozen activists in a protest outside the White House.

The protesters were arrested peacefully after they sat down on the White House sidewalk, following a rally where demonstrators denounced the Obama administration for deporting more than one million immigrants in the last two years.

In a letter to Mr. Gutierrez on Monday, Mr. Obama rejected his proposal to suspend deportations of illegal immigrant college students with clean criminal records. Last week, Mr. Gutierrez and three other House Democrats had sent a letter to the president requesting the suspensions and also asking him to take executive measures to make it easier for illegal immigrants married to American citizens to remain in the United States.

Mr. Gutierrez said he decided to go ahead with the protest after receiving Mr. Obama’s response. “It didn’t disappoint me as much as I was saddened,” Mr. Gutierrez said in an interview after he paid a $100 fine and was released by the police. He was arrested in May 2010 in a similar protest.

In his letter, Mr. Obama argued that immigration authorities had succeeded in increasing the numbers of convicted criminals among immigrants who are deported, while deporting fewer immigrants who lack legal status but have not been convicted of any crime. In 2010, Mr. Obama wrote, 51 percent of deportees were convicted criminals, while 49 percent had noncriminal violations. Two-thirds of the noncriminal deportees had either committed multiple violations of immigration law (which is generally a civil offense) or had been caught at the border soon after crossing illegally, Mr. Obama wrote.

On Monday, in a speech at a meeting of the N.C.L.R., or National Council of La Raza, a Hispanic civil rights organization, the president appealed to Hispanic leaders, including Mr. Gutierrez, to help him pass a broad overhaul of the immigration laws by focusing pressure on Republicans.

“I need you to keep building a movement for change outside of Washington, one that they can’t stop,” said Mr. Obama, referring to Republican lawmakers. While his reception at the Latino gathering was generally enthusiastic, when the president said he could not unilaterally cancel student deportations, groups of students stood up from the audience and chanted, “Yes you can!”

The partisan conflict over immigration policy was on full display on the Hill on Tuesday. At a Senate Judiciary subcommittee hearing convened by Senator Charles Schumer, a New York Democrat, top executives from Microsoft and Nasdaq OMX appealed for more flexible visas for immigrants with technology and science skills, warning that the United States is losing the global competition for talented entrepreneurs who can lift the economy.

But at a House Judiciary subcommittee hearing convened by Representative Lamar Smith, a Texas Republican, the president of an immigration agents’ union, Chris Crane, delivered scathing criticism of the administration, saying officials are pandering to immigrant groups at the expense of public security. Mr. Crane, president of the union of employees of Immigration and Customs Enforcement, said ICE agents broadly rejected recent measures by agency leaders to allow some immigrants to avoid deportation.

“Law enforcement and public safety are no longer a priority at ICE,” Mr. Crane said. “Politics are the priority at ICE.”

Many groups are feeling the pressure that has come from the enforcement policies of the Obama administration. While those within the agency feel there needs to be more strengthening on the law enforcement side, Congressman Gutierrez's arrest demonstrates how law enforcement is not directed at the right individuals. Comprehensive immigration reform is still necessary to protect and keep those in the U.S. who contribute to our society.

Here we go again. A federal grand jury has indicted a former Sacramento immigration consultant and 13 other individuals alleging they participated in an elaborate immigration fraud scheme in which foreign nationals from Eastern Europe and Russia paid to enter into sham marriages with locally recruited U.S. citizens.

For foreign nationals, marriage to an American citizen is one means of obtaining lawful permanent residency in the United States. To initiate that process, aliens who are outside the country must apply for a fiancé visa, which enables them to travel to the United States to marry the citizen spouse. Alternatively, foreign nationals who are already in the United States and entered the country legally, may wed here and apply for lawful permanent residence based upon the marriage.

According to court documents, the scheme involved foreign nationals from Eastern Europe and Russia who paid fees of up to five figures to enter into sham marriages with U.S. citizens. U.S. Attorney Benjamin B. Wagner announced the unsealing of the multi-count indictment charging former immigration consultant Sergey Potepalov, 55, of Citrus Heights, Calif., and the other defendants with conspiring to commit marriage fraud, defrauding the United States, making false statements, and inducing aliens to enter and remain in the United States.

This case is the product of an ongoing long-term investigation spearheaded by U.S. Immigration and Customs Enforcement (ICE) Office of Homeland Security Investigations (HSI), with substantial assistance from U.S. Citizenship and Immigration Services and the Department of State's Diplomatic Security Service. Assistant U.S. Attorney Daniel S. McConkie is prosecuting the case.

The maximum penalty for the first three conspiracies alleged in the indictment is up to five years in prison. The latter conspiracy carries a maximum penalty of up to 10 years in prison. Unfortunately, Immigration fraud is on the rise as more and more people are trying to immigrate to the US. At the same time criminals are using the desire to immigrate to the US to make lots of money. We command the government for busting this ring and hope this will teach a lesson for those attempting to profit from fraud marriage schemes.